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Abstract
This article offers an analysis of the way a number of classical Muslim scholars treated the question of the normative impact of statements in the imperative mood. This question, which was standard in classical works of legal theory, is noteworthy for its direct implication in establishing links between linguistic forms and normative positions. It reveals to us with some clarity the logic of norm-formation in part of the tradition. It will be argued that the debates surrounding the normative impact of the imperative mood reflect a logic of collective deliberation that highlights a reliance on the authority of the community of jurists as a foundation of validity for jurisprudential principles. Establishing the validity of legal norms and processes that lead to their formulation is a common concern among legal systems. In the study of classical Islamic law, it is commonly assumed that the jurists derived substantive norms from revealed sources using the tools and methods of Islamic legal theory. This assumption locates the validity of legal norms and their formulation exclusively in divine will as expressed in revelation. This study suggests that we can view debates in legal theory as efforts in grounding legal validity in various sources of authority, including revealed language and the collective authority of the scholars. This corresponds to what has been described in analytic jurisprudence as a secondary rule of recognition.
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ʿAbd al-Jabbār al-Asadābādī, Abī al-Ḥasan. Al-Mughnī Fī Abwāb al-Tawḥīd wal-ʿadl. Vol. 17. 20 vols. Cairo: Wizārat al-Thaqāfah wa-al-Irshād al-Qawmī. n.d.
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Abū al-Baqāʾ, Ayyūb b. Musā. al-Kulliyyāt: muʿjam fil-muṣṭalaḥạ̄t wa-l-furūq al-lughawīyya. Adnan Darwish and Muhammad Al-Masri, eds. Beirut: Muʾassasat al-Risāla, 1992.
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Ali, Zain. “Concepts of God in Islam.” PHC3 Philosophy Compass 11, no. 12 (2016): 892–904.
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Farahat, Omar. “Commands as Divine Attributes: Islamic Jurisprudence and the Euthyphro Question.” Journal of Religious Ethics 44, no. 4 (2016): 581–605.
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Gleave, Robert, “Deriving Rules of Law.” In Peters, Rudolph, and P.J. Bearman. The Ashgate Research Companion to Islamic Law. London; New York: Routledge, 2016.
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Kramer, Matthew. “Of Final Things: Morality as One of the Ultimate Determinants of Legal Validity.” Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy 24, no. 1 (2005): 47–97.
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Lamond, Grant. “Legal Systems and the Rule of Recognition: Discussion of Marmor’s Philosophy of Law Book Symposium on Andrei Marmor’s Philosophy of Law.” Jerusalem Review of Legal Studies 10 (2014): 68–80.
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Schauer, Frederick F. The Force of Law. Cambridge, Massachusetts: Harvard University Press, 2015.
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Search for other papers by Omar Farahat in
Current site
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Abstract
This article offers an analysis of the way a number of classical Muslim scholars treated the question of the normative impact of statements in the imperative mood. This question, which was standard in classical works of legal theory, is noteworthy for its direct implication in establishing links between linguistic forms and normative positions. It reveals to us with some clarity the logic of norm-formation in part of the tradition. It will be argued that the debates surrounding the normative impact of the imperative mood reflect a logic of collective deliberation that highlights a reliance on the authority of the community of jurists as a foundation of validity for jurisprudential principles. Establishing the validity of legal norms and processes that lead to their formulation is a common concern among legal systems. In the study of classical Islamic law, it is commonly assumed that the jurists derived substantive norms from revealed sources using the tools and methods of Islamic legal theory. This assumption locates the validity of legal norms and their formulation exclusively in divine will as expressed in revelation. This study suggests that we can view debates in legal theory as efforts in grounding legal validity in various sources of authority, including revealed language and the collective authority of the scholars. This corresponds to what has been described in analytic jurisprudence as a secondary rule of recognition.
| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 597 | 86 | 0 |
| Full Text Views | 323 | 6 | 0 |
| PDF Views & Downloads | 171 | 16 | 0 |