Monthly Lectures on Islamic Legal Genres: “Form, Function, and Historical Development of Uṣūl al-Fiqh as a Genre” by Prof. Murteza Bedir

By Omar Khaled Abdel-Ghaffar

This is a summary of the lecture by Prof. Murteza Bedir entitled “Form, Function, and Historical Development of Uṣūl al-Fiqh as a Genre” delivered on January 27, 2021 at 12 noon (EST), 6 pm (Münster) 7 pm (Istanbul) via Zoom.

Professor Murteza Bedir inaugurated the monthly lectures on Islamic legal genres with a discussion of the historical development of uṣūl al-fiqh in light of various developments in Islamic intellectual history. Bedir emphasized that uṣūl al-fiqh is a genre that is closely related to the study of kalām (theology). Therefore, the development of uṣūl was often closely associated with the development and change in theological positions. 

Muʿtazilī uṣūl was the first system to develop. According to Bedir, it evolved around the circles of two tenth century Baghdādī scholars: Karkhī and Abū ʿAbdullāh al-Baṣrī. Karkhī’s main contribution to the genre was the carrying over of legal principles into uṣūl al-fiqh. Famous scholars of uṣūl like Jassās, Qāḍai ʿAbd al-Jabbār, and al-Nāṭiq bil-Ḥaqq all learned and evolved from the circles of these scholars. Ḥanafī uṣūl developed on the foundations set down by these early scholars. Twelver Imāmī uṣūl emerged from the work of al-Sharīf al-Murtaḍā and al-Ṭūṣī, who were also associated with the Muʿtazilī uṣūl circles. Ashʿarī uṣūl on the other hand emerged from the work of the eleventh century scholar al-Bāqillānī and deviated from its Muʿtazilī counterparts, attracting Shāfiʿī scholars. Many Ḥanbalīs and Mālikīs followed suit, whereas a significant number of Ḥanbalīs deviated even from the Ashʿarī model, building on the work of Abū Yaʿlā and Ibn ʿAqīl. These Ḥanbalī uṣūl scholars were unique in that they were uninterested in theological debates. 

Bedir describes these differences between scholars not as evidence of distinct questions differentiating the various movements of uṣūl. Rather, these movements according to Bedir represent different “styles of writing” uṣūl texts. These styles differed geographically and temporally. For example, Transoxanian Ḥanafīs were deeply influenced by their Baghdādī counterparts and were therefore distinct from other Central Asian schools. Led by Dabūsī, these Transoxanian scholars developed what Ibn Khaldūn would later call “the style of the jurists,” a form of compilation that distinguished uṣūl from kalām. According to Bedir, Jassās and earlier scholars wrote more as theologians than as jurists proper. This style of the jurists came to be more closely associated with Ḥanafī uṣūl whereas the style of the theologians was more closely associated with the predominantly Shāfiʿī Ashʿarīs. In this way, as a result of coincidence rather than by legal differences, each style of writing came to be associated with a specific school of law. 

Bedir strongly disagrees with modern scholars who try to prove a methodological difference between the style of the jurists and that of the theologians. According to Bedir, these scholars attempt to position Shāfiʿī as the first author of the theological style of writing uṣūl, as a system whose primary innovation was the placing of proofs before rulings. Bedir traces this ordering of proofs and rulings back to the Muʿtazila and so argues that the claim is historically inaccurate.  Instead, he argues that we should see the two styles as emanating from two geographic locales; the theological style as being Iraqi, and the juristic style Transoxanian. 

After the rise of Ashʿarism as the dominant Sunnī theological school, the theological style of writing uṣūl became more popular. However according to Bedir, in the post-classical period, jurists began introducing maṣlaḥa as a source of law and therefore the genre witnessed a rise once again of the juristic style of writing. The period also witnessed the expansion of chapters on qiyās and the increase of the number of valid sources for the law. This increase culminated in Qarāfī’s enumeration of nineteen sources, a dramatic increase from the traditional four. According to Bedir scholars incorporated more maṣlaḥa discourse and deductive reasoning into uṣūl literature, the line separating the primary purpose of the law began to blur: is the law an articulation of the will of God, or an articulation of the people’s best interests? For this reason, according to Bedir, Islamic law in the later period, even before the onset of modernity, was fixated on questions of custom and rationality.

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