Rigidity Versus Openness in Late Classical Islamic Law: The Case of the Seventeenth-Century Palestinian Muftī Khayr al-Dīn al-Ramlī

in Islamic Law and Society
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Abstract

In this study I reexamine some well-known generalizations about Islamic law prior to the impact of the West, e.g., the contention that Islamic law became increasingly closed, based more and more on blind imitation. My examination of the fatwā collection of the seventeenth-century Palestinian Muftī Khayr al-Dīn al-Ramlī suggests that increasing closure never took place. On the one hand al-Ramlī faithfully continues the tradition of his classical predecessors, or, in other words, he practices taqlīd by obligating himself to earlier authorities. On the other hand, his fatwās convey a sense of openness, flexibility, and liveliness. These characteristics are concretized in some of the major terms that he uses: ijtihād, or free discretion of the jurist in areas of the law that remained open; iṣtiḥsān, or relaxation of formal rules; and ʿurf, or local customary law, which, by definition, is changeable over time. In my view, the flexibility of Islamic law has been underemphasized in the scholarly literature, and hence it is on this factor in particular that I have chosen to concentrate.

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