Locating the Sharīʿa. Legal Fluidity in Theory, History and Practice

282 Pages·2019·1.2 MB·English

by  Sohaira Siddiqui

Locating the Sharīʿa
Studies in Islamic Law
and Society
Founding Editor
Bernard Weiss
Editorial Board
Ruud Peters
A. Kevin Reinhart
Nadjma Yassari
VOLUME 48
The titles published in this series are listed at brill.com/sils
Locating the Sharīʿa
Legal Fluidity in Theory, History and Practice
Edited by
Sohaira Z.M. Siddiqui
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
Names: Locating the Sharīʿa (Conference) (2014 : University of California,
 Santa Barbara). | Siddiqui, Sohaira Zahid, editor.
Title: Locating the sharīʿa : legal fluidity in theory, history and practice
 / edited by Sohaira Z.M. Siddiqui.
Description: Leiden ; Boston : Brill Nijhoff, 2019. | “The genealogy of this
 volume begins, as many volumes do, at a conference at the University of
 California Santa Barbara in February 2014 titled “Locating the Sharīʿa :
 Creating New Sources for Knowledge and Inquiry”—ECIP introduction. |
 Includes bibliographical references and index.
Identifiers: LCCN 2019000988 (print) | LCCN 2019001419 (ebook) |
 ISBN 9789004391710 (ebook) | ISBN 9789004377103 (hardback : alk. paper)
Subjects: LCSH: Islamic law—Congresses.
Classification: LCC KBP15 (ebook) | LCC KBP15 .L63 2019 (print) |
 DDC 340.5/9—dc23
LC record available at https://lccn.loc.gov/2019000988
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.
issn 1384-1130
isbn 978-90-04-37710-3 (hardback)
isbn 978-90-04-39171-0 (e-book)
Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands.
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Contents
Notes on Contributors vii
Introduction 1
Part 1
Reflections on the Study of the Sharīʿa
1 The Roots of Persuasion and the Future of Sharīʿa 13
Khaled Abou El Fadl
2 Sectarianism and Integration
Contemporary Categories and the Prospects for Islamic Legal Studies 28
Robert Gleave
3 Gender and Legal Fluidity 46
Marion Katz
4 Translating The Fatigue of the Sharīʿa 63
Ahmad Atif Ahmad
Part 2
Study of the Sharīʿa in the Classical Period
5 Qurʾānic Jihād Refracted through a Juridical Lens
An Exercise in Realpolitik 75
Asma Afsaruddin
6 Al-Ḥadīth al-Mashhūr
A Ḥanafī Reference to Kufan Practice? 89
Sohail Hanif
7 Taking a Theological Turn in Legal Theory
Regional Priority and Theology in Transoxanian Ḥanafī Thought 111
Dale J. Correa
vi Contents
8 Maṣlaḥa as a Normative Claim of Islamic Jurisprudence
The Legal Philosophy of al-ʿIzz b. ʿAbd al-Salām 127
Rami Koujah
Part 3
Study of the Sharīʿa in the Modern and Contemporary Periods
9 A Conservative Jurist’s Approach to Legal Change
Ashraf ʿAlī al-Thānawī on Women’s Political Rule 153
Salman Younas
10 Legislating Morality and Other Illusions about Islamic
Government 176
Asifa Quraishi-Landes
11 Relocating Dār al-Islām
Contemporary Islamic Perspectives on Territoriality 205
Sarah Albrecht
12 Religion, Politics, and the Anxiety of Contemporary Maṣlaḥa Reasoning
The Production of a Fiqh al-Thawra after the 2011 Egyptian
Revolution 226
David H. Warren
13 Whither Islam?
Western Islamic Reform and Discursive Density 249
Ovamir Anjum
Index 267
Notes on Contributors
Khaled Abou El Fadl
is the Omar and Azmeralda Alfi Distinguished Professor of Law at the Uni-
versity of California at Los Angeles (UCLA) School of Law. He is the author
of Reasoning with God: Reclaiming Shari’ah in the Modern Age (Rowman and
Littlefield, 2014); Speaking in God’s Name: Islamic Law, Authority and Women
(Oneworld Press, 2001); Rebellion and Violence in Islamic Law (Cambridge Uni-
versity Press, 2001); The Search for Beauty in Islam: A Conference of the Books
(Rowman and Littlefield, 2006); The Great Theft: Wrestling Islam from the Ex-
tremists (HarperSanFrancisco, 2005), among others.
Asma Afsaruddin
is Professor of Near Eastern Languages and Cultures in the Hamilton Lugar
School of Global and International Studies at Indiana University, Blooming-
ton, USA. She is the author and editor of seven books, including Contemporary
Issues in Islam (Edinburgh University Press, 2015); and Striving in the Path of
God: Jihad and Martyrdom in Islamic Thought (Oxford University Press, 2013)
which won the World Book Award in Islamic Studies from the Iranian govern-
ment (2015) and is being translated into Bahasa Indonesian. Among others, her
research has been funded by the Harry Frank Guggenheim Foundation and the
Carnegie Corporation of New York.
Ahmad Atif Ahmad
is a Professor of Religious Studies at the University of California in Santa
Barbara (UCSB). He also serves on UCSB’s ‘Council on Faculty Issues and
Awards’ and the UC-System wide Academic Advisory Committee. He previous-
ly served as associate director of the University of California Center in Wash-
ington, and Sultan Qaboos Chair of Mideast Studies at the College of William
and Mary. The author of five books including, Islamic Law: Cases, Authorities,
and Worldview (London: Bloomsbury, 2017), The Fatigue of the Shariʿ̄a (NYC:
Palgrave, 2012), and Structural Interrelations of Theory and Practice in Islamic
Law (Leiden: Brill, 2006), Ahmad teaches courses on Islamic legal reasoning in
medieval Islam and early modern Egypt.
Sarah Albrecht
PhD, is a lecturer and research associate at Freie Universität Berlin. She is the
author of Dār al-Islām Revisited. Territoriality in Contemporary Islamic Legal
Discourse on Muslims in the West (Brill 2018) and Islamisches Minderheitenrecht:
viii Notes on Contributors
Yūsuf al-Qaraḍāwīs Konzept des fiqh al-aqallīyāt (Ergon 2010) and the co-editor
of Conceptualising Muslim Diaspora (Special Issue of the Journal of Muslims in
Europe 2016).
Ovamir Anjum
is the Imam Khattab Endowed Chair of Islamic Studies at The University of
Toledo in Philosophy & Religious Studies Department, and affiliated faculty in
History. His work focuses on the nexus of theology, ethics, politics, and law in
classical and medieval Islam, with comparative interest in Western thought.
Besides his monograph, “Politics, Law and Community in Islamic Thought:
The Taymiyyan Moment” (Cambridge University Press, 2012), he has authored
numerous articles and speaks internationally, and is the editor of the Ameri-
can Journal of Islamic Social Sciences. His forthcoming works include a mono-
graph on violence and rebellion in Islamic political thought, a general survey of
Islamic history, and a translation of Ibn al-Qayyim’s Madārij al-Sālikin̄ (Ranks
of Divine Seekers).
Dale J. Correa
PhD, is Middle Eastern Studies Librarian and History Coordinator at the
University of Texas at Austin. Dr. Correa specializes in Islamic legal theory,
theology, and philosophy, with a particular interest in the intellectual tradition
of the eastern regions of the Islamicate empire (namely, Transoxania, which
is today in Uzbekistan/Tajikistan). Her current project examines the develop-
ment and flourishing of the Transoxanian approach to testimony, or commu-
nication—that is, the transmission of knowledge of a past event by agents over
time and space. Dr. Correa currently serves as Vice President/President-Elect
of the Middle East Librarians Association.
Robert Gleave
is Professor Arabic Studies at the University of Exeter, UK. He is principal
investigator of the European Research Council advanced award “Law, Learn-
ing and Authority in Imami Shi’ite Islam” in which Shī’ī legal thought it set
within the wider context Islamic legal development. He is author of Inevitable
Doubt: Two Shīʿī Theories of Jurisprudence (Brill, 2001), Scripturalist Islam: The
Thought and Doctrines of the Akhbari School of Imāmī Shiʿism (Brill, 2007) and
Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory
(Edinburgh University Press, 2012).
Notes on Contributors ix
Sohail Hanif
is a Lecturer in Islamic Studies at the Cambridge Muslim College where he also
manages the BA program in Islamic Studies. He works on Islamic legal theory
with a focus on the Ḥanafī school of law. He received an MA and DPhil from
the University of Oxford with a doctoral thesis entitled “A Theory of Early Clas-
sical Ḥanafism: Authority, Rationality and Tradition in the Hidāyah of Burhān
al-Dīn ‘Alī ibn Abī Bakr al-Marghīnānī (d. 593/1197).” His publications include
“A Tale of Two Kufans: Abū Yūsuf’s Ikhtilāf Abī Ḥanīfa wa-Ibn Abī Laylā and
Schacht’s Ancient Schools,” Islamic Law & Society, 25 (2018): 173–211.
Marion Katz
is a Professor of Middle Eastern and Islamic Studies at NYU. She received a
BA from Yale and a PhD from the University of Chicago. She has taught at
Franklin and Marshall and Mount Holyoke College. Her research revolves
around issues of Islamic law, gender, and ritual. Her publications include Body
of Text: The Emergence of the Sunni Law of Ritual Purity (SUNY Press, 2002), The
Birth of the Prophet Muhammad (Routledge, 2007), Prayer in Islamic Thought
and Practice (Cambridge, 2013) and Women in the Mosque (Columbia Univer-
sity Press, 2014).
Rami Koujah
is a PhD candidate at Princeton University’s Near Eastern Studies department.
He earned his JD from Stanford Law School, MSt in Oriental Studies from the
University of Oxford, and graduated as a Departmental Scholar in Islamic
Studies from the University of California, Los Angeles.
Asifa Quraishi-Landes
is a Professor of Law at the University of Wisconsin Law School, specializing
in comparative Islamic and U.S. Constitutional law. She is a 2009 Carnegie
Scholar and a 2012 Guggenheim Fellow. She is currently working on a book
project, presenting a non-theocratic and non-secular model of Islamic consti-
tutionalism for today’s Muslim-majority countries.
Salman Younas
is a PhD candidate at Oxford University. He graduated from Stony Brook
University with a degree in Political Science and Religious Studies. After com-
pleting his undergraduate degree, he moved to Amman, Jordan, where he
studied spent an extensive period studying Arabic and the traditional Islamic
sciences. In 2013, completed his MA in Oriental Studies at Oxford University
x Notes on Contributors
with honors. Currently, he is a final-year doctoral student at the University of
Oxford investigating the evolution of Islamic law in the late formative period
with a specific focus on the Hanafi school.
David H. Warren
is a Postdoctoral Research Fellow at the University of Edinburgh, focusing on
the role of the ʿulamāʾ as actors and theorists during the Arab Spring and its
aftermath. His current book project is titled, For the Good of the Nation: The
Contest Over the Egyptian Revolution Among the Sunni ʿUlamāʾ and his recent
publications include “Cleansing the Nation of the ‘Dogs of Hell’: ʿAli Jumʿa’s Na-
tionalist Legal Reasoning in Support of the 2013 Egyptian Coup and its Bloody
Aftermath,” International Journal of Middle East Studies 49:3 (2017): 457–77.