Wael B. Hallaq.
A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh.
Cambridge: Cambridge University Press, 1997. ix + 294 pp. Notes,
bibliography, index. $59.95 (cloth), ISBN 0-521-59986-5 ISBN
0-521-59027-2; $22.95 (paper), ISBN .
Earl Finbar Murphy , College of Law, Ohio State University.
of Islamic Legal Theory
This book is addressed to a four-part audience: (1) a wide
readership of persons both within and without Islamic studies, (2)
comparative lawyers, (3) students of religious studies and comparative
religion, and (4) those deeply interested in Islamic studies. As an
elementary text, it both is excellent as a survey of the Sunni legal
theories and as a source for scholars in the subject, who will be
stimulated by views generously provided them for additional study. The
bibliography is wide-ranging and Professor Hallaq's agreements and
disagreements with such leading Western scholars as Ignaz Goldziher and
Joseph Schact are an important part of an ongoing debate. The style is
smooth, inviting, and as easy as possible for introducing this challenging
subject to persons "without the field of Islamic studies" (p. viii).
The author's view is that the Quran is an assembled
document, compiled early in the period of the Companions. However, he
believes that the content is entirely from the period of the Prophet's
life -- his sayings, responses, and actions, all carefully compiled. No "Q
document" stands back of the Quran, unlike the Christian Gospels, nor is
there any place for a Jesus Committee to judge the authenticity of the
Parables. Also, while a substantial part of the Sunna, collected by the
pious over several centuries, were fabricated during the collection, there
is a body of material within them that occurred in the Prophet's time;
and, in any event, the core of the Sunna is "inspired by the vitally
important issues raised in the Quran" (p. 12).
The fact that the first two roots of Sunni jurisprudence
are the Quran and Sunna is historically justified. The other two of the
basic four roots are consensus (that is, among the legally learned, though
on occasion of the whole Islamic community) and qiyas (generally
translated as reasoning by analogy). Lesser roots, though of varying
importance among the Sunni schools and individual theorists, are juristic
preference (istihsan, which stems from switching among qiyas) and
reasoning on the basis of public interest or public utility (istislah).
Behind all roots of Islamic jurisprudence, however, is the
predicate of Islamic theology. The two are thoroughly integrated. No
Islamic legal theorist is indifferent to the religion of the Prophet or
critical of any authentic utterance of the Prophet. But Islamic theology
and law still are not the same. While a minority of verses in the Quran
deal with law, they are lengthy verses and they are indicative of a
juristic mentality capable of providing law. The Prophet had been an
arbitrator and this book asserts some of that pre-Islamic law, which
survives in these juristic verses. The Prophet's legal decisions can
change serially, as in the case of the prohibition of alcohol consumption,
ranging from prohibiting the individual from coming to services drunk to
prohibition of alcohol at all times and places. The language of juristic
verses is rational rather than revelatory, the product of one who knows
the law and changes its existing content for factually-based reasons.
The first three centuries of Islamic jurisprudence are
foundational, but are they equally so? Disagreement about how important
individual centuries may be divides scholars. Professor Hallaq accepts the
importance of the second century of Islam, but emphasizes the third
century as well and is less impressed with the 1st century than others.
For him, however, each of these centuries played an important role and
cannot be slighted. Indeed, jumping well ahead in time, he puts
substantial emphasis as well on the commentaries, which have been
dismissed by many modern scholars. Without the commentaries, the author
insists, Islamic jurisprudence would lack much of its richness and its
continued ability to provide fresh views. Is that not also true of any
century of Islamic legal theory?
The closing of the "gate of ijtihad" (p. 160), and the
arguments about that alleged event, are intricately entwined with the
movement of argument through the ages of Islamic jurisprudential thought.
Did the gates close in the tenth century C. E.? The thirteenth C. E.? In
the nineteenth C. E, when state legislation began replacing individual
jurists? Never? If closed, can the gates be reopened? Is the opening
occurring now at the turn of the twentiethth and twenty first centuries C.
E.? How many meanings does ijitihad have? All of these have been -- and
are -- grain for grinding in the mills of argumentation. A book note
cannot summarize all that this book has to say about ijitihad, but what it
does have to say should prevent anyone from referring casually to either
the closing or the opening of the "gate of ijtihad."
To the serious student of Sunni jurisprudence, his work
concerning the fourteenth century C. E. scholars, Tufi and Shatibi, could
be the most interesting. Tufi is a strong exponent of the supremacy of
public interest and public good and, consequently, has received much
attention among Islamic modernists. But this book gives far more attention
to Shatibi, who the modernists also have turned to in their work on
Islamic jurisprudence. Shatibi, an Andalusian, finding the law of his time
had not accommodated to contemporary socioeconomic conditions, set about
to create a theoretical foundation for that accommodation. As Professor
Hallaq says, more is in Shatibi's ideas than meets the eye and he sets out
to bring Shatibi's contributions into full view. Interestingly enough for
a writer of value to modernists, Shatibi regarded himself as one who
sought, with all else he attempted, to produce a theory in complete accord
with Islam. But, then, is that not what the modernists, perhaps especially
the religious liberals, mean to do?
When treating of the twentieth century C. E., Professor
Hallaq excludes from his consideration both secularists, who are
indifferent or even hostile to Shari^Ňa, as well as those who are among
the most conservative of self-proclaimed traditionalists. He divides his
attention between what he calls the religious utilitarians (whom he
regards as largely successful in their attempts at influence) and the
religious liberals, whom he regards as largely unsuccessful, although some
have been most inventive in their interpretations of the traditional
learning. His descriptions of their ideas, particularly that the Syrian
engineer/lawyer Shahrur, again could lead Islamic legal specialists into
further consideration of what these religious liberals propose. It would
seem more useful than abstract musings on opening the gates of ijitihad.
Still, Professor Hallaq's conclusion, despite his
recognition of the continued liveliness of Islamic jurisprudence, does not
cast a prediction of success on any of the current writers or movements.
"[T]he ultimate success of any legal methodology hinges not
only upon its intellectual integrity and a sophisticated level of
theorization but also for its feasibility in a social context. . . . It is
no coincidence .. . . the religious liberals have met stiff resistance
from a large and powerful segment of native Islamicist
movements. All of [the religious liberals]. . . offer new conceptions of
law and legal methodology that have proved thus far alien to the majority
of Muslims. . . We have seen that the religious utilitarianists pay no
more than lip service to traditional Islamic values; for their ultimate
frame of reference remains confined to the concepts of interest, need and
necessity. The revealed texts become, in the final analysis, subservient
to imperatives of these concepts" (pp. 253-254).
What the future holds, Professor Hallaq does not seek to
determine. The custom of our day does not favor the individual scholar, so
typical of Islamic legal theory from the time of the Prophet until the
nineteenth century C. E. Rather for over one hundred years, custom has
favored the lawyer who is part of the modern state apparatus, drafting
legislation and regulations, and trained in Western law. Even if the
lawyer is also trained in Shari'a, the thinking will be strongly
influenced by Western legal forms. Yet whatever happens, this book offers
reading of great value for anyone curious about the future -- as well as
the past -- of Sunni jurisprudence.
Library of Congress
Call Number: BP144 .H35 1997
* Islamic law -- Interpretation and construction
* Islamic law -- History
* Sunna -- History.
Citation: Earl Finbar Murphy . "Review of Wael B. Hallaq, A
History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh,"
H-Law, H-Net Reviews, December, 1999. URL:
“Professor Hallaq aims to
provide an account of both the history and the major themes of the genre
of Muslim legal writing known as usul al-fiqh (legal theory). The
book makes interesting reading, utilizing an impressive array of sources
and it equips the reader with a framework within which the ideas of
individual jurists can be positioned.”
Robert Gleave, review of
A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh,
by Wael B. Hallaq, Bulletin of the School of Oriental and African
Studies, University of London 61 (1998): 537-538.