This book is the first volume of a new series on Islamic law and theology that will publish original studies that clearly raise the bar for rigorous scholarship in the field of Islamic Studies. The volumes of this series are chosen not only for their disciplined methodology, exhaustive research, or academic authoritativeness. As importantly, these volumes make critical interventions in the process of understanding the world of Islam as it was, is, and is likely to become. In other words, the volumes of this series make central and even pivotal contributions to understanding the experience of the lived and living Islam, and the ways that this rich and creative Islamic tradition has been created and uncreated, or constructed, deconstructed, and reconstructed. In short, the volumes of this series are chosen also for their great relevance to the many realities that shaped or were intended to shape the ways that Muslims understand, represent, and practice their religion. Equally important is the fact that these volumes make significant contributions to understanding the worlds that Muslims helped to shape and in turn, the worlds that helped shape Muslims.
Initiating this series is Ayman Shabana’s essential and eye-opening study on the role of practice and custom in the development and theory of Islamic law. This is the first systematic study to investigate the extent to which Muslim jurists integrated, rationalized, and normatively legitimated the reliance on both what was thought to be universal or local social norms and practices in the context of a legal system guided by Divine text and will. To date, contemporary scholars, Western or non-Western and Muslim or non-Muslim, have assumed that social practice and custom has a very limited role in the normative constructions and theories of Islamic jurisprudence. Shabana’s original and ground-breaking scholarship mandates not only the re-examination of these inherited positions, but even more, it invites researchers to re-interrogate long held assumptions about the nature and function of so-called religious legal systems, especially in contrast to the broad and very often ambiguous category of secular legal systems. Furthermore, among the profoundly salient issues raised by Shabana’s study is the dynamic and complex balance between determinism, contingency, and functionalism in a legal system founded on the assumption of a supreme and eternal legislator, and also on the assumption of foundational or fundamental laws that are transcendent and universal, and that are perpetually valid, unwaveringly necessary, and always good. These dogmatic assumptions, however, are dynamically and creatively negotiated within the context of other compelling and at times competing assumptions, such as that the laws of God are not just found in texts but also in the nature of creation, the laws of human autonomy, agency and inheritance of the earth, or the imperative of ending human suffering, or the avoidance of hardship.
In dealing with these and other critical issues, like all solid scholarship, Shabana’s work raises as many questions as it answers. But this book will become an indispensable starting point for any person who hopes to understand the nature of Islamic law, and it is bound to become the necessary foundation for any future work on the place of custom in Islamic jurisprudence and indeed on the role of revelation and determinism in Islamic law. The least that can be said is that no serious student of Islamic law or theology can afford not to read this original and timely book. In addition to making a major contribution to our understanding of the Islamic legal system, this work significantly raises the standards of scholarship that must be met by any researcher in this field.
Khaled Abou El Fadl