KRAMER VERSUS KRAMER IN A TENTH/SIXTEENTH CENTURY EGYPTIAN COURT: POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW

in Islamic Law and Society
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Abstract

The relationship between the individual jurist, the madhhab and scripture (Qur'ān and Sunnah) has long been a topic of debate among scholars of Islamic law. Based on a detailed fatwā on a controversial issue in tenth/sixteenth century Cairo, the present essay describes how, in the post-formative period, the madhhab mediated between the jurist and the sources. While clearly reflecting a commitment to taqlīd, this fatwā renders problematic the attribution of such adjectives as "conservative" or "servile" to that institution. At the same time, it clearly suggests that non-legal factors, such as the moral presuppositions and social outlook of the individual jurist, are operative in the processes of shaping school doctrine and crafting individual fatwās for 'difficult cases'.

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