Principles of Islamic Jurisprudence by MH kamali

and tend to treat ideas on merit rather than their

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Unformatted text preview: merit rather than their formal acceptance and recognition by the established madhahib. In addition to the textbook materials on usul Principles of Islamic Jurisprudence ~ Kamali 5 al-fiqh, a number of legal encyclopedias have emerged in recent decades in Egypt and elsewhere, usually bearing the title al-Mawsu'ah al-Fiqhiyyah' with the express purpose of offering a balanced treatment of the views and contributions of all the prominent schools of law. As a result, the relatively stronger orientation toward particular schools that is noticeable in the earlier works on usul al-fiqh, especially those that were authored after the crystallisation of the madhahib, is not a prominent feature of the modern works. A more open attitude has in fact emerged which seeks to move away from the sectarian bias that can be found in some earlier works, and it is no longer unusual for a Sunni scholar to write on Shii thought, scholars and institutions, with a view to highlighting their contributions to Islamic law and jurisprudence. The present writer welcomes this development, but if his own work fails to offer adequate coverage of the doctrines of the various schools, it is due solely to considerations of brevity and space which may be expected of a handbook of this size. III. It is perhaps true to say that Islamic jurisprudence exhibits greater stability and continuity of values, thought and institutions when compared to Western jurisprudence. This could perhaps be partially explained by reference to the respective sources of law in the two legal systems. Whereas rationality, custom, judicial precedent, morality and religion constitute the basic sources of Western law, the last two acquire greater prominence in Islamic Law. The values that must be upheld and defended by law and society in Islam are not always validated on rationalist grounds alone. Notwithstanding the fact that human reason always played an important role in the development of Shari'ah through the medium of ijtihad, the Shariah itself is primarily founded in divine revelation. A certain measure of fluidity and overlap with other disciplines such as philosophy and sociology is perhaps true of both Islamic and Western jurisprudence. But it is the latter which exhibits the greater measure of uncertainty over its scope and content. Thus according to one observer, books that bear the title 'jurisprudence' vary widely in subject matter and treatment, because the nature of the subject is such that no distinction of its scope and content can be clearly determined, [Dias, Jurisprudence, p. I.] and in Julius Stone's somewhat dramatic phrase, jurisprudence is described as 'a chaos of approaches to a chaos of topics, chaotically delimited'. [See this and other statements by Bentham, Dicey and Arnold in Curzon, Jurisprudence, p. 13.] Usul al-fiqh, on the other hand, has a fairly well defined structure, and the ulema had little difficulty in treating it as a separate discipline of Islamic learning. Textbooks on usul al-fiqh almos...
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