The search for God's law : Islamic jurisprudence in the writings of Sayf al-Dīn al-Āmidī / Bernard G. Weiss
- Machine generated contents note: The Shari'a as a body of categorizations of human acts (al-ahkam al-shar'iya), -- The Shari'a as law and as morality, -- The emphasis upon the Shari'a as law in this book, -- The Shari'a as exhortation, -- Nonnormative categories of the Shari'a, -- The articulation of the Shari'a as a human task, -- Fiqh and usul alfiqh, -- The approach to the study of Islamic jurisprudence taken in this book, -- The historical development of Islamic jurisprudence, -- Amidi's place within that development, -- Aristotelian influence on Amidi, -- Amidi's definitions of fiqh and usul al-fiqh, -- The subject matter, topics, postulates, and end of the science of jurisprudence, -- Amidi's life, -- ch. One The Theological Postulates -- Epistemology/methodology and substantive theology as the two facets of kalam, -- Epistemological/methodological postulates, -- Knowledge and its types, -- The reasoning process, -- Dalil (proof, indicator) as an instrument of reasoning, -- The art of disputation, -- Amidi as dialectician, -- The dialectical format of the Ihkam, -- Substantive-theological postulates, -- Amidi's theology as natural theology: its connection with metaphysics, -- The argument for God's existence, -- Arguments for the reality of the divine attributes, -- Amidi's criticism of the method of qiyas al-gha'ib ala'l-shahid, -- Amidi's use of syllogism and conceptual analysis in defending the reality of the divine attributes, -- The divine acts: creation as an exclusively divine act, human agency as created agency, -- God's acts as free from the governance of ends, -- God's speech as attribute, not act: internal versus verbal speech, -- God's speech and the concept of revelation in Islam, -- Amidi's cosmology, -- Knowledge derived from revelation and its rational foundation, -- The attestation of prophethood through miraculous signs, -- The Qur'an as the miraculous sign of Muhammad's prophethood, -- ch. Two The Fiqh Postulates -- The interdependence of practical jurisprudence (fiqh) and theoretical jurisprudence (usul al-fiqh), -- God as the sole categorizer of human acts: the rejection of Mu'tazili rationalist jurisprudence, -- Why acts are not good or bad "by virtue of their essences," -- Why an act cannot be said to be obligatory on rational grounds, -- The covenantal basis of the divine law, -- Definition of a Shari'a categorization (hukm), -- The explication of the six types of Shari'a categorizations: explication-through-disjunction, -- Explication through formal definition, -- Compatibility of the two methods of explication, -- The Shari'a categorizations as law and as morality, -- Implications for human freedom, -- Use of the term "rules," -- The Shari'a categorizations and the concepts of the command (amr) and the charge (taklif) -- Nonnormative categorizations (al-ahkam al-wad'iya), -- What sorts of acts may be the object of a charge, -- What sorts of agents may be under a charge, -- ch. Three The Lugha-Related Postulates -- Preliminary matters, -- The origin of the Lugha: the Lugha as a body of sound-meaning correlations, -- The Lugha as sunna, -- Semantic modification through 'urf, -- The knowledge of the Lugha, -- The classification of vocables (alfaz): the semantic interest, -- The four methods of classifying nouns, -- The haqiqa-expression and the majaz-expression, -- Excursus on the zahir expression, -- Notes on the term majaz, -- wad'-based, 'urf-based, and Shari'a-based expressions, -- Whether majaz-expressions are to be counted as part of the Lugha, -- Whether Shari'a-based expressions are to be counted as part of the Lugha, -- Whether the Lugha really includes such things as synonyms and homonyms, -- The categories of valid indicators, -- The hierarchical relationships between these categories, -- The relationship of these categories to the divine speech, -- The discussion of the indicators within the structure of the Ihkam, -- ch. Four The Qur'an And The Sunna -- Definitions of Scripture (Kitab) and Sunna: how Scripture and Sunna differ, -- Whether the criterion of tawatur-scale transmission enters into the determination of a valid Qur'anic indicator, -- Controversies over meaningless expressions, figurative expressions, and non-Arabic expressions in the Qur'an, -- Issues pertaining to the Sunna: the concept of the impeccability of prophets, -- The four possible stances one may take toward another person, -- Whether acts of the Prophet are paradigmatic, -- The problem of contradiction between one act of the Prophet and another, -- The problem of contradiction between an act and a saying of the Prophet, -- Whether the Prophet's silence can constitute an endorsement, -- ch. Five The Ijma' -- Explanation of the expressions "the Ijma'," "Ijma'ic," and "consensus" as used in this book, -- The Ijma' as a category of texts, -- Definition of the Ijma', -- Historical background of the Muslim controversies over the Ijma', -- The logical order of Amidi's treatment of issues pertaining to the Ijma', -- Whether the Ijma' is possible, -- Whether an Ijma'ic consensus, once it has occurred, is knowable, -- Whether the Ijma' constitutes an authoritative indicator of the law, -- Rational versus textual arguments for the authority of the Ijma', -- Whether the issue of the authority of the Ijma' is mas'ala qat'iya or mas'ala zanniya: the distinction between sure and probable indicators, -- Problems with the rational argument for the authority of the Ijma', -- Queanic indicators of the authority of the Ijma', -- Sunnaic indicators of the authority of the Ijma', -- Contrast between the "infallibility" of the community and the "infallibility" of the Prophet, -- Contrast between the authority of the Ijma' and the authority of individual mujtahids, -- The inconsequentiality of the Muslim failure to reach a consensus upon the authority of the Ijma', -- Whether the participants in an Ijma'ic consensus must be Muslims and contemporaries of each other, -- Whether commoners must be included along with mujtahids among the participants in an Ijma'ic consensus, -- Whether an innovating mujtahid must be included, -- Whether the Ijma' of the Companions is alone authoritative, -- Whether a consensus of the Companions is authoritative if qualified mujtahids of the second generation living at the time of the conclusion of the consensus were excluded, -- Whether the consensus of the people of Medina is in and of itself authoritative, -- Whether the consensus of the family of the Prophet, or of the first four caliphs, or of the first two caliphs, is authoritative in and of itself, -- Whether the opinion of the majority of mujtahids is constitutive of the Ijma', -- Whether a "large number" sufficient to rule out the possibility of collusion is necessary for the constitution of an Ijma'ic consensus, -- Whether the silence of the mujtahids in the face of a known opinion is constitutive of the Ijma', -- Whether the establishment of an Ijma'ic consensus is conditional upon the demise of all the participants, -- Whether an Ijma'ic consensus can be established without there being a prior indicator of the law that gave rise to the consensus, -- Whether an Ijma'ic consensus may emerge out of the opinions (as opposed to knowledge) of mujtahids, -- Whether one may affirm the existence of a particular Ijma'ic consensus on the basis of reports of solitary individuals (khabar al-wahid), -- Whether the division of the people of a particular age between two opinions is tantamount to an Ijma'ic consensus to the effect that these two opinions alone will be acceptable in the future, -- Whether the use of particular indicators by the original participants in an Ijma'ic consensus disallows the introduction of further indicators in support of the same consensus, -- Whether the division of the people of a particular age between two opinions disallows a future Ijma'ic consensus on one of the two opinions, -- Further Ijma'-related issues, -- Conclusions drawn from Amidi's discussions of the Ijma', -- ch. Six The Transmission Of Texts -- The textual character of the indicators of the law thus far considered: the text as an orally transmitted datum, -- The bearing of the concept of the report (khabar) on the transmission process, -- Oral transmission of texts as an ongoing reconstitution of texts, -- Contrast between the kinds of texts used in Islamic law and those used in modern Western law, -- Why the medieval Muslims were more interested in orally transmitted texts than in written texts, -- Amidi's definition of khabar, -- The three methods of classifying reports, -- The concept of tawatur and its role in Muslim epistemology, -- Amidi's definition of tawatur, -- The conditions governing tawatur, -- The irresistibility of the tawatur principle, -- Whether knowledge arising from a mutawcitir report is necessary or deduced, -- The concept of mutawatir meaning, -- The definition of the report of the individual (khabar al-wahid), -- Whether the trustworthiness of individuals gives rise to the knowledge that their reports are true: the rigorist versus the liberal points of view, -- Other factors believed by some to give rise to the knowledge that the report of the individual is true, -- Whether a report of a trustworthy individual constitutes an authoritative indicator of the law, -- The procedures entailed in the determination of the trustworthiness of an individual reporter, -- The modalities of the transmission of a report from one individual to another, -- The various factors that may fault a report of a trustworthy individual, -- ch. Seven Commands -- The text as manzum and the text as ghayr manzum: explicit and implicit meaning, -- The distinction between explicit meaning (sarih) and clear meaning, -- The importance of the if'al form, -- The translation of amr and nahy as "positive command" and "negative command," -- Command as act versus command as category of speech, -- How command as category of speech is to be defined, --, Contents note continued: Remarks on the notion of law as an expression of God's will, -- The command as a calling for an act (talab al-fi'l), -- Whether or not the question of whether there is a linguistic form peculiar to the command may be properly raised, -- Overview of issues relating to the import of the if form, -- Remarks on the phrasing of these issues, -- Linguistic forms as bearers of meaning, -- Summary of Amidi's thinking about the if form, -- The if al form as zahir-signifier of the command: talab al-fi'l as its sole literal sense, -- Whether the if'al form signifies as its sole literal sense something more specific than the calling for an act, -- Whether the if'al form signifies, as part of its sole literal sense, that the act called for is to be performed repeatedly throughout one's lifetime, -- Whether the if'al form, when conjoined with a condition or attribute, signifies a calling for repetition of the act, -- Whether the if'al form signifies, as part of its sole literal sense, that the act called for is to be performed as soon as possible, -- Whether the if'al form signifies, as part of its sole literal sense, a calling for the nonperformance of all the contraries of an act, -- Controversy over the meaning of qada', -- Whether the if'al form signifies, as part of its sole literal sense, a calling for a compensatory performance of an act in the event that the act is, in the first instance, performed in a faulty manner, -- Controversy over the use of the if'al form to relay a command to a third party, -- Whether the if'al form can signify a calling for a universal essence, -- Whether if'al if'al represents two separate commands or a single command, -- Issues relating to the negative command (nahy) -- Final remarks: Amidi's emphasis on the co-functionality of the if'al (or la taf'al) form and its context, -- ch. Eight General And Unqualified Expressions -- Introductory remarks, -- Definition of the general expression ('amm), -- Definition of the specific expression (khass), -- Absolute and relative senses of ''specific" and 'general," -- Definitions of unqualified (mutlaq) and qualified (muqayyad) expressions, -- The "forms of general reference" (siyagh al-'umum), -- Whether there are in the Lugha forms which signify general reference as their sole literal sense: alternative ways of stating this most central issue, -- Rationale for speaking of linguistic forms as signifying general reference, -- The four positions on the issue under consideration and their ramifications, -- Amidi's justification for his noncommittal stance, -- Arguments of the partisans of general reference (arbab al-'umum) and Amidi's response to them, -- Arguments of the other parties in the controversy, -- Why Amidi gives a detailed account of the intramural controversies of the partisans of general reference, sometimes taking a position, when he does not count himself as one of them, -- Indicators of specific reference (adillat takhsis al-'amm): attached and detached indicators, -- Whether a general expression is, in respect to its signification of a specific reference, to be considered haqiqa or majaz, -- Whether a mujtahid may, having determined that a given expression signifies a specific reference, proceed to formulate the law on the basis of that specific reference, -- Whether phrases such as "O people!" and "O believers!" are addressing only the original live audience or both the original audience and all subsequent generations, -- Whether divine speech that is addressed specifically to the Prophet should be treated as addressing the entire community at the same time, -- Whether females are among the referents of the plural that bears the mark of the masculine gender and of the indefinite pronoun "whoever," -- Whether slaves are among the referents of general expressions, -- Reasons for translating takhsis al-'amm as "indication of specific reference": diversion from literal to nonliteral reference, -- Majoritarian theses regarding unattached indicators of specific reference (adillat takhsis al-'amm al-mun-fasila) and the arguments supporting them, -- Issues relating to the unqualified (mutlaq) expression, -- ch. Nine Ambiguity, Lucidity, And Diversion To Nonapparent Meaning (Ta'wil) -- Introductory remarks, -- Ambiguity: definition of the ambiguous expression, -- Examples of ambiguity, -- Whether a statement such as "Forbidden to you is swine-flesh" should be considered ambiguous by virtue of its being elliptical, -- Whether "cut" and "hands" in "Cut off their hands" should be considered ambiguous, -- Whether an expression's admitting of both a literal and a nonliteral meaning constitutes ambiguity, -- Whether an expression's admitting of both a technical Shari'a-related meaning and an ordinary literal meaning constitutes ambiguity, -- Lucidity: lucidity as the opposite of obscurity, -- Definition of bayan and mabayyan: bayan as "elucidation" or "elucidator," -- Examples of elucidated speech, -- Whether an act of the Prophet may serve as elucidator, -- Whether a saying of the Prophet takes precedence over an act of the Prophet as elucidator of an obscure passage or vice versa, -- Whether an elucidating passage must be equal in probative strength to the passage it elucidates, and whether it should be equal to it in respect to how it categorizes a given act, -- Whether it is possible for an elucidation of an obscure passage to be delayed until the time when it is needed, -- Further issues having to do with elucidation, -- Diversion to Nonapparent Meaning (Ta'wil): definition of zahir: zahir meaning as "apparent" meaning, -- Definition of ta'wil, -- How the distinction between haqiqa-expressions and majaz-expressions relates to the discussion of zahir and ta'wil, -- Legitimacy of ta'wil, -- Conditions of validity of ta'wil, -- Issues relating to ta'wil, -- ch. Ten Implication -- Ghayr manzum as an indicator: implication, -- The four types of implication, -- Dalalat al-mafhum: construed implication and its types, -- Congruent, or a fortiori, implication (mafhum al-muwafaqa), -- Controversy over congruent implication: its relation to the use of analogy, -- Counterimplication (mafhum al-mukhalafa), -- Whether counterimplication is a valid basis upon which to formulate the law, -- Whether one may construe a counterimplication in cases where the thing explicitly mentioned in the text is mentioned on account of being generally (but not always) true, -- ch. Eleven Abrogation -- Abrogation as limited to Qur'anic and Sunnaic texts, -- The definition of abrogation, -- The difference between abrogation and progressive realization (bada') -- The difference between abrogation and indication of specific reference (takhsis al-'amm) -- The conditions of abrogation, -- Whether abrogation is theoretically possible, -- Whether abrogation has actually occurred, -- Whether it is possible that the Legislator, upon introducing a rule, would abrogate it before anyone had a chance to implement it, -- Whether a text that expressly states that a rule is perpetually operative signifies that the rule may never be abrogated, -- Whether a rule may be abrogated without being replaced by another rule, -- Whether a rule may be replaced by a more demanding rule, -- Issues relating to the abrogation of the recitation of texts (Qur'an, Khabar) as distinct from the abrogation of what the texts signify, -- Overview of issues having to do with what may be abrogated by what; comparison with similar issues having to do with indication of specific reference (takhsis al'amm), -- Whether an Ijmi'ic text may abrogate or be abrogated, -- Whether an abrogation may occur by way of analogy and whether an analogy-based rule may be abrogated, -- Overview of issues having to do with abrogation as an inter-textual operation involving only Qur'anic and Sunnaic texts, -- Whether it is possible for a rule found in a Sunnaic text to be abrogated by a Qur'anic text, -- Whether it is possible for a rule found in a Qur'anic text to be abrogated by a mutamitir Sunnaic text, -- Whether a rule found in a mutawiitir Sunnaic text may be abrogated by a non-mutawatir Sunnaic text, -- Whether there are situations in which the abrogation of a particular rule necessitates the abrogation of some other rule, -- Whether an abrogation, when it is not immediately communicated by the Prophet to the community, becomes effective for the community at the time of its revelation or only after it has been communicated to the community, -- Whether the addition of new requirements to the requirements already specified in an existing rule constitutes an abrogation, -- Whether the abrogation of the part constitutes an abrogation of the whole, -- Whether the abrogation of a condition upon which the validity of a legal act rests constitutes an abrogation of the obligation to perform the act, -- Whether it is possible that God should abrogate rules of law that accord with the dictates of human reason, -- Whether it is possible that God should abrogate the entire law, -- The procedure a mujtahid should follow in attempting to determine when an abrogation has actually taken place, -- ch. Twelve Analogy: Definition And Conditions Of Validity -- Analogy (qiyas) as a paratextual indicator of the law, -- The structure of Amidi's lengthy treatment of analogy, -- The definition of analogy, -- The four essential constituents of an analogy, -- Justification of translating 'illa as "occasioning factor," -- Amidi's use of asl and far' to designate the principal (pre-existing) case and the novel case, -- The use of the word "case" as a rendering of mahall, waqi'a, haditha, sura: the act (fi'l) as the essential fact constituting a case, -- Conditions of validity of an analogy: conditions that pertain to the rule governing the principal case (hukm al-asl), -- Conditions that pertain to the rule-occasioning factor: overview of the conditions, -- Controversies related to the first two conditions, --, and Contents note continued: Overview of issues that pertain to the relationship between the feature (wasp of a case that occasions a rule governing the case and the rationale (hikma) behind the rule, -- Whether the occasioning factor behind the original rule in an analogy must not consist of a rationale that stands entirely by itself in the sense of not being accompanied by something that gives it determinacy (al-dabit), -- Whether the rationale to which the occasioning factor behind the original rule is tied must be uniformly coincidental with the rule, -- Whether the occasioning factor behind the original rule must serve to give determinacy to some rationale, -- Whether the occasioning factor behind the original rule must, as bestower of determinacy upon a rationale, be indispensable to the working of the rationale in the sense that the rationale will never obtain in a particular case apart from it, -- Significance of the four controversies just discussed, -- Overview of issues that pertain to the relationship between occasioning factors and the rules they occasion, -- Whether an occasioning factor behind a rule must be unrestricted in its operation as an occasioning factor, -- Whether a rule must always be inoperative in the absence of the occasioning factor, -- Issues having to do with the multiplicity factor: whether the occasioning factor behind a rule must consist of a single feature only, -- Whether the occasioning factor behind a rule may be a complex of separate occasioning factors, -- Further related controversies, -- Conditions that pertain to the novel case, -- ch. Thirteen Analogy: Ascertaining The Occasioning Actor -- Introductory remarks, -- Overview of the seven methods of determining which feature of an original case is the occasioning factor behind the rule governing that case, -- The methods of referral to the Ijma' and of referral to the explicit sense of a Qur'anic or Sunnaic text, -- The method of referral to an implied meaning of a Qur'anic or Sunnaic text, -- The method of elimination of alternatives, -- The method that seeks to arrive at a presumption in favor of the suitability (munasaba) of a particular feature of the case under consideration, -- Definition of "suitable," -- Analysis of the concept of an objective (maqsud) behind a rule, -- The question of the degree to which the establishment of a rule results in the realization of an objective of the Legislator, -- Amidi's classification of the objectives that may lie behind a rule of law, -- Whether the harmful consequences of a rule cancel out the suitability of the feature of the case thought to be its occasioning factor, -- The modality (kayfiya) of the entailment of a rationale in that, which gives determinacy to it, -- Three major categories of the suitable feature: muctabar, mulghah, and mursal, and the necessity of Mbar (evidence that the Legislator has taken a suitable feature into account), -- The arguments that prove that the combination of munasaba and i'tibar is indicative of a feature's being the occasioning factor behind a rule, -- The method of establishing the quasi-suitability (shabah) of a particular feature, -- The method of noting concomitance between a particular feature of a case and the rule that governs that case, -- ch. Fourteen The Defense Of Analogy -- Introductory remarks, -- Whether it is possible in purely rational terms for analogy to be an indicator of the law, -- Whether the indicator-status of analogies has the requisite textual basis, -- Whether the mention of an occasioning factor in a text warrants our saying that the text itself (not analogy) extends the rule to all cases subsumed under the occasioning factor, -- Whether recourse to analogy may be carried into the sphere of prescribed penalties (hudud) and expiations (kaffarat), -- Whether an occasioning factor behind a rule may itself be established on the basis of an analogy -- Whether it may be said that all rules of law are established on the basis of analogy, -- The dialectics of the use of analogy -- ch. Fifteen Istidlal And The Invalid Indicators Of The Law -- Istidlal as a residual category -- The syllogism: formal logic in Muslim jurisprudence, -- The syllogism as a method of rule-derivation, -- Types of categorical syllogisms with legal examples, -- Istishäb: explanation of this term, -- Controversy over istishab, -- Scriptures that came through earlier prophets (shar'man qablana), -- The doctrine (madhhab) of a single Companion, -- Istihsan, -- Al-Masälih al-mursala, -- ch. Sixteen Ijtihad And The Mujtahid -- Definition of ijtihad, -- Ijtihad and the probabilism of Amidi's jurisprudence, -- Qualifications of the mujtahid, -- Whether the Prophet engaged in ijtihad, -- Whether it is possible that Companions of the Prophet engaged in ijtihad while he was yet living, -- Controversies concerned with the consequences of the acceptance of disagreement among mujtahids, -- Whether anyone who disagrees with the cardinal tenets of Islam as a result of intellectual ijtihad is above sin, and whether in the realm of intelligible matters all who engage in intellectual ijtihad are above error, -- Whether mujtahids who hold conflicting opinions in the field of law are above sin, -- Whether mujtahids who hold conflicting opinions regarding a question of law are all above error, -- Whether it is possible for a mujtahid to be told, "You decide, for whatever decision you make is a correct decision," -- Controversy over ta'adul (treating conflicting indicators of the law as equal in probative strength), -- How to deal with contradictory statements attributed to great mujtahids, -- Whether a judicial decision, once rendered, may subsequently be invalidated, -- Whether a mujtahid may deliberately refrain from engaging in ijtihad on a case that falls within his competence as a mujtahid and, instead, adhere to the opinion of another mujtahid: the issue of taqlid, -- Whether a negative judgment must be based on an indicator, -- ch. Seventeen Consultation And Advice: The Mujtahid As Mufti -- Istifta' (consultation) as the primary concern of this chapter, -- Unjustified consultation (taqlid), -- The mufti, -- Who may or may not consult a mufti? -- Whether questions whose answers lie in the realm of known things may be resolved through consultation, -- Controversy over consultation of a mujtahid by a commoner, -- Whether commoners must be certain that those whom they consult have satisfied the qualifications for ijtihad, -- Whether it is necessary for a mujtahid who has previously engaged in ijtihad on a given problem to undertake a fresh ijtihad, -- Whether it is possible for any age to be devoid of a mujtahid who can issue fatwas, -- Whether one who is not a mujtahid may issue a fatwa based on the legal doctrine worked out by others who are mujtahids, -- Whether a commoner may choose freely between muftis, -- Whether a commoner who has obtained a fatwei from a mujtahid may turn to another mujtahid for a fatwa on the same problem, and whether he has this freedom of operation if he has declared adherence to a particular school (madhhab), -- Different relationships between indicators of the law, -- The handling of conflict between indicators, -- Definition of tarjih: determination of preponderance, -- Whether the mujtahid is under obligation to formulate the law on the basis of a preponderant (rajih) indicator and to ignore a nonpreponderant (marjuh) indicator, -- What type of indicators of the law may be weighed against each other for the purpose of determining preponderance: opinion-engendering versus knowledge-engendering indicators, -- Types of conflicts between indicators, -- Examples of preponderance selected from the Ihkam,.
- In Islam, God is the sole, ultimate lawgiver. Given the absence of a living prophet, all law worthy of the name must therefore be derived from texts that contain divine revelation or possess authority grounded in that revelation. Classical Muslim jurisprudents regarded the effort to discover divine law through these texts exceedingly demanding, since it requires one to grapple with an enormous array of difficult text-critical and hermeneutic issues. Although the Qur'an itself was considered above challenge, other texts had to be subjected to rigorous tests of authenticity, while the meaning of the texts, Qur'anic and non-Qur'anic, became a topic of intense debate. Without an ecclesiastic institution vested with authority to proclaim "correct" interpretations, the development of law through interpretation became a largely individualistic enterprise, though imbued with a keen sense of communal responsibility. -- and Using Amidi's work, Bernard Weiss explicates and discusses the various issues that define Islamic jurisprudence as an integrated system during the time of this important mainstream scholar. The Search for God's Law presents a lucid exposition of the relationship between sacred text and mundane law. It is the most comprehensive treatment of Islamic jurisprudence yet to appear in a Western language. --Book Jacket.
- 087480938X and 9780874809381
- Bibliography Note:
- Includes bibliographical references (pages 739-763) and index.
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