Monthly Lectures on Islamic Legal Genres: “Genre as a Tool for Understanding Islamic Law” by Prof. Mohammad Fadel

By Omar Khaled Abdel-Ghaffar

This is a summary of the lecture by Prof. Mohammad Fadel entitled “Form, Function and Historical Development of Mukthasars in Post-Mamluk Islamic Law,” delivered on February 24, 2021 at 11am (EST), 5pm (Münster) 7pm (Istanbul) via Zoom.

Professor Fadel’s lecture described the history, purpose, and nature of late medieval Mālikī mukhtaṣars. The mukhtaṣar as a genre allows jurists to tersely summarize their school’s positions, offering the Sunnī madhhab system a sense of cohesion and predictability. Touching on his groundbreaking 1996 article, “The Social Logic of Taqlīd and the Rise of the Mukhtaṣar,” Fadel indicated the importance of the mukhtaṣar’s formulaic concepts for the rule of law in a society ruled by sharīʿa. Because ijtihād is a solitary practice based on the exertion of individual mental effort, the legal opinion reached by ijtihād cannot be evaluated. In short, a society whose legal class is composed exclusively of mujtahids would not have positive law. Taqlīd therefore becomes key for legal actors to expect legal consequences, stipulations, and claims, enhancing legal certainty.

The first Mukhtaṣars arose prior to the Mamlūk period and were not exclusive to the Mālikī school. We find for example in the Shāfiʿī school the well-known Mukhtaṣar by al-Muzanī (d. 264 AH / 878 CE) and among the Ḥanafīs Abū Ḥafṣ al-Nasafī (d. 536 AH / 1142 CE), who wrote the Kanz al-daqāʾiq. These epitomes all shared the purpose of addressing the need to summarize existing legal texts in the madhhab, in the hope of presenting scholars with an abridged version of the canonical text on legal theory. Despite the importance of these texts, they did not reach the prominence within their respective schools of law that the later Mālikī epitomes would.

The golden age of Mālikī mukhtaṣars was in the Mamlūk realms, presumably to meet the requirements of an equivocal legal system. The first of these canonical Mālikī Mukhtaṣars was Ibn Shās’s (d. 612 AH/1215 CE) ʿIqd al-jawāhir al-thamīna, followed by ibn al-Ḥājib’s (d. 646 AH/1248 CE)  Jāmiʿal-ummahāt, and finally and most famously, Khalīl ibn Isḥāq al-Jundī’s (d. 767/1366 AH) Mukhtaṣar Khalīl. These texts were extremely terse summaries of the entire breadth of a school’s legal opinion. They encompassed the key opinions, creating a status-quo for the school. However, the concise style and the objective of summarizing a vast legal corpus makes these epitomes at times incomprehensible. The mukhtaṣar requires an explanation, cultivating a dialogue between student and teacher. Indeed, Fadel argues that these epitomes may have been composed not just for argumentative and judicial purposes, but also for pedagogical reasons. Be that as it may, the Mamlūk-era mukhtaṣar served an important administrative and judicial purpose: an administrator, judge, or private person alike could identify the expected opinion of the school through these epitomes.

A rich discussion followed the lecture. Fadel pointed out how the formulation and explanation of mukhtaṣars was an important platform for discussion between jurists, and thereby the solidification of madhhab identity. The mukhtaṣar therefore was a means of structuring knowledge and enhancing the madhhab’s pedagogical system. One important question that arose was the one of the relationship between the drafting of mukhtaṣars and the codification of modern legal codes. Fadel argued that the difference between the two lies in legislative agency; codification was produced by officials and thereafter immutable whereas the mukhtaṣar allowed for a constant dialectical process.

 

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