Joseph Schacht (d. 1969), a German Professor of Arabic and Islam, who was the leading Western scholar on Islamic law, maintain the view that Islamic legal theory (usul al-fiqh) did not exist before al-Shafii, and the law before him was based on personal opinion (ray) and Umayyad practice. The theory presented by al-Shafii was accepted with some modifications by all the Sunni schools after him, however, this common legal theory has little relevance to the positive doctrine of each school because the essential features of the law as we know it were already visible by the year 132H, much before al-Shafiis time. The positive doctrine (fiqh) itself was a jurists law based on the analogical method and, therefore rigid. The result was that legal fictions or casuistry (hiyal) had to be resorted to for countering this rigidity and for bridging the widening gap between theory and practice... (In fact, Schacht adopted the idea that Islamic law was a jurists law, and the claim about use of the hiyal, respectively from Max Weber and Goldziher, the earlier prominent Orientalists)
Posted on: Fri, 12 Dec 2014 09:01:01 +0000
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