Does Sharīʿa Need to Be Restored? The Legislative Predicament of the Sunnī Doctrinal Theories
In: Arab Law QuarterlySearch for other papers by Heba Sewilam in
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Abstract
The post-colonialist academic discourse blames colonialism for the marginalisation of Sharī‘a in the legal systems of Sunnī Muslim-majority countries. However, an analysis of some juristic debates around the Sunnī doctrinal theories of uṣūl al-fiqh and maqāṣid al-sharīʿa exposes few of the theories’ internal problems accounting for the marginalisation. In uṣūl al-fiqh, disputes regarding ijmāʿ and qiyās virtually bring their effectiveness as legal doctrines for positive law legislation to a halt. With regard to maqāṣid al-sharīʿa, an Ašʿarī adherence to a literal reading of the text reduces its potential to produce new Sharī‘a-compliant laws. Such problems render uṣūl al-fiqh and maqāṣid al-sharīʿa ineffective instruments for regulating accelerated legal changes demanded by fast-paced societal and scientific developments and deem the application of Sharīʿa in Sunnī Muslim-majority countries a task neither possible nor even recommended.
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| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 1912 | 163 | 11 |
| Full Text Views | 211 | 2 | 0 |
| PDF Views & Downloads | 134 | 1 | 0 |
Does Sharīʿa Need to Be Restored? The Legislative Predicament of the Sunnī Doctrinal Theories
In: Arab Law QuarterlySearch for other papers by Heba Sewilam in
Current site
Google Scholar
PubMed
Abstract
The post-colonialist academic discourse blames colonialism for the marginalisation of Sharī‘a in the legal systems of Sunnī Muslim-majority countries. However, an analysis of some juristic debates around the Sunnī doctrinal theories of uṣūl al-fiqh and maqāṣid al-sharīʿa exposes few of the theories’ internal problems accounting for the marginalisation. In uṣūl al-fiqh, disputes regarding ijmāʿ and qiyās virtually bring their effectiveness as legal doctrines for positive law legislation to a halt. With regard to maqāṣid al-sharīʿa, an Ašʿarī adherence to a literal reading of the text reduces its potential to produce new Sharī‘a-compliant laws. Such problems render uṣūl al-fiqh and maqāṣid al-sharīʿa ineffective instruments for regulating accelerated legal changes demanded by fast-paced societal and scientific developments and deem the application of Sharīʿa in Sunnī Muslim-majority countries a task neither possible nor even recommended.
| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 1912 | 163 | 11 |
| Full Text Views | 211 | 2 | 0 |
| PDF Views & Downloads | 134 | 1 | 0 |