An old draft translation of a classic handbook of Islamic legal theory, Imam al-Haramayn al-Juwayni’s Kitab al-waraqat fi usul al-fiqh, accompanied by a minimal commentary for teaching purposes. (Also available: Translation without commentary, Commentary only).
I am preparing for publication a critical Arabic edition, a revised translation, and a full-length commentary that will serve as a “critical introduction to Islamic legal theory.”
In the wonderfully engaged and supportive environment of the 2008 American Oriental Society meeting in Chicago, I presented the progress I had been making toward Chapter 3 of The Formation of Islamic Hermeneutics:
“The Muʿtazila of Baghdād and the Eastern Ẓāhiriyya: A Scripturalist Alternative to al‑Shāfiʿī’s Vision of Islamic Law.” American Oriental Society, Chicago, March 16, 2008.
Here is a pdf of the paper.
Here is the abstract:
Most Sunnī legal theory pursues al‑Shāfiʿī’s project of establishing a correlation between law and revelation. This paper reconstructs the history of an alternative program usually identified with the Ẓāhiriyya: law should be grounded in revelation, but it should be reinvented from scratch by applying revelation directly to each new legal problem, without extending revelation’s reach through analogical reasoning, and without exploiting its ambiguity to justify existing laws. This alternative was formulated in Baghdād by a network of literalist, scripturalist, rationalist Muʿtazila. al‑Naẓẓām (d. 221/836), for example, finding no consistent moral logic behind God’s commands, argued that if law was to be considered revealed at all, one would have to be content with following the Qurʾān to the letter, without any attempt to reinterpret it or apply it to problems it did not explicitly address. Others developed this idea into a constructive legal project, arguing that any rational being can apply scripture directly and without uncertainty to particular legal cases. Jaʿfar ibn Mubashshir (d. 234/848) took the important step of broadening his scripturalism to include some Prophetic traditions. The main tenets of his legal theory were then replicated, without their rationalist underpinnings, by Dāʾūd al‑Ẓāhirī (d. 270/884), and later elaborated into a philosophically sophisticated hermeneutic by Dāʾūd’s followers Nifṭawayh (d. 323/935) and Ibn Dāʾūd (d. 297/910). This scripturalist challenge to existing legal systems proved unsustainable, however, and subsequent generations of Ẓāhiriyya, finding themselves increasingly marginalized, unsuccessfully sought to mitigate their unorthodoxy by letting analogical reasoning in through the back door. When Ibn Ḥazm (d. 456/1064) attempted a Ẓāhirī revival in Andalusia, he adopted many aspects of mainstream interpretive theory, and placed a new emphasis on traditions. This is why the Ẓāhiriyya have sometimes been associated with traditionists, rather than with their fellow scripturalists among the Muʿtazila of Baghdād.