<p>This dissertation examines the construction of gendered legal subjects in the influential legal works of the eleventh century Ḥanafī jurist, Muḥammad ibn Aḥmad al-Sarakhsī (d. 483 A.H./1090 C.E.). In particular, I explore how gendered subjects are imagined in legal matters pertaining to sexual desire. Through a close reading of several legal cases, I argue that gendered subjects in his legal work al-Mabsūṭ are constructed through an ontological framework that conceptualizes men as active and desiring and women as passive and desirable. This binary construal of gendered nature serves as a hermeneutical given in al-Sarakhsī’s legal argumentation and is produced through a phallocentric epistemology. Al-Sarakhsī’s discussions of desire and sexuality are mediated through the experience of the male body. While the dissertation endeavors to show the centrality of the active/passive binary in al-Sarakhsī’s legal reasoning, it also highlights the dissonances and fissures in the text’s construction of gendered subjects of desire. By tracing the intricacies of al-Sarakhsī’s legal reasoning, I note moments in which the text makes contradictory claims about gender and desire, as well as moments in which al-Sarakhsī must contend with realities that seemingly run up against his ontological framework. These moments in the text draw our attention to al-Sarakhsī’s active attempt at maintaining the coherence of the gendered ontology. I thus argue that the gendered ontology in al-Sarakhsī’s text is a legal fiction that both reflects his assumptions about gendered nature but is also constructed to rationalize legal precedence.</p> / Dissertation

In the 21st century Muslims can be found as minorities in what can be described as secular, democratic western countries. The research presented in this study will trace the process by which this community arrived in Western Europe and in particular Britain. Furthermore, it will explain how the community developed its faith identity within this context by detailing three particular stances they have adopted, namely; assimilation, isolation, integration. The thesis argues that rather than the assumption which exists that applying Traditional Islam causes Muslims to isolate from the indigenous population and form a 'state within a state' it actually gives the religious confidence and identity to integrate within the wider society. The study also focuses on Islamic Law as interpreted by the 'anaf' Law school and highlights in detail the multi-pronged and robust nature of its legal theory and subsequent application. There is an opportunity whilst determining the context to challenge the so-called 'classical' Islam's view of the world, especially the view that all non-Muslim lands are d'r al-'arb. The research details a novel understanding of the classical view and discusses how the state's attitude towards Islam and Muslims determines its territorial ruling. In conclusion, the study has shown that the traditional interpretive model inherently possesses the flexibility, relevance and applicability to take into consideration minority-status of Muslims in Britain adhering to the 'anaf' Law School. This is manifest by the ability this model has to deal with contemporary issues in wide ranging subjects like Medicine, Politics and Finance As a result it facilitates their integration within this secular society whilst remaining true to their faith.

Fiqh, literally 'deep understanding', is the science of religious law in Islam. What does it mean for an Islamic jurist to 'do fiqh'? And how does an engagement with fiqh guide a jurist to produce statements of law for particular social contexts? These are perennial questions in the field of Islamic legal studies. The current thesis offers an answer to these questions from the viewpoint of jurists from the early classical Ḥanafī tradition of Central Asia. The thesis starts with an examination of Central-Asian Ḥanafī works of legal theory to extract the underlying epistemological foundations of this legal tradition. The remainder of the thesis presents a series of investigations into a leading work of legal commentary - the Hidāyah of Burhān al-Dīn 'Alī ibn Abī Bakr al-Marghīnānī (d. 593/1197) - to assess how these epistemological foundations inform the work. These investigations range from a study of the processes by which the legal cases commented on in the work were seen to be authoritative, to a study of the use of rational arguments, dialectical sequences and juristic disagreement in exploring and expositing cases of the law. The thesis also studies points of theory employed in the commentary that reveal how social context was seen to impact on the production of law. The study concludes by suggesting a general theory of Ḥanafī jurisprudence, explaining what it means to 'do fiqh' - presented as a particular form of engagement with the legal cases transmitted from the teaching circle of Abū Ḥanīfah (d. 150/767), the school's eponym - and how this fiqh engagement with Ḥanafī precedent informed the production of legal statements tailored to specific contexts - by the application of a particular filter of legal mechanisms, each of which reflects an understanding of the overarching principle of 'necessity' (ḍarūrah). The study presents a uniquely Ḥanafī legal epistemology which is underpinned by particular notions of authority, rationality and tradition.

In the 21st century Muslims can be found as minorities in what can be described as secular, democratic western countries. The research presented in this study will trace the process by which this community arrived in Western Europe and in particular Britain. Furthermore, it will explain how the community developed its faith identity within this context by detailing three particular stances they have adopted, namely; assimilation, isolation, integration. The thesis argues that rather than the assumption which exists that applying Traditional Islam causes Muslims to isolate from the indigenous population and form a ¿state within a state¿ it actually gives the religious confidence and identity to integrate within the wider society. The study also focuses on Islamic Law as interpreted by the ¿anaf¿ Law school and highlights in detail the multi-pronged and robust nature of its legal theory and subsequent application. There is an opportunity whilst determining the context to challenge the so-called ¿classical¿ Islam¿s view of the world, especially the view that all non-Muslim lands are d¿r al-¿arb. The research details a novel understanding of the classical view and discusses how the state¿s attitude towards Islam and Muslims determines its territorial ruling. In conclusion, the study has shown that the traditional interpretive model inherently possesses the flexibility, relevance and applicability to take into consideration minority-status of Muslims in Britain adhering to the ¿anaf¿ Law School. This is manifest by the ability this model has to deal with contemporary issues in wide ranging subjects like Medicine, Politics and Finance As a result it facilitates their integration within this secular society whilst remaining true to their faith.