Islamic Legal Teory

Islamic Legal Theory Curriculum: Are the Classics Taught Today?
Author(s): Monique C. Cardinal

Source: Islamic Law and Society, Vol. 12, No. 2 (2005), pp. 224-272
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ISLAMIC LEGAL THEORY CURRICULUM:
ARE THE CLASSICS TAUGHT TODAY?*
MONIQUE
C. CARDINAL
Abstract
During
the
past century, legal
education has been redefined in the Arab-
Muslim world as a result of the
adoption
of
European codes, procedures
and courts.
Although
Islamic law has been
largely
excluded from the
curriculum of modern law
schools,
Islamic
legal theory (usul al-fiqh)
has
been
retained,
albeit on a
highly
reduced
scale,
and
taught through
modern
textbooks
designed by professors
of the new law faculties. This article
traces the
genealogy
of the modern usul textbook in an
attempt
to
explain
how the
Sharl'a
faculties of
contemporary
Arab universities have come to
privilege
the modern textbook over the classical treatise to teach Islamic
legal theory.
I
compare
the curriculum and course material of the Shari'a
faculties of five universities:
al-Zaytuna, al-Qarawiyyin, al-Azhar,
Damascus
University
and
Jordan University.
In
all,
this
study
examines
forty-two
modern textbooks of Islamic
legal theory.
A
survey
of the contexts in
which the first modern textbooks were
taught reveals,
in
part,
how the
modern textbook of Islamic
legal theory
differs from its classical
counterpart.
W HAT PURPOSE CAN THE CLASSICAL WORKS OF ISLAMIC LAW and
legal theory
serve in
contemporary
Arab
legal systems, which,
for
the most
part,
have
adopted European codes, procedures
and courts?
The manual of Islamic
legal theory,
which
provides
the
jurist
with
the hermeneutic tools to formulate the
law,
has lost its usefulness
now that
legislation
has become the
prerogative
of the modern
nation-state. In
fact,
the
legal
tradition has not been abandoned so
Correspondence: Monique
C.
Cardinal,
Universite
Laval,
Faculte de
Theologie
et de sciences
religieuses,
Pavillon
Felix-Antoine-Savard, Quebec (Que)
GIK
7P4,
Canada. E-mail:
cardinalmc@postmaster.co.uk
*
Funds for this research were
generously provided by
the SSHRC and
FQRSC postdoctoral fellowships
of the Canadian and
Quebec governments.
I thank
my supervisor,
Professor Wael B.
Hallaq,
for his
input,
Salwa
Ferahian,
who
helped
me to
acquire
documents
through
the
Interlibrary
loans services
of McGill
University,
and Steve
Millier,
for his editorial skills.
Finally,
I am
extremely grateful
to David S. Powers for his
editing
of the final draft.
(C
Koninklijke
Brill
NV, Leiden,
2005
Also available online
-
www.brill.nl
Islamic Law and
Society 12,
2
ISLAMIC LEGAL THEORY CURRICULUM
easily,
and Islamic law and
legal theory
continue to be
taught
at
modern universities in both faculties of law
(kullyat
al-huquq)
and of
the Sharf'a
(kullayat al-Shar'a).
The mandate of
Shari'a
faculties is to train
experts
in Islamic
law,
and Islamic law and
legal theory normally
constitute the core
curriculum. In
addition, however, Western-imported
law
(al-qdnun)
is also
taught
in
many
Shari'a faculties in order to train
graduates
to work in the new
legal systems
of the Arab world. It is
surprising,
however,
that Islamic law and
legal theory
form
part
of the curriculum
in the law
faculties-despite
the fact that
judges,
court officials and
lawyers
are no
longer required
to know the substantive law of the
Islamic
legal tradition,
since
they apply foreign-inspired
modern
law. Whereas Islamic substantive law is
taught only indirectly
at
the law faculties
(through
what has remained of it in civil
codes),
Islamic
legal theory
remains a
subject
of
interest,
albeit on a
highly
reduced
scale,
more often than not in the form of a one-semester
course
taught
in a
four-year programme.
To
comply
with the
constraints of time and
curriculum,
Islamic law
professors
in faculties
of law have shifted the focus from classical manuals of Islamic
legal
theory by simplifying
them and
reformulating
them in modern
prose.
One Western scholar has
suggested
that the new manuals of
Islamic
legal theory
written in the 20th
century
are better than
works
dating
from the 19th
century
and earlier on because the
authors, although
trained in the Azhari
tradition,
had the
advantage
of
being
in
professional
contact with their
colleagues
in the law
faculties
(designed
on the French
model).'
The issue at hand is not
whether or not modern manuals are better than their classical
counterparts,
even if the claim itself is
questionable.
What is
important
is to understand how and
why
the modern
manuals, designed
for
a new
purpose
in a new
context,
have come to differ from the
classics.
Do
professors,
law students and
legal professionals really
need
the
methodological
tools
provided by
Islamic
legal theory
in order
1
Bernard
Botiveau,
Loi
islamique
et droit dans les societes arabes
(Paris,
Aix-en-
Provence:
Karthala, IREMAM, 1993),
39-40. Botiveau mentions some authors
of these modern manuals: Mustafa
ShalabI,
'Abd al-Wahhab
Khallaf,
Muham-
mad Abu Zahra, Muhammad Sallam
Madkur,
all of whom
taught
Islamic
legal
theory
at the
Faculty
of Law of Cairo
University;
and Ma'ruf
al-Dawalibi,
Fathi
al-Durayni
and Wahba
al-Zuhayli
at Damascus
University.
225
MONIQUE
C. CARDINAL
to
interpret
modern codes? The authors of the new manuals believe
this to be the
case,
as evidenced
by
the fact that the manuals
contain
excerpts
from codified
law, freely interpreted alongside
sacred
texts, using
the rules of textual
analysis proper
to Islamic
legal
theory. Thus,
Islamic
legal theory
serves the
purpose
of
making
lawyers
and
judges
better
interpreters
of texts.2 In these
manuals,
parallels
between rules of Islamic
jurisprudence
and Western law
are drawn with the aim of
appealing
to their
readership-the
students
of the law faculties. In
addition,
authors borrow modern Western
terms familiar to their readers to define or refer to
aspects
of Islamic
law and
legal theory, discarding
the classical Arabic terms.
Although
authors
present
these modern manuals as accurate
representations
of Islamic
legal theory
in its classical
form,
this is
clearly
not the case. Even more
problematic,
certain
professors
of
Sharl'a faculties have
adopted
as course material these modern
usul1
textbooks,
written for law students and
containing
a
highly
truncated and
epistemologically
incoherent form of Islamic
legal
theory.
Our aim is to
explain
how this
happened
and how the
classics of Islamic
legal theory
have
gradually
been
superseded by
modern textbooks.
The first two
parts
of this article describe the context in which
Islamic
legal theory
(usul
al-fiqh)
is
currently taught
in the Shar?'a
faculties of five
university
centres:
al-Zaytuna, al-Qarawiyyin,
al-
Azhar,
Damascus
University
and
Jordan University.
I examine
curricula and textbooks with a view to
determining
the amount of
time
spent
in classrooms on Islamic
legal theory
and the
type
of
course material used. I will show that the classics of Islamic
legal
theory
are not
comprehensively taught
at the
undergraduate
level
in the Sharl'a faculties of these
university
centres; rather,
the
curriculum is based
predominantly
on
contemporary
textbooks written
by professors
for their students. The third and
longer
section of this
article
explains why
this is the case
by looking
into the
origins
of
the modern usuli textbook and how it
gradually
came to
replace
the
classical works.
2
In other
words,
Islamic
legal theory
is useful to law schools because it
provides
a semantics for
interpreting
texts. Further research is
required
in order
to determine whether or not modern textbooks
propose
a new Islamic
legal
theory.
226
1. Islamic
Legal
Theory
Courses in
Sharia
Faculties
Generally speaking,
Islamic
legal theory
does not
occupy
a
prominent
place
in Sharl'a faculties. This is as true
today
as it was in the
past,
when the
greatest
amount of time was devoted to
teaching
substantive
law, al-fiqh,
in madrasas and
mosques.
The difference is that
today,
in addition to Islamic substantive
law,
Western
positive
law
(al-qdnun),
as
practiced
in Arab
countries,3
has been added to the curriculum of Shari'a faculties. This was
done to allow students to
acquire
the
training necessary
to work in
a
legal system
that has been
profoundly
transformed since the 19th
century,
when Western codified law was first
adopted,
secular courts
first
established,
and codes of
procedure
introduced that
required
new
professionals
to run the
system, i.e.,
court
officials, lawyers,
and
judges
who
specialised
in the different branches of Western
law.
Beginning
with Gamal Abdel Nasser's reforms of
1961,4
al-
Azhar has
progressively
introduced Western
positive
law into its
curriculum. Its Sharl'a
Faculty,
renamed
al-SharZ'a
wa'l-qanun,
now
trains students for all
legal professions, making
it
possible
for Azhari
graduates
to
compete
for
jobs
with
graduates
of law faculties at
other
Egyptian
universities. The old
programme,
al-Sharfa
al-isldmryya,
was
eventually
reintroduced to train students
exclusively
in the
Islamic sciences.5 In
Fez,
al-Qarawiyyin
followed suit and
adopted
3
Jota bene: In this article when I use the
expression
"Western
law",
I am
referring
not to law as it exists in the
West,
but to Western codified law
(mostly
of
French,
German and Swiss
origin)
that has been
adopted
and reformulated
by
Arab
legislators.
Cf. Wael B.
Hallaq,
A
History
of
Islamic
Legal
Theories
(Cam-
bridge: Cambridge U.P., 1997),
210.
4 Law 103 of
May 5,
1961. This
law, among
other
things,
introduced the
teaching
of
medicine,
engineering, agriculture,
commerce and
management
to al-Azhar.
Today
al-Azhar is
composed
of more than 52 faculties in the
capital
and
provinces.
5
The 1964
University
Calendar
(Taqwimjdmi'at
al-azhar
1964)
shows that
the Shari'a
Faculty
offers
only
one
four-year undergraduate programme
that
comprises
a mixed curriculum of Western law and Islamic law and
legal theory,
129-31. In the 1968-1972
University
Calendar
(Taqwzmjami'at al-azharfi
arba'
sanawat
1968-1972),
the
Faculty
is referred to as
kulliyat
al-Shara'a
wa'l-qanun
and offers a
five-year undergraduate programme
of mixed law for
Egyptians
and a
four-year undergraduate programme
for
foreign
students that includes
fewer courses of Western substantive
law,
86-90. Thus the al-Sharia
al-isldmnyya
programme
as it exists
today
was reintroduced after
1972;
further research is
required
to determine the exact date of its reintroduction.
227
MONIQUE
C. CARDINAL
a
programme
of mixed law in 19636 after the
Shari'a
Faculty
was
created.7 In addition to
training
teachers of the Islamic
sciences,
al-
Qarawiyyin
continued to
prepare
students to work in the
legal
field
as
notaries, judges
and
government officials, although
its
graduates
could not
practice
as
lawyers; advocacy
was reserved for law
faculty
graduates.
In
Tunisia,
in
1960-61, al-Zaytuna
was
downgraded
from a
flourishing
institution of both
secondary
and
post-secondary
education to a
Faculty
of
Theology
and
Religion incorporated
into
the
University
of Tunis. No
attempt
was made to
expand
its
curriculum in order to
incorporate
new
subject
matter so as to
prepare
legal profession.
To the
contrary,
the curriculum offered there
today
includes
only
one elective course
on Western
positive
law while the time devoted to
teaching
Islamic
substantive law has been reduced
greatly
as
compared
to the
past
and to other
university programmes (see
Table
1).
In a drastic
departure
from other institutions with Sharia
faculties, al-Zaytuna
does not focus on the Islamic
sciences,
but offers
many
courses in
the
humanities,
privileging
Islamic
thought
and
philosophy.
The
fact that its main institute is one of
Theology
and not of al-Sharl'a
distances it from
any preoccupation
with
law,
Islamic or Western.8
Al-Zaytuna regained
its
autonomy
in
1987,
and in 1995 moved
into new facilities.
However,
its student numbers remain modest
(about 600), and, despite
this
rebirth,
it remains an institution for
training secondary
teachers of Islamic
religion
and
thought.
As for the
younger institutions,
the Shari'a
Faculty
of Damascus
University,
created in
1954,
offers a number of courses in Western
positive
law in addition to the basic curriculum in Islamic law and
6
Decision no. 63.485 of the
Ministry
of National
Education, May 7,
1963.
7
Royal
decree no.
1.62.249, February 6,
1963. The Arabic
Language Faculty
of Marrakech and the
Theology Faculty
of Tetouan were created
by
the same
decree. In 1975
they
became branches of
al-Qarawiyyin,
as did the Sharl'a
Faculty
of
Agadir,
founded in 1979. This article deals
only
with the Sharl'a
Faculty
of
Fez,
considered the
original faculty (al-kullya al-umm)
of
al-Qarawiyyin.
8
Three institutions make
up al-Zaytuna:
the
Higher
Institute of
Theology,
which is attended
only by
Tunisian
students;
the
Higher
Institute of Islamic
Civilisation,
which caters to
foreign students, offering
both Arabic
language
training
and an
undergraduate programme
similar to that of
Theology;
and
the Centre of Islamic Studies of
al-QayrawSn,
a research centre where no
teaching
takes
place.
This article refers
only
to the
programme
of the
Higher
Institute of
Theology.
228
legal theory.
Most of its
graduates
find
jobs
as teachers of
religion
or Arabic at the
primary
and
secondary levels,
or as
employees
in
government ministries,
most
notably
the
Ministry
of
Religious
Endowments. Since the
1980's,
Western
positive
law has been
taught
in a
comparative
framework with Islamic law9
-this,
perhaps,
in an
attempt
to rationalise its
presence
in a
programme
that does
not,
at least in
Syria, prepare
legal profession.'?
When the Shari'a
College
of Amman
joinedJordan University
in
1971,
a unit of four courses in Western
positive
law was
being
taught
at the
undergraduate
level.
Today,
the
undergraduate
programme
offers
only
one course on
Jordan's
Civil
Code, taught
in a
comparative
framework with Islamic substantive law. At the
graduate level,
additional time is allotted to
teaching
Western
positive
law in a
two-year programme
that trains students to become Sharl'a
judges.
This brief
survey
of the Sharfa
programmes
of the five
university
centres under
study
reveals
that,
in the last
forty years,
the time
devoted to
teaching
the Islamic sciences has decreased because of
the introduction into the curriculum of Western
positive
law or
other
subject
matter. On the other
hand,
in the
Sharia
faculties of
Damascus
University
and
Jordan University,
a more recent trend
is to teach Western
positive
law in a
comparative
framework with
Islamic substantive law.
The amount of time devoted to
teaching
Islamic
legal theory
at
the five universities differs
significantly.
Al-Azhar devotes the
greatest
number of hours to
teaching
Islamic
legal theory:
four
half-year
courses for its
undergraduates
in the al-Sharfa
al-isldmfyya programme,
and five for its
undergraduates
in the al-Shar'a
wa'l-qdnun
programme.
Damascus
University
devotes four one-semester courses to Islamic
legal theory
at the
undergraduate level,
while
Jordan
University
offers three
half-year
courses. At the Sharl'a
Faculty
of
Fez,
al-
Qarawiyyin
devotes two full
years
of its
four-year undergraduate
9
Daliljdmi'at dimashq 1983-1984,
154-6.
10
Since
1947, Shari'a
court
judges
are
required
to be
graduates
of a law
faculty (Law
decree no.
80, June 30,
Article
71.3).
It is worth
noting that,
in
his
fourth-year
Sharia
faculty
textbook on
judicial
institutions and civil
procedure,
usul
professor
Muhammad
al-Zuhayli
demands that Shari'a
faculty graduates
be
granted
the
right
to
qualify
as Shari'a court
judges.
Cf. Usul al-muhdkamdt
al-shar'`yya wa'l-madaniyya (Damascus:
Damascus
University Press, 2003-4, 1st
ed.
1981),
103.
229
MONIQUE
C. CARDINAL
programme
to
teaching
Islamic
legal theory." Finally, al-Zaytuna's
full-year introductory
course is
supplemented by
a
follow-up
course
lasting
half a
year
at its
Higher
Institute of
Theology.
The total
number of
teaching
hours devoted to Islamic
legal theory,
Islamic
substantive law and Western
positive
law at the
undergraduate
level for the five universities is shown in Table 1. The
figures
proposed
are
approximations because,
based on first-hand
experience,
it is difficult to determine the exact number of
teaching
hours for
any course,
as the number of hours varies from one
year
to the
next,
depending
on calendar
holidays
and events. Sometimes
professors
and students are absent because of the
pilgrimage ('umra
or
hai),
while
during
Ramadan some
professors give
lessons in the
mosque
or
go
on missions to
preach
and lecture in other cities or
countries.
Thus, religious
duties sometimes take
precedence
over
teaching
and
attending
classes. In
addition,
courses are often slow
to start at the
beginning
of the academic
term,
and
only really
commence when students decide to show
up.
What is
more,
the
number of sessions
taught may vary significantly
from one
professor
to the
next,
the
general
rule
being
that the more conscientious the
professor,
the
greater
the number of sessions held. Of the five
university centres, only
at
Jordan University
are
professors
and
students monitored
closely,
since this institution is
semi-private
and
students
pay
for each class-hour
attended;
the
University
wants to
ensure that students are
getting
"their
money's
worth." In the other
institutions,
which are
entirely state-funded,
the actual number of
teaching
hours for Islamic
legal theory,
or
any
other course for that
matter,
is
very
fluid and difficult to determine. For these
reasons,
the
figures
in Table 1 are offered
only
as
guidelines.'2
" This is also true for
al-Qarawiyyin's
other Shari'a
Faculty
at
Agadir.
At
al-Qarawiyyln's Theology Faculty
at
Tetouan,
Islamic
legal theory
is
taught
for four full
years,
but Western
positive
law is not
taught
there.
Thus,
a
degree
from the
Theology Faculty
does not lead to a career in the
legal profession.
As
for
al-Qarawiyyin's
Arabic
Language Faculty
in
Marrakech,
Islamic
legal theory
is
taught
for
only
one
year.
Cf.
Daliljdmi'at al-Qarawiyyzn, 1990,
353-60.
12I calculated the total number of hours on the
following
basis: the
teaching
year
at
al-Zaytuna
and
al-Qarawiyyin, respectively comprises
26 and 28 weeks
of
classes;
the semester
system
of
Jordan University,
al-Azhar and Damascus
University (minus
time allotted to
study weeks,
examination
periods
and
holidays)
comprises respectively 10,
9 and 8 weeks of classes.
Again,
these are
only
approximations
and are not
representative
of all courses offered at the universities.
Due to considerations of
space,
five
appendices detailing
the course
listings
of
the Sharl'a
programmes
of the five universities could not be included in this
article. These
listings
will be made available in a future
publication.
230
Table 1
University
Total
teaching
Total
teaching
Total
teaching
hours of
qanun
hours of
fiqh3
hours of usul al-
fiqh
al-Azhar
al-Shar'a
al-isldmiyya
-
846 180
al-Shari'a
wa'l-qanun
1350 630 252
al-Qarawiyyin
812 574 112
Damascus 16014 504 136
Jordan
30 33015 90
al-Zaytuna
_
16
12317 98
Table 1 confirms the orientations of the different
undergraduate
Sharl'a
programmes
referred to earlier. Western
positive
law
(al-
qdnun)
is
taught extensively
in al-Azhar's al-Sharia
wa'l-qanun pro-
gramme,
and at
al-Qarawiyyin,
where students are trained to work
in a
legal system
dominated
by
Western law. Islamic substantive
law
(al-fiqh)
is central to the
programmes
of al-Azhar
(al-Sharia
al-
isldmiyya),
Damascus
University
and
Jordan
University,
all of which
train students to teach the Islamic
sciences, or,
as in the case of
Jordan, prepare
them for future
training
as SharT'a
judges.
Al-
Zaytuna's programme
is
exceptional because,
as
mentioned,
little
time is allotted to
teaching
Finally,
Table
1 confirms that fewer hours are devoted to
teaching
Islamic
legal
theory
(usul
al-fiqh)
in the five
university
centres than to
teaching
The
marginal place
of Islamic
legal theory
in the curriculum of
Shart'a faculties becomes even more salient if one
compares
the
programmes
of 2002 with those of the recent
past.
For
example,
al-
Qarawiyyin's
1963 Shari'a
programme, though
extended from three
13
Courses on
personal
status are calculated as
part
of
thefiqh
curriculum.
14
Since the courses on
comparative
law
(the
Islamic and Civil law
traditions)
deal
predominantly
with law of Western
origin, they
are tabulated as
qanun.
15
Three elective
courses,
in all a total of 90
hours,
are also offered in Islamic
substantive law.
16
Al-Zaytuna
offers a
third-year
elective in Western
positive
law which totals
32 hours.
17 A
fourth-year
elective is offered in
comparative
Islamic law which totals
65 hours. Thus the student is able to
expand
his/her
knowledge
of Islamic law
if so desired.
231
MONIQUE
C. CARDINAL
to four
years
in
1983, actually
reduced the time devoted to
teaching
Islamic
legal theory:
from three
years
in 1963 to two
years
since
1983.18
Likewise,
in
1972,
Islamic
legal theory
was
taught
for four
full
years
at
Jordan University
in the
undergraduate
Sharl'a
pro-
gramme,19
whereas in
2002, only
three
half-year
courses were offered.
When Damascus
University
and al-Azhar
adopted
a semester
system
in 1982 and 1997,
respectively,20
the aim was to double the number
of hours devoted to Islamic
legal theory
so that what was
originally
taught
in one
year
would be condensed into one semester.
However,
neither
programme
was able to
fully implement
such measures and
the number of hours devoted to Islamic
legal theory
has decreased
slightly.2'
A number of current
professors
are dissatisfied with the
semester
system
because their students do not have
enough
time to
assimilate the
subject
matter. In
fact, many teaching
hours are lost:
although
the time allotted to
study
weeks and examination
periods
was doubled
(two
sets of exams are administered instead of
one),
the academic
year
was not extended. Some
professors prefer
a
mixed
system
in which certain courses would be
taught
on a
yearly
basis and others for a semester. This is the
system
that
al-Zaytuna
has
adopted: primary subject
matter is
taught
for a full
year
while
secondary subject
matter is covered in one semester. The semester
system
is in fact considered
counterproductive by many professors
because schedules have not been
readjusted
to
compensate
for class
time lost to
study
and examination
periods.
Truncated
programmes
have made the
teaching
of
lengthy manuals, contemporary
or
classical,
more difficult
and,
inevitably,
have contributed to the
"excerpt-
approach"
to
teaching
Islamic
legal theory
and other Islamic sciences.
18
al-Mamlaka
al-maghribbyya, al-Jarida al-rasmiyya,
no.
2662,
November
1,
1963
(Jumada al-thaniyya 14, 1383),
2494.
19
Dalil
kullyat al-Shar'a, al-jdmi'a al-urduniyya,
1392
H./1972,
14.
20
For
Damascus,
Decree No.
2059,
October
24, 1982,
article 86. Official
legislation
for al-Azhar has not been
found,
and I therefore
depend
on interviews
conducted with
professors
as the main source of information.
21
Cf. 1981-82 and 1983-84 Calenders of Damascus
University, pp.
226-7
and
154-6, respectively.
For
al-Azhar,
see Dalal
kulliyat
al-Sharfa
wa'l-qdnun
bi'l-
qdhira, pp.
6-9 and
manuscript copy
of al-Khitta
al-dirdsiyya li-qism
al-Shar'a al-
isldmiyya
as well as al-Khitta
al-dirdsiyya li-qism
al-Shar'a
wa'l-qanun, pp.
1-5.
232
2. Islamic
Legal Theory Textbooks, Contemporary
and Classical
In the five
university centres,
no
professor
at
present
relies
solely
on classical sources to teach Islamic
legal theory.
A
contemporary
textbook is the main
reference,
and a classical
work,
in the form of
an
excerpt,
is used to
supplement
the lesson.
At
al-Azhar,
the course on Islamic
legal theory
is
officially
divided
into two
parts,
al-dars
al-maw.duz'
and al-dars al-nassl. In the first
part,
the
professor explains
the
subject
matter
(maw.di') using
his
textbook;
in the second he reads and comments on an
excerpt
from
a classical work
(nass).
The aim of al-dars al-nassa is to train students
to read the classical sources. The
professor's contemporary
text,
written in
simple
and clear
prose, prepares
them to do so
by
introducing
the
topic
under
study,
so that
they
have an initial
understanding
of it before
tackling
the classical text. On the
exam,
the student is tested on both the
contemporary
and classical works.
Theoretically,
an
equal
amount of class time is
spent
on both the
contemporary
textbook and the classical
text; however,
for the most
part,
the balance
weighs
in favour of the
contemporary
work
(based
on
my
observations while
attending classes).
For the convenience of
students,
some
professors append
the classical
excerpts
to the end
of their
textbooks,
and much less
space
is allotted to the classical
text than to the
contemporary
one.
Consider,
for
example, Jalal
al-
Din 'Abd al-Rahman's textbook for
fifth-year
students of the Sharf'a
wa'l-qanun programme, Ghayat
al-wusul ild
daqa'iq
'ilm al-usul: al-adilla
al-mukhtalaffi-h.22
The text itself is 417
pages long,
while the
appended
excerpt
from al-Asnawi's
Nihdyat al-sul,
the
representative
classical
Shafi'i treatise
taught
in the
undergraduate programmes,23
totals 16
pages.
Another
example
is Ramadan Muhammad 'Id Hatlml's Buhuth
fi'l-hukm
al-shar'a
wa-aqsdmuh
'inda
al-usuliyyan,
a textbook for fourth-
year
Hanafi students. Hatlmi's own text covers 151
pages
while the
appended excerpt
from
al-Taftazanl's
Sharh al-talwih 'ald
al-taw.dh,
the official Hanaft Islamic
legal
theory
text
taught
at the under-
graduate level, occupies only
30
pages.
Yet another
example
is
Diyab
Salim Muhammad 'Umar's Buhuth
fJ
usul
al-Jiqh li'l-hanafiyya,
the textbook for
third-year
HanafT
students,
which is 151
pages
22 See
Appendix
1 for detailed references.
23
Courses in Islamic substantive law and
legal theory
are
taught according
to either the Hanafi school of law or the Shafi'I school.
233
MONIQUE
C. CARDINAL
long;
the attached classical text covers 32
pages.24
In
all,
about one-
third of al-Asnawi's
Jihdyat
al-sul and a
quarter
of al-Taftazan's
Sharh al-talwih 'ala al-taw.dih are
taught
in the
undergraduate
pro-
grammes
of al-Shar'a
al-isldm'yya
and al-Shar'a
wa'l-qdnun.25
At Damascus
University,
the
writing
of a
university
textbook
is
supervised by
the
Directory
of Textbooks and Printed
Matter,
the
MudTriyyat
al-Kutub
wa'l-Matbu'dt,
as
stipulated by legislation
promulgated by
the new Ba'th socialist
regime
of 1963. The "Law
to nationalize
university
textbooks"26
clearly
articulates the
philosophy
behind the "nationalised"
university
textbook:
professors
are
required
to write a textbook or a collection of notes for each course
taught,
which the
university
then
publishes
and sells at a reasonable
price
to ensure that it is accessible to all
students, especially
those with
modest financial resources.27 The
quality
of each textbook is checked
by
a central committee and its
price
is controlled
by
the
university.
Professors are
paid
a one-time
lump
sum for
writing
the textbook
and
they
do not receive
royalties. Thus,
their textbook becomes the
sole
property
of the
university.
Under no circumstances
may
a
book that has not been
approved by
the
university
be
taught (Article
1).
Law no. 39
ofJune 7,
2001 reiterates the rules in
greater
detail.28
Thus,
unlike their Azhari
colleagues,
Damascene
professors may
not
supplement
their
salary by publishing
their textbooks
privately
and
selling
them to students. The
Syrian university system
mandates
a more disinterested
approach
to financial remuneration.29
24
Three other
examples
are 'Abd al-Fattah
Husaynl al-Shaykh's
textbook
for
first-year
Shafi'T
students, Dirasatfi
usul
al-fiqh:
264
pages
of textbook and
40
pages
of the classical
excerpt; Diyab
Salim
Muhammad 'Umar's textbook
for
second-year students, Buhuthfi
usul
al-fiqh li'l-hanafiyya (190 pages),
TaftazanT's
Sharh al-talwih 'ala al-tawdih
(34 pages),
and 'Isa
'Ulaywa
Zahran's al-Muntakhab
fi
usul
al-fiqh (326 pages)
and the
excerpt
of al-Asnawi's
Nihdyat
al-sul
(54 pages).
25Dall
kullUyat
al-Shar'a
wa'l-qanun bi'l-qdhira,
Jdmi'at al-azhar,
n.d.,
19-21.
(N.B.
Bernard Botiveau states that this
guide
dates from
1987-1988,
Loi
islamique
et
droit dans les societes
arabes, 47).
26
Legislative
decree no.
168, September 21,
1963.
27
Notably
articles 2 and 4. The most
needy
students receive books free of
charge.
28
Article 5
stipulates
the list of conditions a
professor
must fulfill if he/she
wishes to write a textbook: five
years
of
teaching experience
at the
university;
two
years
of
teaching
the course for which a textbook is to be
written,
etc. A
professor
can ask for
permission
from the
department
to
publish
a book
previously
published by
the
university, providing
that he/she does not intend to use it as
a course book
(Article 15).
29
Bernard Botiveau claims the
contrary: i.e.,
that in the
1980's,
Damascus
234
Three main Islamic
legal theory
textbooks are
taught
at Damascus
University,
and all three have been
required reading
since the 1970's:
Muhammad
al-ZuhaylI's introductory
work for
second-year students,
Usul
al-fiqh
al-isldmz
(first
edition
1973);
Muh.ammad Sa'id Ramadan
al-Buti.'s
third-year manual,
Usuil
al-fiqh:
mabdhith al-kitdb wa'l-sunna
(first
edition
1974),
and Wahba
al-Zuhayli's fourth-year textbook,
al-WasIt ft
usul
al-fiqh
al-isldmi, which
comprises
two
volumes,
the
first covered in the fall semester and the second in the
spring.30
It
is
only during
the last semester of the
undergraduate programme
that a classical work is
read, alongside
the second volume of al-
Wasit
f
usul
al-fiqh
al-isldmi,
namely,
al-Shirazi's al-Luma'
fi
usul al-
fiqh.
In
fact, only
the first third of the treatise is
taught,
from the
opening chapter
to the section on
abrogation (al-naskh).31
At
Jordan
University,
'Abd al-Karim
Zaydan's al-Wajizft
usul al-
fiqh
is the textbook used in the first two courses of the
al-Fiqh
wa-
usuluh
programme.
The
required
readings
for the third
(and last)
undergraduate
course on Islamic
legal theory
are left to the
professor's
discretion.
Excerpts
of
contemporary
works are
taught
in the first
half of the
course,
while classical texts are read and
explained
in
the second half. For the academic
year 2002-3,
W.
al-Zuhayll's
chapter
on
al-ijtihdd
wa'l-taqlUd
from his Usul
al-fiqh
al-isldmi
(pp.
1059-1197)
was read
alongside
the
corresponding chapters
of al-
Shawkanl's Irshdd
al-fuhul
ild
tahqiq al-haqq
min 'ilm al-usul. In another
course, excerpts
from
Zaydan's al-Wajfz (pp. 386-98)
and from W.
al-Zuhayli's
Usul
al-fiqh
al-isldma
(pp. 1173-1207)
on the doctrine of
preponderance
(al-ta'arud
wa'l-tarfih),32
as well as the
chapter
on the
mujtahid
from al-Ghazali's
al-Mustasfj,
were used as course material.
University professors published
their textbooks
privately
and sold them to students
to
supplement
their
salaries,
as did
AzharT
professors.
His claim contradicts
legislation just
cited and known
practices.
Cf.
Botiveau,
55.
30 The 1993 and 1998 editions do not indicate the first
printing. However,
this work must date from the sixties for its second edition was
published
in
1969,
and Wahba
al-Zuhayli
started
teaching
at Damascus
University
in 1963
(Cf.
Dall
al-bdhithznfi'l-jami'at al-'arabiyya al-suriyya,
Damascus: Wizarat al-ta'llm
al-'all, 1998,
3rd
ed.,
321).
31
According
to the edition
prepared by MuhyT
al-Din Dib Mistu and Yusif
'All Bidiwi
(Beirut
and Damascus: Dar Ibn
Kathir,
2002
(1994)),
which is used
by
students at the Shari'a
faculty,
the sections
up
to
page
118 are
taught.
32
W.
Hallaq
defines the doctrine of
preponderance
as the
operation
of
choosing
"one
piece
of evidence
[...]
over and
against
another because it is
superior
to
it,"
152. See further Mohammad Hashim
Kamali, Principles ofIslamic
Jurisprudence (Cambridge:
Islamic Texts
Society, 1991,
2nd
ed.),
356-65.
235
MONIQUE
C. CARDINAL
In the
previous year (2001-2),
for the same
course,
an
excerpt
from
Badran Abu
al-'Aynayn
Badran's Adillat al-tashr' al-muta'drida was
studied
along
with selections on the
mujtahid
from al-Shatibi's al-
Muwdfaqdt ft
usul al-Shar'a and al-Ghazali's
al-Mustasf.33
Al-Zaytuna's programme
is divided into two sections: al-dars al-
nazarf,
a formal lecture
given by
the
professor,
and a
practical
session,
al-dars
al-musayyar,
in which the student is
required
to
participate actively
in class. More time
per
week is devoted to the
practical session,
which lasts one and a half
hours,
than to the
formal lecture of an hour's duration. The
practical
sessions at al-
Zaytuna
train students to read the classical works in all
disciplines
and,
in view of the small class
size,
students
get
a lot of
practice
doing
so. For
instance,
for their
practical
session,
students of Islamic
legal theory
were told to
prepare
the section on consensus
(al-ijm')
from al-Amidi's al-Ihkdm
fi
usul al-ahkdm. In the formal
lecture,
Professor Bubakr al-Akhzunr
explained
consensus
using
W.
al-Zuhayli's
Usul
al-fiqh
al-isldm.34 As stated in the course
description,
students
are
expected
to work with other classical treatises of Islamic
legal
theory,
such as
al-Shafi'i's al-Risala,
al-Ghazali's
al-Mustasfd,
and
Ibn Hazm's al-Ihkdm
ft
usul al-ahkdm.35 Professor al-Akhziri rec-
ommends the
following
additional
contemporary
and classical sources
of Islamic
legal theory
to second and
fourth-year
students: 'Abd al-
Wahhab
Khallaf,
'Ilm usul
al-fiqh;
Muhammad Abu
Zahra,
Usul al-
fiqh; al-Asnawi,
al-Tamhd
fi
takhr
j
al-furu'
'ald
al-usul; al-Bazdawi,
Usul
al-fiqh
and its
commentary by
al-Bukhari, Kashf
al-asrdr;
al-
Tilimsani, Mftah
al-wusuil ild bina'
al-furu'
'ald
al-usu-l;
al-Dabbusi,
Kitdb ta'sis
al-nagar; al-Shatibi,
al-Muwdfaqdt; al-Shawkani,
Irshdd al-
fu.hul;
and
al-Karkhl,
al-Usul al-lati
'alayha
maddr
al-ashyd'.
Like their Azhari and Damascene
colleagues,
some
professors
at
al-Qarawiyyn
write textbooks for their students.
Idrls
al-Za'rT
Lmbaraki, professor
at the Sharl'a
Faculty
of
Fez,
recommends
that
first-year
students consult his introduction to Islamic
legal theory
entitled Mabddi' al-wusul ild 'ilm al-usul.36
Second-year
students who
33
The classes of Professors 'Abbas Ahmad
al-Baz, MahmudJabir
and 'Abd
al-Mu'izz
Hurayz, respectively.
34
Class of October
9,
2001.
35
Jdmi'at al-Zaytuna,
al-ma'had al-a'ld li-usul
al-dan,
al-ustddhiyya fi'l-'ulum
al-
shar'iyya wa'l-tafkir al-isldmz, dalal
al-talib, 1995-1996, 12,
27.
36
Written in collaboration with 'Abd al-Hamid
al-'Alami, professor
at Sidi
Muhammad Bin 'Abdallah
University (Fez), Fez,
Matba'at
al-Tilimsani, 2000,
234
pp.
236
take Muhammad
Ya'qiubi
Khabiza's course on the
linguistic analysis
of
legal
texts use his al-Usul
al-lughawiyyafi tafsar
al-nusus
al-shar'yya.37
In another
second-year course,
students were advised
by
Professor
Muhammad al-'Alami to consult the second and third volumes of
Muhammad Abu al-Nur
Zuhayr's
Usul
al-fiqh,
a modern textbook
inspired by
al-Asnawi's
Nihdyat
al-sul.38 For a
first-year course,
Professor
'Abdallah Ghaziwi dictated in class verses 16 to 21 of'Abdallah b.
Ibrahim
al-Shinqit.'s39 Mardqi
al-su'ud
li-mubtaghi al-ruqi wa'l-su'udfj
usul
al-fiqh,
an
alfiyya
of Islamic
legal
theory;
he also
required
the
students to learn the verses
by
heart and to be able to
explain
them,
as
they might
be included on the final exam.40 Professor
Ghaziwi,
who does not as a rule ask students to memorize the
whole of
al-Shinqiti's Alfiyya,
believes it
important
that students
receive some
exposure
to classical works. In the
past
he used a
contemporary
textbook to teach Islamic
legal theory,
'Abd al-Wahhab
Khallafs 'Ilm usul
al-fiqh; recently, however,
he has
changed
his
approach
and he now refers to
al-Shinqit.i's
own
commentary
on
his
Alfiyya,
Jashr
al-bunud 'ald
Mardqi
al-su'ud.
Again,
however,
students
are not
expected
to read this work. Other
professors
deem it essential
to introduce students to classical texts.
During
his
lessons,
Professor
Lmbarakf dictated al-Ghazal's definition of
al-fiqh
in his
Ihya'
'ulum
al-dan,
and students were asked to comment on the
excerpt.41
After
37
Fez:
Info-Print, 1999,
234
pp.
38
Cairo: al-Maktaba
al-azhariyya li'l-turath,
n.d. A
professor
at
al-Azhar,
Muhammad Abu al-Nur
Zuhayr (1906-1987) taught
his 4-volume course book
(one
volume
per year)
in the 1950's.
39
A Maliki
legal
scholar from
al-Shanqata
who died in 1820. Cf.
Khayr
al-
Din
Al-Zirikli,
A'lam:
qdmus
tardjim
(5th ed.,
Beirut: Dar al-'ilm
li'l-malayin, 1980),
vol.
4,
65.
40
Class of November
1,
2002.
41
Class of October
29,
2002. The
excerpt
reads as follows: "wa
la-qad
kana
ism
al-fiqh
fT'l-'asr al-awwal
mutlaqan
'ala 'ilm
tariq
al-akhira wa-ma'rifat
daqa'iq
afat al-nufus wa-mufsidat al-a'mal
wa-quwwat
al-ihata
bi-haqarat al-dunya
wa-
shiddat al-tatallu' ila na'im al-akhira wa-istila' al-khawf'ala
al-qalb wa-yadulluka
'alayh qawlahu
'azza
wa-jalla, li-yatafaqqahu
fT'l-din
wa-li-yundhirui qawmahum
idha
raja'u ilayhim,
wa-ma
yahsul
bi-hi al-indhar wa'l-takhwif huwa hadha al-
fiqh
duna tafrl'at
al-talaq, wa'l-'itaq
wa'l-li'an wa'l-salam
wa'l-ijara [...]
wa-
lastu
aqul
inna ism
al-fiqh
lam
yakun
mutanawilan l'il-fatawa fT'l-ahkam al-
zahira wa-lakin kana
bi-tarlq
al-'umum wa'l-shumul aw
bi-tarlq
al-istitba' fa-
kana
itlaquhum
la-hu 'ala 'ilm al-akhira akthar." Abu Hamid Muhammad b.
Muhammad
al-Ghazali, Ihya
'ulum al-dan
(Cairo:
Dar
al-hadith, 1994),
vol.
1,
57-8. For
English translation,
see Nabih Amin
Faris,
The Book
of Knowledge Being
a Translation With Notes
of
the Kitdb al-'ilm
ofal-Ghazzdal's Ihya'
ulum al-din
(Lahore:
Ashraf
Press, 1962),
80-3.
237
MONIQUE
C. CARDINAL
expanding
on the students' remarks and
explaining
al-Ghazali's
definition in
greater detail,
Lmbaraki advised his students to
study
diligently
all the
quotations
from classical works that he would cite
in class
during
the
year,
as
they
would be tested on them in the
final exam. The
contemporary
textbook thus constitutes the basic
course material at
al-Qarawiyymn,
but
professors
do
sporadically
quote
classical works and
expect
students to be familiar with them.
These,
in
effect,
are the
only fragments
of the classical
legal
tradition
to which students at this level are
exposed.
Table 2
compares
the hours devoted to
teaching
classical
legal
sources to the total class hours of Islamic
legal theory
in the
undergraduate programmes.
Table 2
University
Total
teaching
Total
teaching Percentage
of total
hours of usul hours of classi- class hours devoted
al-fiqh
cal sources of to
teaching
the
usul
al-fiqh
classical sources of
usul
al-fiqh
al-Azhar
al-Shar'a
al-islamyya
180 90 50
al-Sharfa
wa'l-qdnun
252 126 50
al-Zaytuna
98 59 60
Jordan
90 15 17
Damascus 136 16 12
al-Qarawiyyn
112 difficult to difficult to
determine determine
The al-Azhar and
al-Zaytuna programmes,
whose
practical
sessions
(al-dars al-nassz / al-dars
al-musayyar)
focus on
reading
and
commenting
on classical
works,
stand out from the other
university programmes,
which devote less than 20% of overall class time to
teaching
the
classics.
Al-Qarawiyyin
differs from the other
university
centres in
that its
programme
does not
formally
allot time to
teaching
a classical
work,
but rather leaves it to
professors
to decide how to
incorporate
the
legal heritage
into the curriculum. This is
why
it is
impossible
to calculate the actual number of class hours
spent
on the classics
at
al-Qarawiyyin, although,
as
noted, professors
are well aware of
the
importance
of
introducing
students to the classics.
In addition to in-class time devoted to
reading
the
classics,
in
some
programmes
students are
required
to do out-of-class research
238
using
classical
(and
contemporary)
works as
primary
sources.
Again,
this is
compulsory
in some
programmes,
as at al-Azhar and Damascus
University,
while it is left to the
professor's
discretion at
al-Zaytuna
and
Jordan University;
at
al-Qarawiyyin
a student can choose to
do a
graduation project
on Islamic
legal theory,
with the
approval
of his/her
supervisor.
In the al-Shar'a
al-isldmiyya programme
of al-
Azhar,
a
study
session in Islamic
legal
theory, q'at
al-bahth
fi
usul
al-fiqh,
is
compulsory
in the first and third
years (second semester),
as it is for the al-Shar'a
wa'l-qanun programme
in the fourth
year
(first semester).
Students are asked to write an
essay
on a
specific
topic using
a list of references
provided by
the
professor.
In one
fourth-year
course offered
recently,42
students were
assigned
as the
research
topic
ara'
al-'ulamd'fi
hukm
al-ijtihddft
'asr al-naba
(s) (scholars'
views on the
legal
status of
independent reasoning during
the
Prophet's
lifetime).
For the Hanaft
school,
students were advised to use the
following
sources:
Kashf
al-asrr 'an usul al-Bazdawa
by al-Bukhari;
Kashf
al-asrar Sharh al-manar
fi
usul
al-fiqh
and Sharh al-manar wa-
hawdsh7hi min 'ilm al-usul
by al-Nasafi;
al-Usul
by al-Sarakhsi;
Sharh
al-talwih 'ald al-tawdih
by al-Taftazan?; al-Mughna fi
usul
al-fiqh by
al-
Khabbazi;
Mizan al-usul
fi
natd'i
al-'uqu-lf
usuil
al-fiqh by al-Samarqandi;
and Badhl
al-nazar fi'l-usul by
al-Usmandi. For the Shafi'i
school,
students were referred to the
following
sources: al-Ihkam
by
al-
Amidi;
al-Mankhul min
ta'liqdt
al-usu-l and
al-Mustasfj by al-Ghazali;
al-Burhdn
by al-Juwayni;
al-Mahsul
by al-Razi,
and Sharh
tanqih
al-
fusulft
ikhtisar
al-Mahsul
fi'l-usuil by al-Qarafi.
Most students relied
on a combination of classical and
contemporary
sources to do the
assignment.43
At Damascus
University
the
halaqat al-bahth,
or fourth-
year
research
course,
trains students to read the classical
legal
texts
and to use them to conduct research and write a small
essay.
At the
beginning
of the semester the
professor explains
to students how to
conduct research and write a
paper.
In the second
session,
the
professor
talks about the classical and
contemporary
works a student
can use to research his/her
topic
and dictates a list of about 30
42
Taught by
Professor Safa'
Qurani
of the Women's
College during
the
fall semester of 2002.
43
One student at the Women's
college
used the
following
sources:
al-Qur'an,
Misbdh
al-munar,
Mukhtar
al-sihdh,
Tdrkh
al-madhdhib,
al-Imam
Zayd
and Abu Han
fa
of Muhammad Abf
Zahra,
al-Muwdfaqdt
of
al-Shatibi,
al-Risala of
al-Shafi'i,
Sharh al-talwzh
'ala
al-tawdih of
al-Taftazanl, al-Mustasfd
of
al-Ghazali,
and al-
Ta'rnfdt
of
al-Jurjani.
239
MONIQUE
C. CARDINAL
sources.
Topics
are then
assigned
to students or a student can
choose a
topic
of his/her
own, provided
the
professor agrees.
The
remaining
classes are devoted to
reading
al-ShirazL's al-Luma',
as
mentioned
previously.44 AtJordan University,
students
may
be asked
(depending
on the
professor)
to do a
writing assignment
in the final
course on Islamic
legal theory.
In a recent course Professor
Hurayz
asked students to choose an
excerpt
from a classical
work,
then to
vocalize the text and comment on it.45
However,
not all
professors
at
Jordan University assign writing projects; many rely
instead on
exams for the evaluation of students. At
al-Zaytuna,
students are
asked to
prepare excerpts
from classical works for the dars
al-musayyar,
as mentioned. In
class, they
are called
upon
to read the classical
text aloud and
give
their
interpretation
of it
by restating
what the
author meant in their own words.
However, they
are not
graded
on these informal
presentations,
and their overall mark is based
solely
on
end-of-year
examinations.
Finally,
at
al-Qarawiyyin,
students
in their last
year
are
required
to research and write a
paper
under
the
supervision
of a
professor. However,
this
graduation paper (bahth
al-takharruj)
can be on
any topic
in the Islamic
sciences,
and thus is
not
necessarily
on Islamic
legal theory.
Whether students do
any
out-of-class research on Islamic
legal theory
therefore
depends
on
their individual choice and
aptitude.
Despite
the
assignments
and class work in Islamic
legal theory,
student
experience
of the classics remains insufficient. When asked
whether their
undergraduates
can
adequately
read and understand
classical
texts,
all
professors reply
in the
negative.
When asked to
explain why they
don't teach more of the
classics, professors
claim
that their students' level of Arabic is too
low,
that student numbers
are too
high
to allow for the needed individual
attention,
and that
there is not
enough
time.
Though
these reasons are
valid, they
are
only
the
symptoms
of
profound changes
introduced into the educa-
tional
system
over the
past century.
I turn now to the historical
forces behind the
progressive marginalization
of the classics in Islamic
legal theory
curriculum.
44
Students have the
option
of not
doing
the written
assignment
and
being
evaluated
solely
on their result in the final exam.
However,
almost all students
choose to do the
assignment.
45
The fall semester of 2001.
240
3.0. The
Genealogy of
the Modem Usuli Textbook
In Arab
universities,
classical works on Islamic
legal theory
are
taught mostly
as
excerpts alongside contemporary
textbooks. It is
therefore
important
to ask: to what extent do
professors depend
on
the classics to write their
textbooks,
thus
keeping
the classical tradition
alive,
albeit
indirectly.
For this
study,
I
analysed thirty-three contemporary
textbooks in
an
attempt
to determine which sources
professors depend
on to
elaborate the basic
concepts
and
principles
of Islamic
legal theory.46
The results show that
although
classical sources
dominate, only
two
professors rely exclusively
on classical texts to write their own
manuals: 'Abd al-Fattah
al-Shaykh
and Ramadan Muhammad 'Id
Hatimi.
All other
authors,
but
especiallyJalal al-Din
'Abd
al-Rahman,
'Abd al-Karim
al-Zaydan,
Muhammad
Ya'qubi Khablza,
Muhammad
al-Zuhayli
and Wahba
al-Zuhayli
refer
extensively
to
contemporary
works. The
following
list includes the classical references most cited
by
textbook authors in order of
frequency:
1. al-Ihkdm
(al-Amidi)
2.
Nihdyat
al-sul 'ald
Minhdj
al-wsul
(al-Asnawi
and
al-Baydawi)
3. Sharh al-talwih 'ala al-tawdih
(al-Taftazanl
and Sadr
al-Shari'a)
4.
Taysir
al-Tahrar
(Amir
Badishah and Ibn
al-Humam)
5. Fawdtih al-rahamut 'ald Musallam al-thubut
(al-Ansari
and Ibn 'Abd al-
Shakur)
6.
al-Mustasfa (al-Ghazalh)
7.
Hdshiyat al-Bannani
'ala Sharh al-Mahalli 'ala
Jam' al-jawdmi' (al-
Subki)
8. al-Mahsul
(al-Razi)
9. Sharh Mukhtasar Ibn
al-.Hdjib, (al-Iji)
10.
Kashf
al-asrdr 'an usul
al-Bazdawa
(al-Bukhar?)47
With the
exceptions
of
al-Ihkdm, al-Mustasfd
and
al-Mahsul,
these
treatises,
with their
accompanying
commentaries,
were used to teach
Islamic
legal theory
at
al-Azhar, al-Zaytuna,
and
al-Qarawiyyin
before the curriculum
changes
of the
past century.48
As mentioned
46
The
bibliography
of these textbooks is
provided
in
Appendix
1.
47
Though
authors refer to other classical
works, only
the ten most
frequently
cited are listed.
48
Cf.
al-Azhar: tarkhuh
wa-tatawwuruh
(Cairo:
Wizarat
al-awqaf
wa-shu'in
al-azhar, 1964), 283, 288-9, 297, 299;
al-Muchrif
[Leon Bercher],
"La reforme
de
l'enseignement
a la
grande Mosquee
de
Tunis,"
in Revue des etudes
islamiques
4
(1930), 452-3, 474-7;
Muhammad al-Shadhili
al-Nayfar, "Jami' al-Zaytuna,"
241
MONIQUE
C. CARDINAL
earlier, Jihayat
al-sul and Sharh al-talw.h 'ala al-tawd.h are the two
works
taught today
at
al-Azhar,
and the fact that
twenty-six
of the
thirty-three contemporary
textbooks consulted were written
by
AzharT
professors may explain why
these two works are the most
cited,
after al-Amidi's
al-Ihkdm;
in
addition, many professors
of
non-Egyptian
origin graduated
from al-Azhar
and, therefore,
studied the same
works as their
Egyptian colleagues.
These classical sources reflect
a centuries-old curriculum and the
practice
of
using
an
epitome
(mukhtasar)
to memorize the basic
principles
and
concepts
of a
discipline,
and then its
commentary (sharh)
or
supercommentary
(hdsh'ya)
to understand them.
Today's
curriculum differs from the
past
in that the
longer
classical
works,
such as
al-Ihkam, al-Mustasfd,
al-Muwdfaqdt,
and Irshdd
al-fuhul
are
taught,
but
only
in a
fragmented
form. This
explains why
students must
rely
on their
professors'
textbooks to
acquire
a
comprehensive understanding
of Islamic
legal theory
and its
methodology.
And
yet, although
classical sources
remain their
primary references, contemporary professors
nonetheless
use the first modern textbooks on Islamic
legal theory
as models to
write their own. The
following
modern usuli textbooks are those
most quoted in footnotes and
bibliographies:
1.
Tashil
al-wusul
ild
'ilm al-usul (Muhammad
'Abd
al-Rahman
'Id al-
Mahallawi)
2. Usul
al-fiqh (Muhammad
Abu
Zahra)
3. Usul al-tashr' al-isldmi
('All Hasaballah)
4. Usul
al-fiqh
al-isladm
(Muhammad
Mustafa
Shalabi)
5. 'Ilm usul
al-fiqh ('Abd
al-Wahhab
Khallaf)
6. Usul
al-fiqh (Muhammad
Abu al-Nur
Zuhayr)
7. Usul
al-fiqh (Muhammad al-Khudari)
8. Mudhakkirdt usul
al-fiqh (Muhammad
Abu al-Nur
Zuhayr)
9. Sullam al-wusul li-'ilm al-usul
('Umar 'Abdallah)
10. Usul
al-fiqh
al-isldmz
(Zaki
al-Din
Sha'ban)49
The most
frequently
cited manual is Tashal al-wusul
by
al-Mahallawi
(1863-1920),
a
judge
on the
Supreme
Shari'a court of
Egypt
who
in
al-Tarbyya al-isldm'yya: al-mu'assasdt wa'l-mumdrasat,
vol. 3
(Amman:
al-Mu-
jamma'
al-maliki li-buhuth al-hadara
al-islamiyya,
Mu'assasat Al
al-bayt, 1990),
1165;
Muhammad al-Tahir Ibn
'Ashur,
A
laysa
al-subh
bi'l-qartb? (Tunis:
al-Sharika
al-tunisiyya li'l-tawzi', n.d.), 236;
Mhammed Ferid
Ghazi,
"Le milieu zitounien
de 1920-1933 et la formation
d'Abu-l-Qacim
ach-Chabbi,
poete
tunisien
(1909-
1934),"
in Les Cahiers de Tunisie 28
(1959), 444, 446,
and Paul
Marty,
Le Maroc
de demain
(Paris:
Comite de
1'Afrique francaise, 1925),
54.
49
Other modern works are
cited,
but
only
the
top
ten are listed.
242
taught
Sadr
al-Shari'a's
al-Tawdih at al-Azhar
mosque
between the
two
evening prayers (maghrib
and 'ishd).50 His treatise was intended
to
help
students understand usuli classical doctrine. In his
introduction,
he states that he relied on
Jam' al-jawdmi'
and al- Tawd.h to write his
manual,51
which was
completed
on 19
Jumada I,
1338
(February
10,
1920).52
The works of another Azhari
professor,
Muhammad
Abu al-Nur
Zuhayr (1906-1987),
are also
frequently
cited. Mudhakkirdt
usul
al-fiqh
and
Usul
al-Jiqh (the
first
being
the course notes and
earlier version of the
second),
described as a
supercommentary
(hashiya)
on al-Asnawl's
NVihdyat
al-sul,
grew
out of Professor
Zuhayr's
teaching
of the latter work in the 1950's.53
Zuhayr
wrote his manual
as a modern reformulation of
Nihdyat
al-sul to enable students to
understand the classical work.
However,
since
Zuhayr's
textbook
can be read on its own without
referring
to
Nihayat al-sul,
it is not
entirely
accurate to label it a
supercommentary
on the classical
text.54
Again
we can assume that al-Mahallaw? and
Zuhayr
are
quoted
more
extensively
because most of the
contemporary
textbooks
analysed
were written
by
Azhari
graduates.
The other textbooks
quoted by professors
were written for students of other
institutions,
notably
the School of
Judges
(Madrasat
al-qadd' al-shar't),
Dar al-
'ulum,
and the law faculties of the Universities of
Cairo,
Alexandria
and
'Ayn
Shams.
3.1. School
of
udges:
From a 'Textual' to a
'Topical'Approach
to
Teaching
Islamic
Legal
Theory
To the best of
my knowledge,
the first modern Islamic
legal theory
textbook was Usul
al-fiqh
of Muhammad al-Khudari
(1872-1927),
a
product
of his
teaching
of Islamic
legal theory
at the School of
Judges
in
Cairo,
founded in 1907.55
50
Tashzl al-wusul ila 'ilm al-usul
(Cairo:
Mustafa al-Babi al-Halabi
wa-awladuh,
1923
(Rajab 1341), 2,
328.
51
Ibid.,
2.
52
Ibid., 328.
53
Usul
al-fiqh (Cairo:
al-Maktaba
al-azhariyya
li'l-turath, 1998,
4
vols),
vol.
1,
3-7.
54
As does
'AliJum'a
Muhammad in his introduction to
Zuhayr's
first
volume,
3.
55
Courses
began
October 1908.
243
MONIQUE
C. CARDINAL
In his
introduction,
al-Khudara
describes in detail how he came
to write his book.56 His first
attempt grew
out of his
teaching
experience
at Gordon Memorial
College
in the
Sudan,
where he
taught
Islamic
legal theory
to students
training
to become Sharl'a
judges.
He relied
largely
on the
following
classical treatises to write
the first draft: the Usul of
al-Bazdawi;
the Shurih
[Mukhtasar]
of Ibn
al-Hajib; Tanq.h
al-usul,
and Sharh al-Asnawi 'ald
al-Minhaj.
While in
the
Sudan,
he met Muhammad
'Abduh,
who read a
large part
of
this first
draft,
attended his class and led discussions with the students.
'Abduh later
suggested
to al-Khudari that he read
al-Muwdfaqdt
of
al-Shatibi in order to
deepen
his
understanding
of Islamic
legal
theory.
Al-KhudarT
did
so,
but claims that when he started
teaching
at the School
ofJudges
in
Cairo,
he
quickly
realised that his
knowledge
of Islamic
legal theory
was deficient in
comparison
to that of his
students. These Azhari
graduates
were well read in both the shorter
and
longer
works of Islamic
legal theory.57
Motivated and
guided
by
his
students, al-Khudarl
proceeded
to read more of the
classics,
especially
on matters
upon
which there were
disagreements
between
and
among
the different law schools
(al-masa'il al-mukhtalaffi-hd).58
Throughout
his
Usul,
al-Khudari refers
repeatedly
to the
longer
works of Islamic
legal theory,
al-Mustasfd, al-Ihkdm,
al-Tahr[r,
and
al-Muwdfaqdt.
He describes how he
composed
his work: after each
class,
he would extract the main
points
discussed and
proceed
to
write them
up
for his
students;
we assume that the
following day
he would receive their feedback on what he had written.
Finally,
al-Khudari relates
how,
at the end of the
programme,
a
group
of
56
Usul
al-fiqh (Cairo:
al-Maktaba
al-tijariyya al-kubra, 1962,
4th
ed.),
12-3.
57
The entrance examination to the School
ofJudges
was
extremely difficult,
and
only
the best of students were admitted. Ahmad
Amin, among
the first
graduates
of the
School,
notes that more than 200 students took the
exam,
but
only
five
passed
it
(My life,
trans.
IssaJ. Boullata,
Leiden:
EJ. Brill, 1978, 64).
58
Muhammad al-Khudari attended al-Azhar until the
age
of
nineteen,
when
he enrolled in Dar al-'ulum. He
graduated
from their Shar'a
judge programme
in 1895
(Cf. Taqwzm
Dar al-'ulum,
279).
His comment about the
superior quality
of the
Azharn
students makes one wonder
if,
had he
pursued
his studies at al-
Azhar,
he would have become more
proficient
in the classical treatises of Islamic
legal theory.
As is
known,
the curriculum of Dar al-'ulum was no
longer
based
exclusively
on classical works. The first modern manuals on
many subjects,
notably
Arabic
grammar,
literature and Islamic
history,
were written
by
Dar
al-'ulum teachers. Cf. Lois Armin6
Aroian, "Education, language
and culture
in modern
Egypt:
Dar al-'ulum and its
graduates (1872-1923)" (Ph.D. dissertation,
University
of
Michigan, 1978).
244
students
urged
him to
publish
his
work,
which he did
immediately,
as he
explains,
"for the benefit of those
working
in the field."59 This
first
edition, published
in
1911,
bore the title of Kitdb usul
al-fiqh.
Al-Khudari's
Usul served as the model for future Islamic
legal
theory textbooks,
and therefore warrants close attention to the context
and conditions in which it was
composed. First,
he wrote his textbook
for students who were
studying
outside of the traditional context of
al-Azhar.
Second,
the School
ofJudges
offered a mixed
programme
of Islamic and Western substantive law that included both Western
jurisprudence
(usul
al-qawdnzn)
and Islamic
legal theory.
The
topics
taught
in this
two-year
course included the branches of Western
positive law,
the basis for the creation and
interpretation
of
law,
and the civil and
penal
codes.60 Another
course,
offered for four
years,
trained students to draft
legal
documents and court records
(al-tawthiqdt al-shar'yya).6'
In
addition,
two
years
were devoted to
the
study
of the
Egyptian
court
system, waqf legislation, hisbiyya
councils,
the
judiciary,
and
Egyptian
administrative law and
govern-
ment.62
Finally,
the School
ofJudges programme
covered a
variety
of
topics
on Islamic
legal theory
in the
three-year
course of
study,
although
references to what was
taught
fail to cite a
specific
book
or treatise as the course manual.63 This marked a
profound change
in the
teaching
and
learning practices
known to older institutions
such as
al-Zaytuna, al-Qarawiyyn
and al-Azhar. In the
past,
the
learning process
centered on the careful memorisation
of,
and
commentary on,
a
specific
text. Even after the first
changes
were
introduced to the curricula of al-Azhar and
al-Zaytuna
in 1875
and
thereafter,
the
programmes
would
specify
the titles of the classical
works
taught
in each
discipline,
without
going
into detail as to the
"topics"
covered.
By shifting
the focus from the text
(matn)
to be
memorised and
explained
to the
"topics"
to be
taught,
the School
of
Judges
severed the link with the "textual
approach"
to
teaching
59 Muhammad Khalid Masud's
recounting
of how
al-Khudarn
wrote his
textbook is inaccurate
(as
al-Khudar?'s introduction
reveals),
and should be
revised
(Shatibi's
Philosophy of
Islamic
law, Islamabad: Islamic Research
Insititute,
1995, 113; 124,
footnote
12).
60 For
details,
refer to Madrasat
al-qada'
al-shar'i, Cairo: al-Matba'a
al-Amlriyya,
1907,
53.
61
Ibid.,
34.
62
Ibid., 38-9. There was also a
two-year
course on Sudan.
63
Ibid.,
52.
245
MONIQUE
C. CARDINAL
Islamic
legal theory
and created a context that made
possible
the
writing
of the modern textbook.64
3.2.
Egyptian
Law Faculties: The Incursion
of
Western Law and
Legal
Terminology
into Moder Usul Textbooks
Similar
developments
occurred in the law faculties of
Cairo,
Alex-
andria and
'Ayn
Shams
universities,
where students encounter Islamic
substantive law in the form of articles imbedded in
Western-inspired
codes.
Just
as these codes are a modern reformulation of Islamic
substantive
law,
Islamic
legal theory
textbooks are modern reformula-
tions of the classical works. Students now must
study
the textbooks
and are relieved of the
obligation
to read the classical
compendia
of Islamic substantive law or treatises on Islamic
legal theory.
It was
graduates
of the School of
Judges
who
initially supplied
the second
generation
of modern textbooks on Islamic
legal theory.
'Abd al-Wahhab Khallaf
(1888-1956),
a 1915 School of
Judges
graduate, began teaching
in the
Faculty
of Law at Cairo
University
in
1934,
where he
occupied
the chair of Islamic law until 1948.65
He wrote his
manual,
'Ilm usul
al-fiqh,
while
teaching
at Cairo
University.66
Muhammad Abu Zahra
(1898-1974),
another
graduate
of the School
ofJudges (in 1925),
started
teaching
at Cairo
University
in 1934. In
1935,
the
very year
in which Islamic
legal theory
was
introduced into the
curriculum,
he was
appointed
assistant
professor
in the
SharT'a
programme
of the
Faculty
of law.67 He
eventually
64
Gordon Memorial
College
in
Sudan,
where Muhammad al-Khudari wrote
the first draft of his book in
1905,
was instrumental in
dismantling
the traditional
system
of
learning, just
as Dar al-'ulum had set out to do earlier in
Egypt.
Cf.
Aroian.
By training
Sharl'a
judges,
the
College
entered in direct
competition
with the
teaching dispensed by
scholars of the Umdurman
Mosque.
The result
was that students trained at the
Mosque
were
eligible
to
occupy only
"junior
posts
in the
Shari'a courts." Cf. Mohamed Omer
Beshir,
Educational
Development
in the Sudan 1898-1956
(Oxford University Press, 1969),
48-9.
65
Al-Khallaf,
who
officially
retired in
1948,
continued to teach at Cairo
University
until his death.
66
Al-Khallaf dated the first introduction to his Usul 10 Ramadan 1361/
September 21,
1942.
67 Nasir Mahmud
Wahdan,
Abu
Zahra,
'dliman
isldmiyyan: haydtuh wa-minhajuh
fi
buhuthih wa-kutubih
(Cairo:
Nas
li'l-tiba'a, 1996), 36, 46, 89; Taqwim
Ddr al-
'ulum,
266-7. For full details of Abu Zahra's life and
career,
see
Wahdan,
32-
143.
246
became the head of the Shari'a
programme and,
for the five
years
prior
to his official retirement in
1958,
he served as vice-dean of
the
Faculty
of Law.68 Like
Khallaf,
Abu Zahra wrote his
textbook,
Usul
al-fiqh,
while
teaching
law students at Cairo
University;
it was
eventually published
in 1957.69
It is true that the
very
act of
writing
a modern treatise on Islamic
legal theory,
as al-Khudari
did,
drew students
away
from the classical
sources.
However,
the advent of Khallafs manual set a new trend
in the
teaching
of Islamic
legal theory
that undermined its
episte-
mological
and
theological integrity. Writing
for Cairo
University
law
students,
Khallaf s aim was two-fold:
first,
to make Islamic
legal theory useful-making it,
in
effect,
subservient to the needs of
law
students;
and
second,
to clothe the Islamic
legal
tradition in
Western
garb
in order to convince law
professionals
that it
is, indeed,
as modern and as "universal" as the Western
legal
tradition is
perceived
to be.
Khallaf
begins
his manual with a concise introduction in which
he
argues
that Islamic
legal theory
is an
important
tool that all law
professionals
can use to
interpret
the
law,
an
opinion
that would be
repeated by
other Sharl'a
professors writing
for law students: Abu
Zahra, Shalabi,
'Abdallah,
Sha'ban, Madkur,70 Bardisi,71
and more
recently, Zaydan.
That is to
say,
the rules for the
linguistic analysis
of
legal
texts established
by
Islamic
legal theory (mabdhith al-alfaz)
can be used to
interpret
codified texts of
Western-imported
law.
Thus, alongside Quranic
verses and
Prophetic traditions,
Khallaf
introduces articles from the
Egyptian
civil and
penal codes,
the
Egyptian Constitution,
and the
procedural
codes of the
Shari'a,
national and mixed
courts,
which are then scrutinized for their
implicit meanings,
clarified when shrouded in
ambiguity,
con-
textualised and restricted to
specific applications. Throughout
his
manual,
Khallaf
forges perfunctory
associations between Islamic
legal theory
and Western
jurisprudence.
The doctrine of
abrogation
68
Although
he retired in
1958,
Muhammad Abu Zahra continued to teach
at the
graduate
level in the Sharl'a
programme
of the Law
Faculty
of Cairo
University
until he
passed away
in 1974.
(Wahdan, 46, 70).
Muhammad al-
Zuhayll,
Wahba al-
Zuhayll
and 'Abd al-KarTm
Zaydan,
the last two both Cairo
University graduates,
refer to Abu Zahra as their
professor.
69
Wahdan, 48,
274.
70
Muhammad Sallam
Madkur,
Mabdhith al-hukm 'inda
al-usuliyyzn,
1959.
71
Muhammad
Zakariya al-Bardlsi,
Usul
al-fiqh,
195?.
247
MONIQUE
C. CARDINAL
exists not
only
in Islamic
legal interpretation,
but also in Western
legislative
bodies: old laws are
repealed by
new
ones, just
as the
Egyptian
Constitution of 1923 was abolished and
replaced by
the
1930 version.72 And
just
as it is inadmissible to
practice
ijtihdd
(independent legal reasoning)
if a
Quranic
or Sunnaic text un-
ambiguously
states the
legal
rules to be
applied
in a
particular
case,73
a codified law text cannot be altered or
reinterpreted
if it is
clear,
even if a
judge
considers it
unjust.74
Another
example
of
Khallafs blend of Islamic and Western substantive law-notorious
because reiterated
again
and
again by
later studies of
comparative
law and modern
reinterpretations
of the
Qur'an
and its
legal
content-
is his classification of
Quranic injunctions (aydt al-ahkdm) according
to different areas of Western law. For
Khallaf,
the
Qur'an comprises
70
injunctions
of
personal status,
70 of civil
law,
30 of criminal
law,
13 of
procedural law,
10 of constitutional
law,
25 of international
law and about 10 of commercial law.75 Still more
troubling
is Khallaf s
conflation of Islamic and Western
legal terminology,
which
produces
epistemologically
unsound statements. The term for
law, "qanun,"
and its denominal
adjective, "qdnuin,"
are often used in the
place
of "hukm" and "shar'a."
Thus,
the noun
phrase, "qdnun
shar'T,"
is
used to refer to a
divinely-based ruling (instead
of
hukm). Similarly,
he often refers to the
legal
texts-"al-nusus
al-qdnunnyya" (rather
than
al-shar'yya)-of
the
Qur'an
and the
Sunna; normally
the noun
phrase,
al-nusui
al-qdnuniyya,
is used to refer to texts of codified law.
Moreover,
when
referring
to divine
legislation,
he uses the term
"taqnan"
rather
than tashrz.76
Perhaps
most
troubling
is his semantic extension of
the noun al-shari'. In a classical Islamic
legal theory treatise,
the
lawgiver
or
legislator is,
of
course,
God. Even the
prophet
Muhlam-
mad,
who
arguably
was a
legislator,
is not referred to in Arabic as
al-shdri'. In Khallaf s
work,
because law of non-divine
origin
is
cited,
the term al-shdri' refers
implicitly
or
explicitly
at different
points
in
the text to the
body responsible
for
passing legislation. Thus,
on
two occasions when
referring
to the national courts'
procedural
law,
Khallaf
qualifies
al-shdri' as
Egyptian ("al-shdri' al-misra'),
which
72
Khallaf,
'Ilm usul
al-fiqh (Cairo:
Maktabat dar
al-turath, n.d.),
223.
73
Hallaq,
117.
74
Khallaf,
217.
75
Ibid., 32-3.
76
Ibid., 9, 46,
134.
248
later
requires
him to refer to al-shari' as "Islamic"
("al-shari'
al-
isldm"')
when
talking
about
divinely-inspired
law and its aims.77
Now,
who is this Islamic
legislator? Certainly
not God. Khallafs
section on consensus clarifies the
identity
of this
figure.
He
qualifies
the
mujtahid
as
"Islamic",
and claims that "consensus" is a collective
legislative ruling:
"tashr'
al-jamda"
or "al-tashri 'an
al-jamda."78
In
other
words,
a
group
of
mujtahids acting
as
"legislators"
decides on
the
ruling
to be
applied.
In his discussion of
consensus,
Khallaf
underscores the
practical
difficulties involved in
reaching
it and
proposes
a solution:
Why
not have the
government
administer the
whole
process
in order to make it viable? The
government
would
determine the intellectual
prerequisites
for the
practice
of
#jtihdd
and issue to those who
qualify
an
ijtihad
licence. In this
manner,
the
government
could
keep
a record of
mujtahids
and their
opinions.
Once these
opinions
are
recorded,
the Islamic
governments-and
Khallaf does not define what he means
by
Islamic
government-
could then
pool
them
together
in order to arrive at a consensus on
a
legal
issue that all Muslims would then be
required
to abide
by.79
One wonders what issues the
mujtahids
would have been
expected
to decide
upon,
since at the time Khallaf wrote his textbook the
entire
legal system
was administered
by
the state. Khallafs
proposal
obviously
contravenes the Islamic
legal
tradition in which
jurists
constitute an
independent, self-regulating body
of law
interpreters
who dictate the law both to those in
authority
and to the
community
at
large.
His scheme to "reform" consensus
simply
mimics the new
order: the total submission of the
legal
scholars and
jurists
to a
foreign, hegemonic system
of law administered
by
the state.
For the reader of classical Islamic
legal theory
to
qualify
the
lawgiver
and the
mujtahid
as "Islamic" sounds as
strange
as to
qualify
usul
al-fiqh
as isldmi. Yet this
phrase
occurs
again
and
again
in titles
of modern textbooks on Islamic
legal theory:
Sha'ban's and Shalabi's
Usul
al-fiqh al-isldm;,
the
al-Zuhayll
brothers'
textbooks,
al-Was.t
fi
usul
al-fiqh al-isldm,
Usuil
al-fiqh
al-isldmi,
and
many
more. The term
"usul
al-fiqh"
came to be
qualified
as "Islamic" when it started
being taught
in law faculties dominated
by Western-imported
law.
Al-fiqh
al-isldmi in the new
legal system
constitutes
only
a small
77 Ibid.,
174, 198,
204
78
Ibid., 48, 50.
79
Ibid.,
49-50.
249
MONIQUE
C. CARDINAL
portion
of the substance of the law
(notably
the
personal
status
code),
and is no
longer
administered
by
Islamic
legal experts,
al-
fuqahd',
but
by
new law
professionals.
For the most
part,
these
professionals
are referred to as
rjadl al-qanun
or rijdl al-tashri
(also
al-
qanuniyyun); however,
in some modern usulZ
textbooks,
the classical
term
faqzh, pl. fuqahd'
is also
applied
to the new law
professionals:
al-faqihfi al-qdnun (al-watdi)80
as
opposed
to
al-faqh
fi
al-Shar'a.
Shalabi
uses the term
al-fuqaha' al-gharbiyyun
to refer to Western
legal experts,81
and W.
al-Zuhayli explains
that custom is an
important
source of
Islamic substantive law
(al-fiqh
al-isldmi)
just
as it is in different
types
of international law
(anwd al-fiqh
al-'dlam).82
The semantic extension
of the terms
fiqh, faqfh
and
fuqahd'
to
encompass
Western law and
its
professionals,
even international
law,
is not
merely
a reflection
of
legal pluralism
in the Arab-Muslim world
today, but,
in
fact,
mirrors the new order in which Western law is the "national"
standard to which the Islamic
legal
tradition must accommodate
itself,
because
imposed by
state
legislation.
The modern Islamic
legal theory
textbooks listed earlier also
target
students of law
faculties, following
the trend set
by
Khallaf,
or almost. Sha'ban wrote for the law students of Ibrahim
University
(renamed 'Ayn
Shams in
1950);
'Abdallah for those of Alexandria
University;
and Abu
Zahra,
Shalabi and Hasaballah for those of
Cairo
University.83
In their
textbooks,
as
compared
with Khallafs
work,
the substitution of Western
legal terminology
for Islamic
legal
terms is rare. A
noteworthy example, though,
is to be found in
Sha'ban's discussion of al-masalih
al-mursala,
i.e. the
principle
of
80
Abu
Zahra,
Usul
al-Jiqh (Cairo:
Dar al-fikr
al-'arabi, 1997), 106, 126; Shalabi,
Usul
al-fiqh
al-isldma
(Beirut:
Dar al-nahda
al-'arabiyya, 1986), 12, 48;
W. al-
Zuhayli, al-WasAitf
usul
al-fiqh al-islamz,
vol. 1,
469.
81
Shalabi,
332.
82
W.
al-Zuhayli,
vol.
1,
387.
83
Sha'ban mentions in his introduction that his textbook was a
compilation
of course notes
originally
intended for students of Ibrahim
University,
and we
therefore assume that it was written around
1950,
the
year
the
university
was
founded,
and later renamed
'Ayn
Shams.
Although
I have been unable to
pin
down a date for his first
edition,
I
speculate
that his textbook was
completed
after Khallaf's but before Abu Zahra's.
Later,
'Abdallah's textbook was
published
in 1956. As for
Shalabi's,
the first edition was
printed
in Cairo in
1966,
while
the second
appeared
in 1974 when he was
teaching
law at the Arab
University
of Beirut. Hasaballah's textbook was
originally
written for Dar al-'ulum students.
The first edition of 1952 underwent three revisions before its last
impression
in 1971.
250
deriving
rules based on "a
rationally
suitable benefit that is not
sustained
by
textual evidence."84 When Sha'ban asks whether a
mujtahid
can establish a
legal
rule (yusharri'
al-hukm)
based on a maslaha
mursala,
he uses the verb
yusharri'
85
(to legislate),
which
normally
is
reserved for
God,
as most works of Islamic
legal theory confirm;
Sha'ban himself
repeatedly
uses this verb with God as its
subject
when
referring
to the intents of divine law.86
Subsequently,
when
discussing
the
importance
of al-masalih al-mursala as a
legal
source
that can meet the needs of modern
society,
Sha'ban associates the
activity
of the
mujtahid
with that of state
legislator.
He asserts that
persons
of
authority (wuldt al-umur), experts
in "the
spirit
of the
Shari'a,"
should have recourse to the
principle
of al-masalih al-
mursala in order to "make rules and laws
(al-qawdnin)
that will
promote
the
community's interests,
meet its
wide-ranging
needs and ever-
evolving
demands."87 A more common
example
of lexical substitution
is Abu Zahra's reference to the law of
God, using qdnun
instead of
shar'.88 And the noun
phrase
coined
by
Khallaf,
al-shari' al-isldmi,
occurs on a number of occasions in Abu Zahra's text.89 In addition
to these
sporadic examples
of lexical
substitution,
Western-inspired
law
emerges
in these textbooks
through
direct
quotation
of articles
from
Egyptian
codes
(frequent
in Abu Zahra's
chapter
on the
linguistic
analysis
of
texts),
and
through parallels
drawn between Islamic and
Western
jurisprudences. Thus,
Abu Zahra states that Islamic
juris-
prudence,
like its Western
counterpart, rarely accepts
the use of
inferential
reasoning (al-qiyds)
in criminal law cases:90 thus an act is
84
Hallaq,
112
85
Sha'ban,
Usul
al-fiqh
al-isldmz
(Beirut:
Matabi' dar
al-kutub, 1971),
162.
86
Ibid.,
385-9.
87
Ibid.,
169. 'Abdallah also
equates
the
activity
of the
mujtahid
with that of
state
legislator
when he affirms that the aims of the
law-e.g., promoting public
welfare-should be achieved
by legislation,
"al-tashr'
wa'l-taqnzn."
Cf. Sullam al-
wusul li-'ilm al-usul
(Alexandria:
Dar
al-ma'arifbi-misr, 1956),
238. The binomial
phrase
"al-tashr'
wa'l-taqnTn"
implicitly conveys
the new
reality
of the
legal system:
the dominance of state
legislation
over the informal
activity
of the
muftis.
88
Abu
Zahra,
167. Hasaballah also uses the
plural
noun
qawdnzn
instead of
ahkam,
Usul
al-tashr' al-isldmz
(Alexandria:
Dar al-ma'arif
bi-misr, 1971), 181,
182,
188.
89
Abu
Zahra, 245, 246,
306, 323,
336.
90 Abu Zahra
points
out that the HanafT school does not allow the use of
analogy
to
apply
the
punishment
of one crime to another whose
punishment
is decreed
by
God
(al-'uquba al-muqaddara).
For
example,
the
Shafi'T
school
concedes that the
punishment
for illicit sexual relations between a man and a
251
MONIQUE
C. CARDINAL
qualified
as a crime
only
if a text
explicitly
states it to be
so,
and
the
punishment
of a crime must be
stipulated by
the
law,
as stated
by
the
maxim, lajarnma
illa bi-nass wa-ld
'uquba
illa
bi-qdnun.9l
Another
parallel
advanced is the
principle
of istishab
whereby
"a
legal
state
of affairs is
presumed
to continue to be valid until there is reason
to
change
this
presumption."92
Abu Zahra claims that this
principle
underlies the
assumption
in Western criminal law that "the accused
is innocent until
proven guilty."93
Shalabi reiterates Abu Zahra's
comparisons.94
Abu Zahra also states that
just
as Islamic
jurisprudence
rejects ignorance
of the law as a
justification
for not
abiding by it,
so does Western
jurisprudence:
a citizen can
always
learn of new
laws because
they
are
published
in the official
gazette.95
'Abdallah
and Hasaballah echo Abu Zahra on this
point.96
Another
perceived
likeness is the decision reached
by
a court of
appeal
which sub-
sequently
becomes the basis for future
judgment
in a similar case:
Shalabi considers the doctrine of
precedent
akin to
consensus,
while
Abu Zahra classifies it as a form of inferential
reasoning
(qyds).97
Furthermore,
when
discussing
custom
(urf)
as a source of Islamic
substantive
law,
Shalabi includes a section on how custom is an
important
source of Western
law, especially
commercial law.98 It is
to be noted that such
parallels
occur
infrequently
in these
textbooks,
and cannot form the basis for
any argument
that would
posit
a
fundamental resemblance between the Islamic and Western
legal
traditions.
Indeed,
these authors never make this
claim,
and their
propensity
to draw such
parallels may
be
interpreted
as
attempts
to
appeal
to their
readership,
the students of the new law faculties. In
a
lengthy footnote,
Shalabi even mentions that the
question periodi-
cally
arises in law faculties as to whether or not Islamic
legal theory
woman
(al-zina)
be
applied
to the crime of sexual intercourse between men
(al-
liwi.t);
the Hanafi school does
not, according
to Abu Zahra.
Likewise,
the HanafT
school does not concede that the
punishment
of
falsely accusing
a woman of
illicit sexual relations
(al-qadhfi
be
applied
to crimes of insult or defamation
(al-
sabb, al-ta'n),
230.
91
Abu
Zahra,
230.
92
Hallaq,
113.
93
Abu
Zahra, 267.
94
ShalabT, 205,
346.
95
Abu
Zahra,
307.
96
'Abdallah, 109-10; IHasaballah,
401.
97
Shalabi, 184, footnote
2;
Abu
Zahra,
206.
98
ShalabT, 332-6.
252
should be
part
of the curriculum.99
Thus,
the
presence
of usul
al-fJqh
in law faculties was felt to be
threatened,
and the
highlighting
of
parallels
between Islamic and Western
jurisprudences by
usula
professors
in their works
may perhaps
be seen as tokens of recon-
ciliation aimed at
glossing
over
profound
differences between those
faculty
members with a secular
training
and those with a
religious
one. Yet
despite
these efforts to
lay
the foundation for a
dialogue
of some sort between two
very
distinct
legal
traditions,
a tone of
discontent
emerges
from these textbooks. In
fact,
what characterises
many
works on Islamic
legal theory
written after Khallafs is the
clear
expression
of
dissatisfaction, indeed,
of
outright indignation
that a
foreign system
of
courts,
codes and
procedures
has
replaced
the Islamic
legal system.
3.3. Criticism
of
the Westernized
Legal System
The criminal code was the first
target
of criticism. Sha'ban
began
the
offensive,
followed
by
Hasaballah.'00 Their main
objection
lay
with criminal
punishment
or what Islamic
jurisprudence
refers to
as
qisas
and hudud.
The cases discussed
pertain
to intentional homicide and illicit
sexual relations. Islamic substantive law
states,
in the case of
intentional
homicide,
that it is the
right
of the victim's
guardian
to
seek retaliation
(the
death
penalty)
or to
forgive
the
killer,
with or
without the
payment
of
blood-money.
However, according
to the
Egyptian penal
code
(based
on Western
law),
the victim's
guardian
has no
personal
control over the
proceedings
of a murder
case,
and
it is the state that
prosecutes
the accused and assesses the
appropriate
punishment
for his or her crime. Sha'ban observes that the Shari'a
is more
just
in that it
recognises
the human need for
revenge,
and
in the case of
pardon,
allows the victim to seek
compensation
in
this world
through
blood
money,
or in the hereafter
through
God's
reward for his/her total
forgiveness.
The law
imported
from the
West, by contrast,
fails to
acknowledge
the victim's
rights.
Therefore,
the victim's
family may
feel that
justice
has not been served
by
the
court
system
and
may
seek
revenge by killing
a
family
member of
99 Ibid.,
48-9,
footnote 1.
100
Sha'ban, 271-4; Hasaballah,
333.
253
MONIQUE
C. CARDINAL
the
accused,
whose relatives
might
then
retaliate,
with the result
that the
community
will be
exposed
to a vicious
cycle
of
retaliatory
killings. Thus,
for
Sha'ban,
the modern substantive law of the
Egyptian
penal
code contributes to social disorder and does not ensure the
security
of the
community.
As for illicit sexual
relations,
Islamic
and Western substantive laws
are,
in his
estimation, diametrically
opposed.
In the Islamic
system,
an unmarried
person
who commits
fornication is
punished by
100 lashes and the adulterer
put
to
death
by stoning.
The
wronged spouse,
in the case of illicit sexual
relations,
has no
say
in the
punishment
of his unfaithful
partner,
because illicit sexual relations are not
perceived
to be a
personal
wrong,
but rather a crime
against
God and the entire Muslim
community.
The
Egyptian penal code,
on the other
hand,
does not
recognise
fornication as a crime unless the victim was a minor or
was forced to have sex. As for illicit sexual
relations,
the
injured
husband has full control over the
proceedings:
he can initiate them
or discontinue
them,
and in the event of a
conviction,
he can
ap-
peal
for a dismissal. In
addition,
not all fornicators can be convicted:
certain conditions must be established before an accusation can be
made.'01
Finally,
the
penalty
for illicit sexual relations is
imprisonment.
In Sha'ban's
view,
modern substantive law renders illicit sexual
relations a
permissible
act since it does not
qualify
all sexual relations
outside of
marriage (for example,
sex between two
consenting adults)
as
illegal,
and leaves
prosecution
to the discretion of the
injured
spouse.
In Islamic substantive
law,
illicit sexual relations are
strictly
forbidden and
punished severely,
a
strong
deterrent that sends a
clear
message
to the
community
that such acts are not tolerated. As
Sha'ban
repeatedly emphasizes,
these laws
"imported
from abroad"
during
the colonial
period
violate the
Shar?'a,
the
Egyptian people's
traditions, customs,
and sense of
morality,
and
inevitably
contribute
to the
spread
of vice in
society.
He demands that
they
be abolished
and
replaced by penalties specified
in Islamic substantive law.
Similarly,
Hasaballah remarks that Western substantive law attaches
great
value to
protecting
the life of an
individual,
as in the case of
intentional
homicide, but,
unlike the
Shari'a,
does little to
protect
a
community's progeny (i.e.
with the
proliferation
of
illegitimate
births)
and
family
honour.
Abu
Zahra,
in
turn,
condemns the
undermining
of the Islamic
101
See
Sha'ban,
273.
254
legal system. Adopting
a
comparative approach,
he demonstrates
the
superiority
of Islamic over Roman law in matters
pertaining
to
social and sexual
equality, guardianship,
women's economic
rights,
the
just
treatment of
slaves,
incentives for
freeing slaves,
and social
assistance in matters of debt.102 He revels at the miracle that an
illiterate
prophet
such as Muhammad was able to
put
in
place
a
system
that rivalled Roman
law,
one of the most
sophisticated legal
systems
in the world. He denounces those who imitate French law
and
disregard Quranic
injunctions
in matters of
succession, marriage
and divorce.'03 And in the
concluding pages
of his
work,
Abu Zahra
directs his final criticisms at the
mufti
who issues a
legal opinion
that is not in accordance with the tenets of Islamic
legal theory
and
divine law and
attempts
to
please
those in
power
and
comply
with
people's
desires.'04
Shalabi, too,
criticises the
adoption
of law
"imported
from the West" that
goes against
Muslim traditions and
customs; however,
he blames
past jurists who,
for fear of misinter-
preting
the
Shari'a,
halted the
process
of
al-ijtihdd
and
thus,
with
time,
created an inert
system
that was unable to
respond
to societal
changes,
a
phenomenon
that the "enemies" of Islamic law used as
a
justification
to
replace
God's law with man-made
law.'05
The most elaborate defence of Islamic substantive law and
legal
theory
is that of 'Ali Hasaballah in the
concluding chapter
of his
Usul al-tashrf al-isldmL. Hasaballah sets out to show that the Islamic
legal system
is
superior
to
any
other
legal system
since it combines
law and
morality:
"A
Muslim, therefore,
cannot
say:
Give to Caesar
what is
Caesar's,
and to God what is God's."'06 He reviews the
rights
and
obligations
of a
Muslim;
defines the relations between
ruler and
ruled,
Muslims and
non-Muslims;
and
recapitulates
what
the sources of the law are and how
they
are to be
interpreted.
He
advocates that the
interpretation
of the law is and should be an
ongoing process,
that renders the
Shari'a a valid and
comprehensive
system
of law and
religion
for all times and
places.
As for Islamic
legal theory proper,
Hasaballah criticises those
Muslims who imitate
European
colonialists and want to introduce
102
See Abu Zahra 78-9.
103
Ibid., 87-8.
104
Ibid., 350.
105
Shalabi,
45.
106
Hasaballah,
411.
255
MONIQUE
C. CARDINAL
laws in the name of
progress
and
change
that
allegedly
are better
"adapted
to the social
milieu,"
despite
the fact that these laws
violate Islamic substantive law and its textual sources.'07 To achieve
this,
they reinterpret
the law
according
to the
principle
of al-masalih
al-mursala,
which allows them to formulate a
legal
rule without
basing
it on revealed text or inferential
reasoning
(qyds); only
the
notion of
public
welfare
guides
them in their
remodelling
of the
law. In his
chapter
on al-masalih
al-mursala,
IHasaballah
carefully
explains
the cases in which this
principle
can be used to make a
rule. He
diligently
examines the
legal opinions
of different
jurists
and schools of
law,
and
gives
numerous
examples
of earlier cases
based on this
principle (from
the
Prophet's Companions
to the four
Imams).
He then
analyses particular
cases in which a
legal
rule
based on maslaha mursala took
precedence
over a clear textual indicant
(Quranic
verse,
hadith)
or inferential
reasoning.
He looks at the
motivation behind such
reinterpretations
in order to demonstrate
that
they
are restricted to
particular cases, and,
consequently,
are
of rare occurrence in Islamic
legal practice.'08
For
example,
'Umar
did not
punish
thieves for
stealing
food
by cutting
off their hands
because the act took
place during
a
year
of the famine. He based
his
ruling
on the
principle
that the
preservation
of human life
justifies
even a forbidden
act; however,
his
reinterpretation
of the law did
not thereafter invalidate the
Quranic injunction
of sura
5,
verse
38,
which
clearly stipulates
the
penalty
for theft. After the famine
was
over,
the
penalty
of theft was reinstated.109 The
particular
circumstances of the
case, i.e.,
theft of food to avoid death
by
starvation,
did not
produce
a rule of
general application,
such as
"theft is
permissible
if it
promotes
the welfare of individuals." This
is the main criticism that Hasaballah levels
against
those Muslims
who want to utilise al-masalih al-mursala as the
overriding principle
for
deriving
law: an
exception
cannot become a rule
just
as law
based
solely
on
public
welfare or need cannot
supersede
the divine
law of revealed texts.110 Hasaballah then
gives many examples
of
exceptional cases,
speculating
about what would
happen
if
they
were to become
general
rules that
everyone
must
obey.
His
107
Ibid.,
181.
108
Ibid., 177-81;
188-9.
109
Ibid.,
189.
"l0
Ibid.,
180.
256
conclusions show that the
public
welfare of the
community
would
not be served in these
cases,
and the
community
would cease to be
Muslim."' Of all the modern usiul authors discussed in this
article,
Hasaballah went to the
greatest lengths
to denounce the elimination
of Islamic substantive law and
legal theory
from the
process
of
formulating
and
applying
the law in
society.
3.4. The Greater Incursion
of
Western Law into
Third-generation
Usuli
Textbooks
The
experience
of
writing
a modern textbook of Islamic
legal theory
had now come full circle. Al-KhudarT severed the link with the
classics
by writing
his textbook for Azhari
graduates
who were
being
trained as
judges
in a new court
system
that
applied
Western-
inspired
codes of
procedure;
Khallaf
incorporated
the substantive
law of the new codes and its
legal terminology
into the
textbook,
and, finally, Sha'ban,
Abu
Zahra, 'Abdallah,
Hasaballah and Shalabi
did so as
well,
while
expressing
their discontent with the fact that
Islamic substantive law and
legal theory
had been
displaced by
Western-imported
law and
practices.
How did this contribute to
the classics of Islamic
legal theory being taught
less and less
frequently
in Sharl'a
programmes?
To
begin
with,
some of these modern textbooks were
adopted
as
course material in those
programmes.
As
early
as
1946,
al-Khudari's
Usul
al-fiqh
was
being taught
at
al-Zaytuna alongside
Muhammad
al-Tahir Ibn 'Ashur's
Maqdsid al-Shar'a al-isldm'yya."2
As we saw in
part two,
Khallaf and Abu Zahra are still recommended as
secondary
reading
material for students at
al-Zaytuna.
Likewise,
Khallaf was
used
by
Professor Ghaziwi of Morocco as a course
textbook, only
to be
replaced
more
recently by
a traditional
author,
'Abdallah b.
Ibrahim
al-Shinqit..
At the
Theology Faculty
of
Tetouan,
a branch
of
al-Qarawiyyin,
one
professor
is
presently using
Khallaf as the
textbook for a
second-year introductory
course on Islamic
legal
theory.
Khallaf is thus still
very
much a fundamental reference.
Ibid.,
189-93.
112
Muhammad al-'Aziz Ibn
'Ashur, Jami' al-Zaytuna:
al-ma'lam
wa-rijaluh (Tunis:
Dar
Saras, 1991),
99.
257
MONIQUE
C. CARDINAL
Today, moreover,
a
third-generation
textbook of Islamic
legal theory
written for law students of the
University
of
Baghdad
is the basic
course book used in the
Shari'a
Faculty ofJordan University.
'Abd
al-Karim
Zaydan's
al-Wajiz fz usul
al-fiqh
is
taught
in two of the
three Islamic
legal theory
courses at
Jordan University.
This work
exhibits the distinctive characteristics of an usuli textbook written
for law students.113 It is worth
mentioning
that law students of
Jordan University
must attend the Islamic
legal theory
course at
the
Shari'a
Faculty. Obviously,
their needs were taken into account
when the choice of an usuli textbook was made.
Other
third-generation
textbooks share
many
of the traits of the
earlier modern manuals.
Although
Wahba
al-Zuhayli
makes no
references to codified law in his
fourth-year
manual
taught
at the
Shari'a
faculty
of Damascus
University,
he does
quote
Khallaf on
parallels
between Islamic and Western substantive
law, observing,
for
example,
that inferential
reasoning
is not an
accepted
source in
criminal cases
(for
most
Hanafts),
and that reformulation of the law
is not
permitted
if a text
clearly
states the
ruling
to be
applied
in
a
particular
case.14 He also summarizes Khallafs
proposal
to reform
consensus
by having
the
government
administer it.15 It is
surprising
that W.
al-Zuhayli
mentions Khallaf on this last
point,
since elsewhere
he
expresses
his conviction that the
only
true law is
divine,
and that
Islamic law is
superior
to secular law because of its moral and
religious
content that alone render it
capable
of
"securing justice,
public
welfare and
stability.""'6
In a section on the
subsidiary
sources
113
Numerous references to texts of codified
law,
both
Iraqi
and
Egyptian,
in the section on the
linguistic analysis
of
legal
texts
(282-3, 288-91, 321-4,
343, 345-6, 350-1, 355-6, 359-61, 362-3,
373-7); parallels
between Islamic and
Western substantive law
concerning
the
presumption
that individuals cannot
claim
ignorance
of the law to
justify
their unlawful
acts,
and that the accused
is innocent until
proven guilty (77, 114, 270-1);
differences in the two
legal
traditions in matters of intentional homicide and illicit sexual
relations;
similarities
and dissimilarities between Islamic and Western definitions of
legal competence
(the Iraqi
and
Egyptian
Civil codes and laws of
personal
status are
frequently
quoted, 92-114);
Khallafs classification of
Quranic injunctions according
to
areas of Western law
(156-7);
and
finally,
a variation on Khallafs reform of
consensus
whereby
an Islamic
academy
of
jurists collectively
would
agree
on
legal rulings,
which then would be
publicized
on the radio and in
printed
matter
(192-3).
114
W.
al-Zuhayli,
vol.
1, 268, 497;
vol.
2,
24.
15
Ibid., vol.
1,
136.
116
Ibid., 470.
258
of the
law,
W.
al-Zuhayli
discusses the
process
of state
legislation.
He
proposes
that law based
solely
on human
rationality
and will
(although
it
may undergo
the
legitimizing process
of
parliamentary
enactment)
cannot
bring
about true
justice
because the rational
abilities and moral character of humans are
basically
flawed.117 W.
al-Zuhayli
affirms that
legislative
power (sultat al-tashr')
is
solely
in
the hands of
God,
and that Muhammad as His
messenger
informed
the
community
of God's law. He adds that to describe the
mujtahid
or a
person
in
authority
as
"legislator" (al-musharri')
is to use the
noun in its
metaphorical
and not its
proper
sense.118
Reality, however,
proves
the
contrary,
and in Arab countries
today
state
legislation
is
certainly
no
metaphor.
W.
Zuhayli's younger brother, Muhammad,
who writes for second-
year
Sharl'a students at Damascus
University,
is
equally
adamant
about God
being
the true and
only legislator
(al-musharri' al-haqzqz;
wa-ld musharri'
siwdhu).'9
In the
opinion
of the
younger Zuhayli,
it
is God's Sharl'a that
guides people
towards
good
and
keeps
them
away
from "the dominion of false idols
(al-tawdghZt),
vain wishes
and
desires,
and man-made law
(al-qawdnmn al-wadiyya)."'20
Discernable
throughout
his work is an undercurrent of
hostility
towards Western-
inspired law; however,
this doesn't
prevent
him from
reproducing
Khallafs classification of
Quranic injunctions according
to Western
categories
in his
chapter
on the
Qur'an.'21
He
apparently
does not
see
any
contradiction between
rejecting
Western law as a source of
legislation
and at the same time
using
its
categories
to describe the
legal
content of the
Qur'an.
As
explained
in
part one,
courses of instruction in Western
substantive law are
part
of the curriculum of some Sharl'a faculties.
As we
saw,
textbooks written for law students have also been
adopted
as the basic course books or as
secondary reading
material for
Sharl'a students.
Moreover,
it was noted that in these law-school
textbooks,
codified law texts are
granted
the same status as
Quranic
and Sunnaic
texts, i.e., they
are valid sources of
legislation. Finally,
we detected a more insidious incursion of
Western-inspired
law
117
Ibid.
118
Ibid., 472.
119
M.
al-Zuhayli, 103, 215,
361.
120
Ibid., 101.
121
Ibid., 128-9.
259
MONIQUE
C. CARDINAL
into the
Shari'a
curriculum
through
the not
always cognisant
use
of Western
legal terminology
or
categories
to
explain
the basic
concepts
and methods of Islamic
legal theory.
The classics of Islamic
legal theory
came to be
taught
less
frequently
because Sharfa faculties
increasingly
were influenced
by,
and even
adopted
the curriculum
and textbooks
of,
the law schools.
Just
as the medieval madrasas and
mosques
were the centres of
higher
education in the
past,
the new
law schools were
among
the first modern institutions of
higher
learning
established in the Arab world
during
the late Ottoman
Empire
and under colonial administration. Khedive Ismail's School
of Law was founded in 1868 in
Egypt,
before Dar al-'ulum and
other modern institutions of
higher learning;
the Centre d'etudes
juridiques,
with its two branches in Rabat and
Casablanca,
was the
second modern institution of
higher learning
founded
by
the French
in Morocco in 1920
(the
first was Rabat's Institut des hautes etudes
marocaines,
established in
1912);
the Centre d'etudes
juridiques
of
Tunis,
founded in
1922,
was the third modern institute of
higher
learning
in Tunisia established
by
the French
(the
first two were
l'Ecole coloniale
d'agriculture
and l'Ecole
superieure
de
langue
et
de litterature
arabes,
founded in 1898 and
1911, respectively);
and
after the Medical Institute was founded in 1901 in
Damascus,
a
School of Law
opened
in Beirut in 1912 and was then transferred
to Damascus in 1914-these two institutions were the
original
faculties
of the
Syrian University (later
Damascus
University)
created in
1923.122 Because
they
were at the forefront of
developments
in the
educational
system,
law schools were initiators of
change
while the
traditional institutions of
learning
were either followers or resistors
to these
changes.
A more
general development
that contributed to the breakdown
of
teaching
the classics manifested itself in the new institutions of
learning,
such as Dar al-'ulum in
Cairo,
or the
Sadlql
and Khaldun
colleges
in Tunis. This was the introduction into the curriculum of
new courses in
history, geography, geometry, mathematics,
and
physics,
all of which
required
new textbooks often
supplied by
the
teachers of these
young
institutions.
Eventually,
the
practice
of
writing
modern textbooks
spilt
over into the traditional
subjects
of Arabic
grammar, literature,
and the
religious
and
legal
sciences. Soon the
122
Jean-Jacques Waardenburg,
Les Universites dans le monde arabe actuel
(Paris;
La
Haye: Mouton, 1966),
vol.
1, 214, 223, 274-5,
291.
260
classical texts
(mutun)
that had been
taught
for centuries
disappeared
from the curriculum. Let us look at a concrete
example
of this
process:
the fate of the
Alfiyya
of Ibn Malik
(d. 672/1273),
a 1000-
verse
rhymed
treatise on Arabic
syntax.
3.5. The
Eclipse
of
Arabic Grammar and Usu.i Classics
by
Modem Textbooks:
A
Drop
in Standards
Though
written in Bilad al-sham in the 13th
century,
Ibn Malik's
Afiyya quickly
earned a
place
as one of the core texts of Arabic
grammar, taught
and commented on in all the
major
centres of
learning
in the Arab-Muslim world.
Traditionally,
it was considered
a text of intermediate
difficulty, taught
after
al-Ajurrumiyya,
Qatr
al-
nadd and Shudhur
al-dhahab,
but easier than
Mughni
al-labib, al-Mufassal,
and
al-Kdfiya.23
In the 19h
century,
even after reforms were introduced
at al-Azhar and
al-Zaytuna (and
later at
al-Qarawiyyin),
the
Alfiyya
was still one of the basic texts that all students had to master
by
the
time
they
finished their
studies.'24
The modern
history
of the
Alfiyya
in
Egypt
reveals the
changes
experienced by
the educational
system
from the 19th
century
onwards.
As
early
as
1835,
the
Alfiyya (with
its
commentary by
Ibn
'Aqll)
was
printed
on the
royal press
and distributed to
primary
schools
(maktabs)
in
Egypt:
it was the first
printed
text used
by Egyptian
students.125
The new reforms of 1873-1874
stipulated
that
government pre-
paratory
schools
(maddris
tajhzlzyya)
were to teach the
Alfiyya
over
three
years (300
lines to be memorized in the first
year,
400 in the
second and 300 in the
third),
and
al-Suyuti.'s commentary
on it in
the fourth.126 For the entrance exam to the
newly-founded
Dar al-
123
The authors of these treatises are Muhammad Ibn
Ajurrum
al-SanhajT
(d. 732/1323),
Ibn Hisham al-AnsarT
(d. 761/1360)-for
the three
treatises, Qatr
al-nada,
Shudhur al-dhahab and
Mughna al-labib,
al-Zamakhshari
(d. 539/1143)
and Ibn
al-Hajib
(d. 643/1245)
for
al-Mufassal
and
al-Kadfya, respectively.
Cf.
J. Heyworth-Dunne,
An Introduction to the
History
of
Education in Modern
Egypt
(London: Luzac, 1938), 43, 57, 58;
Gilbert
Delanoue,
Moralistes et
politiques
musulmans dans
l'Egypte
du XIXe siecle
(1798-1882) (Caire:
IFAO du
Caire, 1982),
vol.
1, 321-2,
footnote
327;
vol.
2, 359,
588.
124 G.
Delphin, Fas,
son universite et
l'enseignement superieur
musulman
(Paris: Leroux;
Oran:
Perrier, 1889), 33; Bercher, 453-4;
Al-Azhar: tadrkkhuh
wa-tatawwuruh,
289.
125
Aroian, 22; Heyworth-Dunne, 157; Delanoue,
vol.
1,
321.
126
Heyworth-Dunne,
381.
261
MONIQUE
C. CARDINAL
'ulum,
a
college designed
to train teachers for the
government
schools,
the first candidates of 1872
(all
Azhari
graduates)
had to
demonstrate that
they
were
proficient
in the
Alfyya
and were able
to understand Ibn
'Aqil's commentary.
127
The
Afiyya
was also included
in the collection of classical texts
bearing
the title of
Majmu'
min
muhimmdt
al-mutun,
which started
circulating
in
print
as
early
as
1866;
these collections included the basic texts of the traditional
curriculum that a student was
expected
to know.128
Soon modern Arabic
grammar
books distributed in
government
schools
throughout Egypt
would
replace
the
Alfiyya, and,
like other
classical
texts,
it
eventually disappeared
from the new
public
schools.
Rifa'a Rafi' al-Tahtawi's
al-Tuhfa al-maktabiyya li-taqrZb al-lugha
al-
'arabyya,
the first modern manual of Arabic
grammar,
was first
printed
on the
government
school
presses
in 1286/1869.129
Husayn
al-MarsafT, head
professor
at Dar
al-'ulum,
soon
published
his
anthology
of
literary texts,
al-
WasZla
al-adabiyya
ild al-'ulum
al-'arabayya,
compiled
over a
period
of 7
years (1872-1879)
while
teaching
Arabic
literature at the teacher's
college.
This two-volume
anthology,
published by
the
government presses
in 1872 and
1879, respectively,
was distributed
throughout Egypt's
schools.130
Many
more such
textbooks were to follow.
In
1938,
a
nine-part
article
appeared
in the Azhar
journal, Majallat
al-Azhar,
expressing deep
concern about the low standards of Arabic
in
public
schools.131 In his
"al-Lugha al-'arabiyya bayna al-quwwa
wa'l-
duf," Sadiq
Ibrahim
Arjun
observes
that,
because
government
high
school
graduates
have such low
proficiency
in Arabic
upon entering
university,
standards have fallen. He
compares disparities
in the
Arabic
grammar
curricula of the
Egyptian University (later
Cairo
University)
and
al-Azhar,
and reveals that classical texts
taught
at
the
elementary
and
secondary
levels at al-Azhar make
up
the
syllabus
of the first three
years
at the
Egyptian University.
In the first
year
of the Arabic
language programme
of the
Egyptian University,
Ibn
127
Aroian,
45.
128
The full
incipit
of the collection is Hddha kitdb
majmu'
min muhimmat al-
mutun al-musta'mala min
ghalib
khawdss
al-funun jama'tuhu
li-shiddat
ihtyaj
al-tdlib
ilayh.
An 1881
(Muharram
1299
H.)
edition was
printed
on a
press
at
al-Azhar,
which
suggests
that Azhari students used these handbooks.
129
Delanoue,
vol.
2,
628.
130
Aroian,
101.
131
This article is
quoted extensively by Aroian,
334
262
Hisham's Shudhiir al-dhahab is
taught;
this text is studied in the
fourth
year
at the
elementary
level at al-Azhar. The first two
parts
of the
Afliyya
and Ibn
'Aqil's commentary
on it are covered in the
second
year
at the
Egyptian University;
these sections are
taught
in
the first
year
of al-Azhar's
secondary
schools.
Finally,
the last
part
of the
Alfiyya
is
taught
in the third
year
at the
university,
while it
is
completed by
the end of the
secondary
level at
al-Azhar.'32
Arjun
criticizes the modern textbooks used in
government
schools for
oversimplifying
Arabic
grammar
in the name of "reform." Rather
than
simplifying grammar (taysar al-qawd'id),
school
programmes
should
have
adopted
a
progressive approach
to
teaching
the
subject,
beginning
with
introductory
texts and
moving
on to more advanced
ones. As a
"counter-reform,"
Arjun proposed
the establishment of
a unified curriculum of Arabic
grammar taught
at
al-Azhar,
Dar
al-'ulum and the
Egyptian University.
He envisions this curriculum
as
comprising
the mutun
traditionally taught
at
al-Azhar, commencing
with
al-Ajurrumiyya, progressing
with
al-Azhariyya'33
and
Qatr al-nadd,
and
ending
with Shudhur al-dhahab at the
elementary
level. These
would be followed
by
the
Alfiyya
at the
secondary level, supplemented
with, first,
Ibn
Aqil's commentary,
then Ibn
Hisham's, and, finally,
with al-Ashmuni's. At the
university level,
students would
specialise
in the
Mughna
al-labib of Ibn Hisham and the
Mufassal
of al-
Zamakhshari,
accompanied by
its
commentary by
Ibn Ya'ish.134
Needless to
say, Arjun's proposal
had no effect on
government
policy,
and little did he realise
that,
with
time,
the
teaching
at al-
Azhar also would come to
depend
less and less on the classics. As
recently pointed
out
by Georges
Bohas and fellow
linguists
of
Arabic,
the treatises of Ibn
Malik,
Ibn
Hisham, al-Zamakhshari,
and Ibn
Hiajib,
with their
respective commentaries,
in addition to the Ham'
Hawami' Sharh
Jam' al-jawdmi'
of
al-Suyiuti (d. 911/1505)
"contain
the most
comprehensive
and accurate
description
of the
[Arabic]
language
available to this
day."135 They
also remark that
al-SuyutT.
is considered "the last Arabic
grammarian
of
note,"
and that
"[a]fter
132
Arjun, Majallat
al-Azhar 9
(1938),
531-5.
133
A small treatise on Arabic
syntax
written
by
Khalid al-Azhari
(d.
905/
1499).
134
Arjun,
10
(1938),
693-5.
135
Georges Bohas,J.-P.
Guillaume and D.E.
Kouloughli,
The Arabic
Linguistic
Tradition
(London,
New York:
Routledge, 1990),
16.
263
MONIQUE
C. CARDINAL
him, grammatical theory gradually degenerated
into a set of
pre-
scriptive recipes."
This
collapse
of the Arabic
linguistic
tradition
reached its low
point
with the so-called educational reforms of the
19th
century,
as
Bohas,
Guillaume and
Kouloughli
conclude: "The
nineteenth-century JVahda,
in the name of
simplification
and 'common
sense',
only kept
the
recipes, cutting
them
completely
from their
theoretical roots. This
degenerated
version of the tradition
is,
to
this
day,
the basis for
teaching grammars
used in most Arab
countries."136 The same
may
be said for modern textbooks of Islamic
legal theory:
these are
recipes stripped
of both their theoretical
basis and
practical utility
since the classical
legal system (of q.ddi,
mufti
and
faqih)
has ceased to
exist.'37
Today,
the dissolution of the classical curriculum has resulted in
a decline in
learning
standards in Islamic
legal theory.
An usuli
professor
at the
University
of Muhammad V in
Rabat,
Ahmad al-
Raysuin explains'38
that when he started
teaching
at the
undergraduate
level,
he intended to use al-Ghazali's
al-Mustasfj
to teach Islamic
legal theory.
He soon realised that the text was too difficult for
students and turned to al-Amidi's
al-Ihkdm;
upon discovering
that
this treatise also was too
demanding,
he settled on al-Tilimsani's
(d.
771/1370) Miftdh
al-wusul ila bina'
al-furu'
'ald
al-usul,
a
popular
Maghribi
mukhtasar used in the
Maghrib
for centuries. This text
was
taught
at
al-Qarawiyyn
Sharl'a
high
school in the 1960's and
1970's as related
by al-Jilal
al-Mari-n,
an usuli
professor
at Muham-
mad V who attended both the Shari'a
high
school and
university
of
al-Qarawiyyn.'39
Professor
al-Raysuni
is
required
to teach a
basic text of the classical curriculum in Islamic
legal theory,
i.e. al-
Tilimsani's
al-Miftdh,
at the
university
level because the vast
majority
of
high
school students who
go
on to
university
have studied
only
the modern textbooks
designed by
the
Ministry
of Education
and,
therefore,
do not have the
experience
of
reading
classical texts. To
the
contrary,
students who have
graduated
from
SharT'a
high
schools
(al-madaris
al-'ataqa), which,
in addition to the national
programme,
offer courses in the Islamic
sciences,
find the Islamic
legal theory
136
Ibid.,
16-7.
137 This claim merits a full
investigation
into the
advantages
and
disadvantages
of modern usult textbooks as
compared
to the classics. This will be the
subject
of a future article.
138
Interview,
November
5,
2002.
139 Interview, October
29,
2002.
264
courses at the universities a
repetition
of what
they
have learnt at
the
high
school level.
The
experience
of Professor
al-Raysuin
illustrates the breakdown
of the classical tradition of education. In the
past,
older institutions
such as
al-Qarawiyyin, al-Zaytuna
and al-Azhar were in
charge
of
education at the
secondary
and
post-secondary
levels,
and
they
had
a curriculum based on a wide
range
of classical
texts,
from
simple,
introductory
treatises to more
complex
and advanced
ones,
as we
saw in the case of the texts used to teach Arabic
grammar.
Once
the link between
secondary
and
post-secondary
levels of education
was
weakened,
as at
al-Qarawiyyln,
or
severed,
as at
al-Zaytuna,
the classical tradition was dismantled.
Al-Qarawiyyin
did
preserve
one feeder
high school,
but its
university programme
was
opened
to students from
government high
schools that did not offer intensive
training
in the
religious
sciences. There was
always
the
proverbial
ccourse in
religion
that added a veneer of the Islamic sciences to a
student's
general culture,
but it fell far short of the classical
training.
Thus,
the curriculum had to
adapt:
the basis of
learning
was now
formed
by
either modern textbooks
or,
as we
saw, elementary
texts
of the classical tradition or
excerpts
from
longer
works. As for al-
Zaytuna,
the 1958 Education Law
passed by
the
independent
Tunisian
government
led to a
downsizing
of its
secondary
education
stream. In
1965,
it was
totally
abolished.140 In
1958,
372 students
at the
post-secondary
level attended
al-Zaytuna. Finally, al-Zaytuna
was
incorporated
into the new
University
of Tunis as a
Faculty
of
Theology
and
Religion
in 1960-61.
Only
250 students of diverse
nationality
attended the
Faculty
in 1966.141
In
1953,
al-Azhar and
al-Zaytuna
had student bodies of similar
proportions,
with enrolments of
30,000
and
20,000, respectively.'42
Today, however,
al-Azhar is what
al-Zaytuna might
have become:
a vast institution
encompassing elementary, secondary
and
post-
secondary
education.143
Although
Islamic
legal theory
is not
taught
140
In
1955-56, al-Zaytuna's
27 branches of
secondary
schools
(6
in
Tunis,
19 in the
provinces,
and 2 in
Constantine, Algeria) comprised 25,000
students.
At the
post-secondary level,
there were a total of 884
students,
628 in the
SharT'a
programme
and 256 in literature. Cf. Mahmoud Abdel
Moula,
L'Universite
zaytounienne
et la societe tunisienne
(Tunis, 1971), 167-8,
183.
141
Ibid.,
212.
142
Ibid.,
213; Jacques Jomier, "Al-Azhar,"
in El
2,
vol.
1,
814.
143
In
1982,
there were 550
elementary
schools with
112,000 pupils;
298
265
MONIQUE
C. CARDINAL
at the
preparatory
and
secondary
levels at
al-Azhar,
Islamic sub-
stantive law
is,
and
part
of the curriculum is based on classical
treatises with their commentaries.'44 As described
above,
of all the
university programmes
examined
here,
al-Azhar devotes more hours
to
teaching
Islamic substantive law and
legal theory and, therefore,
covers more of the classical literature than
any
other
programme.
This is
due,
in our
opinion,
to the vital link that has been maintained
between
secondary
and
post-secondary
education at al-Azhar.
Students are able to build on the
training they
have
acquired
in
reading introductory
classical texts at the
secondary
level when
they
start their
university
education. It is this
continuity
in the
learning process
that ensures the survival of the tradition.
Conclusion
In the
preceding
account of the rise of the modern textbook and
decline of the
classics,
we have alluded to three
driving
forces behind
educational
changes
in the Arab-Muslim world over the
past
two
centuries. The Arab reformists of the 19th
century,
colonial ad-
ministrators and the
independent
nation-states all contributed to
the
restructuring
of schools and redefinition of the curriculum.
Although they
did this
differently,
one basic
goal
that
they
all
shared was to
promote
what
they perceived
as a "modern
education",
which
encompassed
first and foremost
subjects pertinent
to
developing
technology (military
and
non-military),
the sciences and
professional
training. Foreign languages
were also essential because
they
are a
means of access to such
knowledge.
As for the classical
disciplines-
Arabic,
the
religious
sciences and Islamic law-the traditional texts
(mutuin)
continued to be
taught
at the new
schools,
such as Dar al-
'ulum and
al-Sadiqi College,
at least in the
beginning.145
Soon,
preparatory
schools with
54,760 boys
and 87 with
4,
423
girls;
173
secondary
schools with
83,586 boys
and 72 with
26,753 girls;
17 teacher
training colleges
with
6,000 students,
and
finally
at the
university
level with branches in
eight
different
cities,
there were
65,530
students. Cf.
Pierre-Jean Luizard, "Al-Azhar,
institution sunnite
reformee,"
in Entre
reforme
sociale et mouvement national: Identite
et modernisation en
Egypte (1882-1962),
Alain Roussillon et al.
(Caire: CEDEJ,
1993),
528.
144 Herve
Bleuchot, "L'Enseignement
du droit musulman en
Egypte:
un
enjeu
politique,"
in
L'Enseignement
du droit
musulman,
eds. M
Flory
and
J.-R. Henry
(Paris
:
CNRS, 1989),
309-10.
145
Founded in 1875
by Khayr
al-Din
al-Tunisi, prime
minister of
Tunisia,
266
however,
the classical texts were
replaced by
modern textbooks
written
by
scholars with a classical
training,
for the most
part, e.g.,
Rifa'a Rafi'
al-Tahtawi, Husayn
al-Marsaft and Muhammad al-
Tahir Ibn 'Ashur.
The
younger generation
was attracted to career
opportunities
that a modern education could
provide. Many
sons of
prominent
scholars attended the new schools rather than
pursuing
a classical
training. They
became the
teachers, engineers,
doctors,
administrators
and law
professionals
much needed
by
the
developing
"nations." It
was
through higher
education that
graduates
of the modern schools
and institutions would become the
political
elite of the
independent
Arab states. Once in
power, they
would
support
the
type
of education
they
had received.
Upon independence,
the Arab states had vital decisions to make
concerning
education.
They
needed to eradicate
illiteracy
and educate
the masses in order to
develop
human and material resources. The
number of institutions of
higher
education was insufficient to train
the
personnel
to run the state's
ministries, government services,
universities,
schools and
hospitals,
and had to be
expanded.
Some
states,
like
Syria, opted
for an Arabic
system
of
education,
despite
having
been colonized
by
the French and dominated
by
French
schools.146 Tunisia
preferred
a
bilingual system,147
while Morocco
adopted
a
progressive approach
to
arabicizing
instruction and
government
administration.148
However,
no state chose to maintain
al-SadiqT College
had a mixed
programme
of the classical
disciplines,
modern
sciences and
foreign languages, taught by al-Zaytuna professors
and
foreign
teachers. In
1907,
a committee of Tunisian
professors
and civil servants
(most
of them
graduates
of
al-SadiqT)
recommended that the classical texts be
replaced
by
modern manuals. Modern manuals were
imported
from
Egypt
in 1908. Cf.
Noureddine
Sraieb,
Le
college
al-Sadiqi
de Tunis 1875-1956:
Enseignement
et na-
tionalisme
(Paris: CNRS, 1995), 54-5;
115-28.
146 Based on recommendations of Sati'
al-Husrl,
the
parliament
of an in-
dependent Syria
voted in 1944 to
adopt
an Arabic curriculum for its school
system,
thus
doing away
with French education. Cf. William L.
Cleveland,
The
Making of
an Arab Nationalist: Ottomanism and Arabism in the
Life of
Sati' al-Husri
(Princeton UP, 1971),
78-9.
147
The 1958 Education law of Tunisia defined a national curriculum to be
taught
at all
levels, elementary
and
secondary.
The fact that the
government
decided on a
bilingual
curriculum
automatically disqualified al-Zaytuna
and
led to its
closing
since
teaching
there was done in Arabic. Cf.
Lelong,
71-2.
148
For additional details on education
policies
in
Morocco,
consult Salah-
Dine
Hammoud,
"The Education
Challenge
in
King
Hassan's
Morocco,"
The
Maghreb Review, 25,
1-2
(2000),
46-64.
267
MONIQUE
C. CARDINAL
a classical
system
of education.
Everyone,
even scholars of the older
institutions,
was
persuaded
that the classical texts and
system
of
education were
responsible
for
society's
"backwardness"
(as
compared
to the
technological, military
and economic success of
Europe).
The aim of education
policy
was to
promote
economic
growth
and
human
development through
modern education.
Thus,
the
general
abandonment of the classical tradition has been a direct result of
state
policy.
A
unified,
national
programme
of
elementary
and
secondary
education
designed by
the state was
geared
to
promoting
reading, writing
and arithmetic at the
elementary levels,
and the
sciences and technical
training
at the
higher
levels. In the national
programme,
the entire
spectrum
of the
Shari'a
sciences was com-
pressed
into a
single
course on
religion,
whose aims were limited to
the memorization and
analysis
of selected
chapters
of the
Qur'an
and
Prophetic traditions,
the basic
precepts
for
worship (fiqh
al-
'ibdddt)
and some
aspects
of Islamic substantive law.149 As for the
SharT'a
high
schools
today-e.g.,
at
al-Qarawiyyin,
al-Azhar and
elsewhere-150 courses in the classical
disciplines
are
offered,
but the
national
programme
and textbooks
designed by
the
Ministry
of
Education remain the core curriculum and must be
taught
as
stipulated by
law. As a
result,
Shari'a
students have a double
load,
and
only strongly
motivated students attend these schools. At the
end of
high school,
all students
undergo
the same evaluation
process.
A student's total score on the baccalaureate examination determines
what
discipline
he/she can
study
at
university.151
Students with
top
scores enter
medicine,
pharmacology, dentistry,
information tech-
nology
and
engineering;
lower scores lead to a
degree
in
law,
the
Sharia sciences or the arts.
Today,
the SharTa sciences are considered
to be the domain of the
underachiever,
while a
Shari'a
diploma,
generally speaking,
does not lead to a lucrative career.
149 Most
high
school textbooks on
religion
also contain a succinct
chapter
on the sources of
legislation
(usul
al-tashri), which,
in
fact,
is a brief introduction
to Islamic
legal theory,
modified to reflect the modern
reality
of state
legislation.
This is the case in
Syrian
textbooks. As for Moroccan
high
school
textbooks,
the classical
term,
usul
al-fiqh,
has been
preserved.
150 The network of Shari'a
high
schools in the Arab world
(al-madrasa
al-
'atiqa; al-thanawiyya al-shar'iyya)
merits an
independent study.
151 In certain
countries,
the score in
religion (al-diyana)
is deducted from a
student's total score before
determining
which
faculty
he/she can
register
in.
Therefore, performance
in
religion
has no effect on a student's academic
future,
and is thus trivialized
by
the evaluation
process.
268
Why study
the classics of Islamic law? In
practical
terms,
the
state,
the
major
funder of education and
employer,
does not need
Islamic law
experts
because the entire
legal system
has been
revamped-itself
a state decision aimed at
consolidating
its
power-
and founded on Western substantive
laws,
courts and
procedures.
At the
beginning
of the 20th
century,
faculties of law were founded
and
expanded
to train the
professionals
needed to run the new
legal system. Eventually
the administration of
justice passed
into
the hands of law
professionals.
The
practice
of law
changed, and,
consequently, legal
education was redefined
along
the lines of law
curricula and
textbooks,
which
permeated
all institutions that
taught
law. Our
analysis
of modern usuli textbooks shows the
devastating
effect that the
importation
of Western law had on the
integrity
of
Islamic
legal theory
as a
discipline.
Nonetheless,
certain
states,
some more than
others,
have made
efforts to
keep
the Islamic
legal
tradition alive. In
1954,
a Shari'a
Faculty
was established at Damascus
University (even though
after
1947
jurists
trained
exclusively
in Islamic law could no
longer
become
judges). InJordan, Egypt
and
Morocco,
Sharfa
graduates
can train
as
judges.
A mixed law curriculum introduced at al-Azhar and al-
Qarawiyyin
allows their
graduates
to
compete
with law
faculty
students,
although
in Morocco
advocacy
is still reserved for law
students. The
teaching
of Western law took
away
from time devoted
to Islamic law at these two
institutions,
but efforts were made to
provide
advanced
training
in the Islamic sciences: the al-Sharfa al-
isldmiyya programme
was reintroduced to the al-Sharfa
wa'l-qanun
Faculty
of
al-Azhar, and,
in
Morocco,
a
higher
institute of Islamic
sciences was created in 1964 in
Rabat,
Ddr al-hadith
al-hasaniyya,
one
year
after the curriculum at
al-Qarawiyyin
had
incorporated
Western substantive law. In
addition,
the
teaching
of the Islamic
sciences in Morocco was
expanded
when a
Department
of Islamic
Studies was
opened
in
every
Moroccan
university
in 1980-1981
(there
are now 14 state-run
universities). Finally,
in
1987, al-Zaytuna
was
granted independent
institutional
status,
moved to new facilities
and was
designated
to train students to teach
religion
in
public
schools. What remains to be seen is if these
changes
will contribute
to a better
knowledge
of the classics and Islamic
legal theory.
So
long
as the mandate of Sharl'a faculties is to
prepare
teachers
to teach
religious
sciences in
elementary
and
secondary
schools or
train
professionals
to work in a
legal system
dominated
by foreign
269
270
MONIQUE
C. CARDINAL
law,
the
disciplines
of Islamic law and
legal theory
will be restricted
to the
very
narrow framework of rote memorization and
relegated
to the
margins
of the mainstream
practice
of the law. To revive
Islamic law and
legal theory,
the mandate of
existing
Shari'a
faculties
must be redefined. And this will
happen only
if
professionals
need
to have
knowledge
of Islamic law and
legal theory
to run the
legal
system
of the nation. This would
require
a
profound change
in
substantive
law, procedure
and the
judiciary
as
they
stand
today.
Appendix
1
Bibliography of Contemporagy
Usi!l1
Textbooks
'Abd
al-'A,
'Abd
al-Hayy
'Azb. Buhith
ft usuil al-fiqh (Cairo:
Matba'at al-
iman, 2001-2).
226
pp.
Usil
al-fiqh al-muyassar (Cairo: n.p., 2000-1).
304
pp.
'Abd
al-Fattaah, Thurayd
Mahmtid.
Nuj(vyat al-qoyds (Cairo: n.p., 2002;
1996, 1st
ed.).
196
pp.
'Abd
Rabbih,
Muhammad al-Sa'id 'Au-1.
Buhtithfiz'l-adilla
al
mukhtalafft-ha&
'inda
al-usfil~yyin (Cairo:
al-Iman li'l-tiba'a, 1980; 1977,
Is'
ed.?).
248
pp.
(Abd
al-Rahman, Jalal
al-Din.
Ghdyat
al-wusiil illi daqdiq 'rlm
al-usil: al-
adilla
al-mukhtalaffithd (Cairo:
al-Nasr
al-dhahabi li'l-tiba'a, 1999; 1979,
1st
ed.?).
417
pp., 16-page
leaflet.
al-'Adawi
Mahmtid
Shawkat,
'Abd
al-Jali- al-Qarnashawi,
Muhammad
Faraj
Salim,
al-Husayni
Ytisuf
al-Shaykh
and
Faraj
al-Sayyid
Faraj.
al-Mijaz,ft
usiil
al-fzqh (Cairo: n.p., 1964).
296
pp.
al-'Alami, 'Abd
al-Hamid. Masdlik al daldla
bayna al-lughawv'y
in
wa'l-usliyyzfn
(Fez: Imprimerie Info-Print, 2000).
116
pp.
al-Buti,
Muhammad Sa'id
Ramaaddn.
UsIl
al-fiq/:
mabdhith al kitdb
wa'l-
sunna
(Damascus:
Damascus
University Press, 1998-9; 1974,
Is
ed.).
319
pp.
al-Damardash, Zaynab
Ibrahim.
Mudhakkira
ft
usi4
al-fiq/ (Cairo: n.p.,
2001-2).
125
pp.
al-Hababi,
Ahmad. Us4l
al-ftqh:
qaw&'id
wa-tatbiqdt (n.p.: n.p., 1993,
3rd
ed.).
199
pp.
Hatimi,
Ramadan
Muhammad
'Id.
Buhith
fi'l-hukm
al-shar'z
wa-aqsdmuhu
'inda
al-usiliyyiTn (Cairo: n.p., 2002).
188
pp.
Jamal
al-Din,
Muhammad Muhammad 'Abd al-Latif.
Us'ilfiqh hanaft:
al-
firqa
al thdlitha
(Cairo: n.p., 1999).
188
pp.
Khabiza,
Muhammad
Ya'qtibi. al-U;sil al-lughaw
yya
ft tafszr al-nusiS
al-
shar'7yya (Fez:
Imprimerie
Info-Print,
1999).
234
pp.
Khalifa, $afiyya
Ahmad. Muhddarat
ft
usid
al-fiqh (Cairo: n.p., n.d.).
106
PP.
Lmbaraki,
Idris al-Za'ri and 'Abd al-Haiamid al-'Alami. Mabddi' al wusil ild
'ilm al-usfil
(Fez:
Matba'at
al-Tilimsani, 2000).
234
pp.
Ma'arik,
$abri Muhammad. 'Awdrid al
ahl(yya
'inda
al-usfliyyzn (Cairo: n.p.,
2002; 1988;
1981 Ist
ed., 475pp.).
292
pp.
Muhidardtfi usi4l
al-ftqh
al-hanafi
(Cairo: n.p., 2000).
247
pp.
al-Sharbini, Turkiyya Mustaf-.
Mabkhith
ft
'rlm
usiil
al-fiqh (Cairo: n.p.,
2001-2).
161
pp.
al-Shaykh,
'Abd al-Fattah
Husayni.
Buhathft usul
al-fiqh (Cairo:
Dar
al-
ittihad al-'arabi
li'1-tibd'a.
1986.)
336
pp.
Dirdstft
usii1
al-fiqh (Cairo:
Dar
al-ittihad
al-'arabi
li'l-tiba'a, 1995,
1973,
IS'ed.). 264,
1-40
pp.
Taha, IIamdi
Subh.
Buhuth usllyya ft'l-mantuq
wa'l
majhd-m
wa'l-amr wa'l-
nahT
wa'l-'umdm
wa'1-khusis
(Cairo: n.p., n.d.).
302
pp.
271
272
MONIQUE
C. CARDINAL
* al
Qawl al-mubfn
fi'1-mujmal
wa'1-mubfn 'inda
al-usil4yfin (Cairo:
Dar
al-nahda
al-'arabiyya, n.d.). 13-160, 3-36, 51-87,
1-65
pp.
'Umar, Diyab
Salim Muhammad.
'Iqd
al-jumdn ft
anwd' al
bayan (Cairo:
n.p., 1995).
180
pp.
*
Buhithft
us-l
alfiqh li'l-hanafiyya:
al-sana
al-thdn'yya
(Cairo: n.p., 2002).
225
pp.
Buhiuthfi
usal
al-fiqh li'l-hanafiyya:
al sana al-tlhdlitha
(Cairo: n.p., 1995).
151,
1-32
pp.
*-.
Buhithfi
usul
al-fiqh
li'l-hanafiyya:
al-sana
al-rWbi'a
(Cairo: n.p., 1997).
140
pp.
Dawr
huraffal-'atffl
istinbdt
al-ahkdm min masadirihd al-shar' yya
(Cairo:
Dar
al-huda li'l-tiba'a
1988).
216
pp.
Dirdsdt
ft usidl
al-fiqh (Cairo:
Matba'at
al-ikhwa
al-ashiqqa', 1993).
181
Pp.
Zahran, 'Isa
'Ulaywa.
al-Muntakhabfl usiil
al-fiqh (Cairo: n.p., 1998-9).
387
PP.
Zaydan,
'Abd
al-Karim.
al-
Wajfzfi
usil
al-fiqh (Beirut:
Mu'assasat
al-risala,
1998; 1976).
435
pp.
al-Zuhayli
Muhammad Mustafa.
Usiil
al-ftqh
al-isldmi
(Damascus:
Damas-
cus
University Press, 1992-3; 1973, 1st
ed.).
435
pp.
al-Zuhayli,
Wahba. Ustl
al-fiqh
al
is1dmf,
2 vols.
(Damascus:
Dar al-fikr,
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1230
pp.
al- Wasfi- usu1 al-fiqh
al'
ildmn,
2 vols.
(Damascus:
Damascus
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Press, 1992-3; 1997-8; 1969, 2nd
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Vol.
1,
685
pp.
Vol.
2,
327
pp.

Islamic Legal Teory

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Islamic Legal Theory Curriculum: Are the Classics Taught Today?

Author(s): Monique C. Cardinal

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