Monthly Lectures on Islamic Legal Genres: “Genre as a Tool for Understanding Islamic Law” by Dr. Samy Ayoub

By Omar Khaled Abdel-Ghaffar

This is a summary of the lecture by Dr. Samy Ayoub entitled “Creativity in Continuity: al-rasā’il al-fiqhīyya as a Genre for Legal Change,” delivered on May 26, 2021 at 12 noon (EST), 6 pm (Münster) 7 pm (Istanbul) via Zoom.

Samy Ayoub’s lecture on May 26, 2021 on late Ḥanafī rasā’il (treatises) expanded an ongoing conversation in the Islamic Legal Genre (ILG) lecture series about the ways in which a legal mode shapes the type of information a jurist can relay in writing. Ayoub argued that rasā’il were a vehicle for jurists to create complex and multilayered change, and that this genre of legal writing was essential to enshrining new legal developments in the madhhab. As a vehicle for legal change, rasā’il were particularly important to nineteenth and twentieth century Ḥanafī law, at a time when jurists were interested in debating and reforming specific aspects of the law. Much like the other genres our lecture series have covered so far, the proliferation of a legal genre reveals the rise of a certain conception of legal authority; legal treatises gained ascendency among late Ḥanafī jurists because the treatises allowed for a concise engagement of a specific legal topic with the potential for policy reform.

According to Ayoub, rasā’il allowed jurists the opportunity to either restate or reform the standing positions of their school, and they were therefore important for policy purposes. Importantly, rasā’il were dialogical without being excessively discursive; jurists responded to each other’s opinions in rasā’il, but were not burdened by the forms and digressions of shurūḥ and ta’ālīq. To demonstrate this point, Ayoub takes up a close reading of Maḥmūd Effendī al-Ḥamzāwī’s (d. 1887) treatise on evidentiary and procedural requirements in Islamic courts. Al-Ḥamzāwī was a Damascene judge and muftī who was working at the height of the Ottoman reform movement. 

Ayoub demonstrates that although sixteenth to nineteenth century Ḥanafī jurists emphasized the importance of mutūn (legal manuals), legal treatises nonetheless were clearly essential to legal writing because nearly every known jurist from the period penned at least one. Ayoub suggests that the reason for this rise of the legal treatise has to do with how rasā’il allowed jurists to discuss ideas without being burdened by the legal weight and layers of authority that other writing modes forced on their authors. Jurists could respond to each other in separate treatises, as Ayoub gives with the example of istibdāl al-waqf. The debate surrounding exchanging pious foundations continued for centuries, and the legal treatise was the mode through which a jurist could articulate his position vis-a-vis other jurists without entering into a line-by-line refutation. Jurists, according to Ayoub, incorporated these treatises to their mutūn. As a result, if we are to understand the processes behind reforms to procedural law in the late Ottoman period, we must pay close attention to the exchanges taking place in legal treatises. The end result of these debates as presented in legal codes and the mecelle are not sufficient according to Ayoub; a researcher must explore the debates that produced these codes, and these are to be found in the many legal treatises of the period. 

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