Islamic Law and the State: The Constitutional Jurisprudence of Shihāb Al-Dīn Al-Qarāfī

by Sherman A. Jackson

This book deals with an Ayyūbid-Mamlūk Egyptian jurist's attempt to come to terms with the potential conflict between power, represented in the state, and authority, represented in the schools of law, particularly where one school enjoys a privileged status with the state. It deals with the history of the relationship between the schools of law, particularly in Maml?k Egypt, in the context of the running history of Islamic law from the formative period during which "ijtih?d" was the dominant hegemony, into the post-formative period during which "taql?d" came to dominate. It also deals with the internal structure and operation of the "madhhab," as the sole repository of legal authority. Finally, the book includes a discussion of the limits of law and the legal process, the former imposing limits on the legal jurisdiction of the jurists and the schools, the latter imposing limits on the executive authority of the state.

Genres: Islam

296 pages, Hardcover

First published January 1, 1996

About the author

Sherman A. Jackson (also known as Abdul Hakim Jackson) is an American scholar. He is the King Faisal Chair of Islamic Thought and Culture and Professor of Religion and American Studies and Ethnicity at the University of Southern California. He was formerly the Arthur F. Thurnau Professor of Near Eastern Studies, Visiting Professor of Law and Professor of Afro-American Studies at the University of Michigan.

He received his Ph.D. from the University of Pennsylvania and has taught at the University of Texas at Austin, Indiana University, Wayne State University and the University of Michigan. From 1987 to 1989, he served as Executive Director of the Center of Arabic Study Abroad in Cairo, Egypt. He is author of several books, including Islamic Law and the State: The Constitutional Jurisprudence of Shihâb al-Dîn al-Qarâfî (E.J. Brill, 1996), On the Boundaries of Theological Tolerance in Islam: Abû Hâmid al-Ghazâlî's Faysal al-Tafriqa (Oxford, 2002), Islam and the Blackamerican: Looking Towards the Third Resurrection (Oxford, 2005) and Islam and the Problem of Black Suffering (Oxford, 2009).

He has been featured on the Washington Post-Newsweek blog, "On Faith," as well as the Huffington Post. In 2009 he was named among the 500 most influential Muslims in the world by the Royal Islamic Strategic Studies Center in Amman, Jordan, and the Prince Alwaleed Bin Talal Center for Muslim-Christian Understanding. He has also been recognized by Religion Newswriters Association ReligionLink as among the top ten experts on Islam in America.

Reviews

[Nooreaga · Rating 5 out of 5]

An excellent work on the brilliant Shihab Aldin AlQarafi. It is a shame that this Imam is not known by the muslim masses outside of Maliki circles. His contributions to the Islamic legal tradition are exemplary.

[N · Rating 2 out of 5]

غريب طرح جاكسون
مو شاطح
لكن غريب
ساعيد القراءة

[Hadia · Rating 5 out of 5]

Reviewed Work: Jackson, Sherman. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī. Leiden: E. J. Brill, 1996.
(this is just two paragraphs of my 10-pg review)
By Hadia Mubarak

Sherman Jackson’s work on the constitutional jurisprudence of Shihāb al-Dīn al-Qarāfī (d. 684/1285) – a Mālikī jurist protesting the exclusivist policies of the lone Shafi‘ī chief justice of Cairo, Egypt – provides great insight into the historical, political, and intellectual developments of Islamic law in 7th/13th century Egypt. Although this work seems to have a narrow focus by specifically examining the constitutional thought of a 13th century Mālikī jurist in Egypt, Jackson succeeds in drawing broad conclusions that inform our understanding of the development of medieval legal thought, the relationship between the state and judiciary, and the tensions that existed between the madhāhib, especially as some came to hold a higher position of power within the state. The work is based primarily on Qarāfī’s monograph, Kitāb al-ih}kām fi tamyīz al-fatāwa ‘an al-ah}kām wa tas}arrufāt al-qādi wa al-imām (The Book of Perfecting the Distinction between Legal Responsa, Judicial Decisions and the Discretionary Actions of Judges and Caliphs). Jackson’s two other primary sources, both of which are listed in Carl Brockelmann and ‘Abd al-Fattah Abu-Ghuddah’s citations , are Al-Furuq and Sharh} tanqih} al-Fus}ul. Jackson’s work skillfully situates the greater implications of Qarāfī’s arguments within the broader historical and political context of the Ayyubid-Mamluk era.

In his monograph, Qarāfī is reacting to the policies of the lone Shafi‘ī chief justice in Cairo, Tāj al-Dīn ibn bint al-A‘azz (d. 665/1267), who refused to implement rulings handed down by judges from other schools. The main issue for Qarāfī is how to protect the legal authority of the madhāhib to pass on their own rulings against the power differential that exists among the schools. For example, would a H{anafī living under a Shafi‘ī-dominated government have the right to consume nabīdh wine in public? By analyzing Qarāfī’s legal argumentation against the judicial monopoly of a single madhhab, Jackson deduces important trends in the development of Islamic law during this period, which is the most important contribution of this work. Namely, Jackson demonstrates 1) the development of the madhhab as the main constitutional corporate unit that mediated the relationship between the government and society at large; 2) the decline of ijtihād and subsequent emergence of “a regime of taqlīd;” 3) the “legal scaffolding” in which jurists had to engage in order to ground their rulings within a madhhab and confer a level of authority upon their rulings; and 4) lastly, the limitations imposed on the state by way of restricting the legal process itself.

In summary, Jackson demonstrates his erudite knowledge of broad facets of Islamic legal history, including legal theory, positive law, the development of legal schools, the judiciary and its relationship with the state, and the historical context of legal development. One of the most useful aspects of Jackson’s work is his application of methods utilized by legal historians such as Alan Watson to the study of Islamic law. Rather than treat ‘Islamic law’ as an exceptional entity of law, Jackson draws upon existing methodologies used in the study of other legal systems and applies them to Islamic law. This allows him to arrive at important conclusions regarding the importance of taqlīd for legal stability and the distinction between law and legal process in defining the role of government as legal executor. An important contribution of Jackson’s work is his overview of the debate in Western academia on a number of critical issues in Islamic legal development, such as the regime of ijtihād versus the regime of taqlīd; the function of the madhhab as a guild or a corporation; and the judiciary’s relationship with the state, among many other issues. Before staking his own position on such issues, Jackson provides a synopsis of the debate, which helps both specialists and non-specialists alike situate Jackson’s work within the broader scholarship of Islamic studies.

[Habeeb Akande · Rating 4 out of 5]

A very good read about the principles of Islamic jurisprudence