Debating the Imperative Mood in Uṣūl al-Fiqh

Collective Deliberation and Legal Validity

In: Oriens
Omar Farahat McGill University Faculty of Law

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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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