[P3693] Morality in Islamic Law and Legal Theory

Created by Omar Farahat
Monday, 11/24/14 2:30pm

SUMMARY:

Following the theories of influential legal theorists such as Henry Maine and John Austin, early western scholars of Islamic law wrote under the assumption that the separation of law from all other sources of norms, such as theistic and positive ideas of morality, was a phenomenon that distinguished modern from primitive systems of law. This assumption came under significant scrutiny in recent years with the appearance of works that closely investigated the dynamics of legal and moral elements in pre-modern Islamic legal theory and practice, including the works of Baber Johansen, Kevin Reinhart and Wael Hallaq. Some of those works went as far as arguing that the discipline Islamic jurisprudence (uṣūl al-fiqh) should be viewed as an Islamic moral philosophy (Reinhart, Before Revelation), and that the inseparability of moral and legal ideas in pre-modern Islamic thought allowed Islamic law to operate as a system of social self-regulation (Hallaq, Sharīʿa).

Building on those important developments, this panel will attempt to explore the manners in which notions of moral goodness and piety have been understood and incorporated into systems of knowledge of the law (fiqh) and legal theory (uṣūl al-fiqh). The first paper will attempt to problematize the view that uṣūl al-fiqh was designed as a formal set of rules that did not take human subjectivity into consideration by arguing that early uṣūl works established inner consciousness of moral aims of actions as a necessary condition of legal capacity (taklīf). The second paper examines the Aristotelian commitments to conscientious moral habituation as found in works of fiqh in order to build upon recent work seeking to locate a role for ethics within the law, while avoiding some of the pitfalls of this emergent scholarship. The third paper will study the effect of rationally-derived morality on source criticism in Islamic legal theory. This paper analyzes the work of Ḥanafī Transoxanian scholars who viewed reliance on akhbār al-āḥād as a moral obligation. The final paper ventures into the contemporary era by looking at the moral underpinnings of Ḥanafī legal formalism in practices of Islamic banking and finance. This paper traces the formation of a deontic moral subjectivity enabled by a decoupling of the ʽilla (effective legal cause) of Islamic legal commandments from their maṣlaḥa (social interest). Together, the papers of this panel will elucidate the idea of the moral and the role it played in various fields of Islamic law and legal theory.

DISCIPLINES:

Law