Theology and Legal Theory in the Fifth/Eleventh Century A Case Study from the Shāfiʿī School of Law
The aim of this research is to evaluate the impact of ʿilm al-kalām (theology) on the formation of uṣūl al-fiqh (legal theory ) in pre-modern Muslim law. To analyse the relation between both disciplines, the study will primarily be in uṣūl al-fiqh al-muqāran (comparative uṣūl alfiqh). As a case study, the research plans to compare the uṣūl al-fiqh of four Shāfiʿī scholars who lived in the fifth/eleventh century and followed three different theological traditions, namely the Muʿtazilī, ʿAbd al-Jabbār b. Aḥmad al-Hamadhānī (d. 415/1024); the Ashāʿira, Abū Isḥāq al- Shīrāzī (d. 476/1083) and Abū al-Maʿālī al-Juwaynī (d. 478/1083); and the traditionalist, Abū al- Muẓaffar al-Samʿānī (d 489/1096). The aim of this comparison is to investigate the degree to which their theological differences lead to disagreements in their Shāfiʿī uṣūl al-fiqh. The research plans to identify the areas in their uṣūl al-fiqh that are more influenced by their differences in ʿilm alkalām and to identify those aspects of ʿilm al-kalām, if any,that had the greatest impact on their uṣūl al-fiqh. Putting the legal theory of four Shāfiʿī scholars who followed different theological traditions in juxtaposition provides a good opportunity to analyse the function of theology in the pre-modern Muslim legal system.
Why Ask This Question
The majority of modern scholars of Islamic law and theology assume that ʿilm al-kalām played a significant role in shaping legal theory. This is also the perception common among pre-modern scholars, especially that pre-modern uṣūl al-fiqh literature includes numerous theological references.
However, there are other historical facts that challenge this perception. There are four major Sunnī schools of law, namely the Ḥanafī, the Mālikī, the Shāfiʿī and the Ḥanbalī. In addition to these legal schools, there were several theological schools that were subsumed under Sunnī Islam, namely the traditionalist (ahl al-ḥadīth), the Ashʿarī and the Māturīdī, in addition to the Muʿtazilī theological school, which was not considered Sunnī. Excluding the Ḥanbalī, all other three legal schools included jurists from various theological backgrounds. The Shāfiʿī school of law attracted Ashʿarī, Muʿtazilī and traditionalist jurists. The Ḥanafī School usually attracts Muʿtazilī and Māturīdī jurists, the Mālikī attracts traditionalist and Ashʿarī and the Ḥanbalī usually attracts only traditionalist jurists. If theology played a significant role in shaping legal methodology, as many modern historians assume, why did not we see legal schools divided along theological lines? Why do we see, within the same school of law, jurists from various theological backgrounds? If theology had a crucial impact in forming legal theory , why did not each theological school form its own adjacent legal school that was in harmony with its theological teachings? These are some of the additional questions that will help analyse the role ʿilm al-kalām played in the formation of pre-modern Muslim legal methodology, if it had any.