The thesis examines the development of the concept of Ijmāʻ, consensus, in Imāmī-Shīʻī principles of jurisprudence (uṣūl al-fiqh). In the introduction to the thesis there is an analysis of the concept of Ijmāʻ as generally understood in Islamic jurisprudence and a discussion of the approach adopted in the thesis as well as a general outline of the literature involved. The introduction also outlines the background to Imāmī Shīʻī jurisprudence during the time of the presence of the Imāms and the period immediately after the greater occultation of the Twelfth Imām. The main body of the thesis analyses the available major texts written by Imāmī-Shīʻī Uṣūli scholars from the time of al-Shaykh al-Mufid (413/1022) to the end of the nineteenth century with a brief discussion of the views of some recent Imāmī Shīʻī scholars. From the outset a difference of emphasis can be observed between scholars who argue in favour of a major role for reason, such as al-Sharīf al-Murtaḍā (436/1044) and those in favour of a greater reliance on Traditions from the Prophet and the Imāms, which is moderately represented by al-Shaykh al-Ṭūsī (459/1067). The subsequent generations of scholars refined and further defined these concepts. In particular, in opposition to the movement in favour of general adherence to the Traditions, there arose from the proponents of the use of uṣūl al-fiqh a definition which gave much greater scope to the use of reason and the continuing guidance of the Twelfth Imām. The latter proposition reached its final form in Imām-Shīʻī uṣūl al-fiqh at the end of the nineteenth century in Kifayat al-uṣūl by Muḥammad Kāẓim al-Khurāsānī. Finally, there is a brief examination of the work of some recent scholars and a conclusion to the thesis.

The punishments of Islamic criminal law and in particular, the notoriously severe ḥadd punishments, were never systematically justified in classical Islamic jurisprudence (fiqh). However, the fiqh tradition is ripe with debates about ḥadd punishments, and theories of justification, while not fully spelt out, are often implied in the writings of Muslim jurists. In Part I of this thesis, three fiqh strategies for the justification of ḥadd punishments are described and critically evaluated: one that seeks to characterize the ḥadd punishments as divinely ordained, immutable “rights of God” (ch. 1), one that describes the purpose of ḥadd punishments as serving general as well as individual prevention (ch. 2), and one that stresses that to suffer ḥadd is an expiatory act that amends for sins and thus ensures salvation in the Hereafter (ch. 3). The Sunnī legal schools (madhāhib), salient representatives of which are studied in this dissertation, controversially discussed the meaning and purpose of ḥadd punishments in the context of each of these three fiqh discourses. Part II of this thesis proceeds to describe and discuss contemporary Muslim debates about the applicability and justifiability of ḥadd punishments today. While only few Islamic regimes currently implement ḥadd, the topic has a large symbolical importance because it exemplifies the struggle of Muslim thinkers to reconcile Islam with modernity. In a first step, this thesis aims to clarify to what extent contemporary positions echo, attack or simply sidestep classical fiqh positions: how, in other words, the present is connected to the traditional fiqh framework of the past (ch. 4). In a concluding chapter, a number of salient topics of debate in the contemporary ḥadd controversy are analysed within the cultural and political contexts in which they are located (ch. 5). While classical legal doctrines about ḥadd punishments, despite the controversies between the madhāhib, tend to be rigid, emphasizing the immutable character of the criminal law norms found in the Sharīʻah, the periodic calls among contemporary thinkers for the implementation of ḥadd are, it is suggested, largely driven by political agendas.

Thesis advisor: Ali Banuazizi / This thesis is a comparative analysis of the varying approaches by which modern Islamist militancy movements attempt to justify their respective use of violent jihad within Islamic doctrine. This ultimate focus is contextualized by a broader study of the historical role of religion in the development of modern ethical standards for warfare. Justifications for horrific bloodshed and injustice in the Just War traditions of both Christianity and Islam have manifested themselves in the actual military campaigns of the Crusades and jihad respectively. These historical and modern examples demonstrate the precarious complexity of the dual role of religion to both restrict and require warfare in the cause of justice. / Thesis (BA) — Boston College, 2010. / Submitted to: Boston College. College of Arts and Sciences. / Discipline: College Honors Program. / Discipline: Islamic Civilization and Society Honors Program. / Discipline: Islamic Civilization and Society.

This thesis examines the role of tradition and discursive knowledge transmission on the formation of the ‘ulamā’, the learned scholarly class in Islam, and their approach to the articulation of the Islamic disciplines. The basis of this examination is the twelfth/eighteenth century scholar, Aḥmad ibn Muḥammad al-Dardīr, an Egyptian Azharī who wrote highly influential treatises in the disciplines of creedal theology, Mālikī jurisprudence, and taṣawwuf (Sufism). Additionally, he occupied a prominent role in the urban life of Cairo, accredited with several incidents of intercession with the rulers on behalf of the Cairo populace. This thesis argues that a useful framework for evaluating the intellectual contributions of post-classical scholars such as al-Dardīr involves the concept of an Islamic discursive tradition, where al-Dardīr’s specific contributions were aimed towards preserving, upholding, and maintaining the Islamic tradition, including the intellectual “sub-traditions” that came to define it. Chapter 1 provides an introduction to al-Dardīr, the social and intellectual climate of his era, and an overview of his writings. Chapter 2 analyses the educational paradigm that preceded al-Dardīr, and affected his approach to the Islamic disciplines. We then focus our attention to al-Dardīr’s contribution to the Islamic educational paradigm, in the form of taḥqīq (verification). Chapter 3 analyses al-Dardīr’s methodology in the synthesis of the rational and mystical approaches to knowledge located within the Islamic disciplines of creedal theology and Sufism. Chapter 4 analyses al-Dardīr’s to the Mālikī fiqh tradition, specifically his methodology of tarjīḥ (weighing of juristic evidence between different narrations). Chapter 5 examines his societal roles, and the influence of tradition on his relationships with the ruling elite, the ‘ulamā’ class, and the masses. The thesis ends with a conclusion that summarises the results of all of the above.

This essay sheds light on a specific religious reformist within the Islamic tradition. This contemporary reformist is none other than Abd al-Karim Soroush, whose theory on fundamental building blocks within the Islamic tradition, such as revelation and prophethood, has sparked the interests of philosophers, theologians, and scholars of religion in general, and Islamic religious tradition in particular. By conducting a content-based analysis of his own work The Expansion of Prophetic Experience: Essays on Historicity, Contingency and Plurality in Religion the essay aims to a) examine his views on revelation and prophethood, b) explore his theory in relation to Islamic jurisprudence and ethics, and c) investigate any legal and ethical problematizations that his theory poses within the Islamic tradition. In an effort to revive the essence of Islam and reform the approach to the Quran and Islamic tradition, Soroush breaks down prophethood into two components: prophetic mission and prophetic experience. According to Soroush, both the prophetic mission and experience are tied to the era in which Muhammad (peace be upon him) operated. Such a contextual approach entails viewing and interpreting the Quran as a canonized book that reflects Muhammad's intuitive experiences and their continuous interaction with the cultural, social, and economic conditions prevalent during his time. By categorizing different aspects of the Quran into essentialism and accidentialism, Soroush argues that traditional legal and ethical derivations belong to the accidental category, which implies that they should not be viewed as static but rather dynamic and subject to reinterpretation in light of the contemporary context. To consider the traditional interpretation of Islamic jurisprudence and ethics as a secondary aspect in relation to the primary aspect of Islam, namely its essence, and to strip jurisprudence of its centrality and authority has both advantages and disadvantages within the Islamic tradition. The advantage may lie in a more rational and accepting approach towards religious pluralism and women's rights. The disadvantage can manifest in challenges related to Muslim identity formation and the arbitrary definition of essential Islam that his theory may entail.

Islamic Jurisprudence comprises of the laws that govern a Muslims daily life. The Prophet Muhammad explained and practically demonstrated these laws. The jurists studied the Quran and the Prophet's life and they adopted a refined methodology which they used to extract legal rulings and verdicts. This methodology is known as the Principles of Jurisprudence. The jurists expanded on this methodology with some differences among them on the usage and the application of some aspects as acceptable forms of evidence. Eventually, the Muslim world was left with four schools of jurisprudence that are present to this day. There are differences between these schools on some issues but these differences never caused conflict, instead it provided us with a wealth of knowledge. We need to study these schools and its principles together with the objectives and intent of the Shariah and utilize this to find solutions to all new issues that arise. / Religious Studies and Arabic / M. A. (Islamic Studies)

This thesis examines the role that scholarly digests and commentaries played in the formation of legal rules in the Muslim legal institution known as the madhhab. I posit that a shared approach to legal rule-determination, and the respect of juristic precedent that it entails, underlies the jurisprudential processes of all of the four post-classical Sunni madhhabs (the Ḥanafī, Mālikī, Shāfi'ī, and Ḥanbalī), and unites them in a wider ‘madhhab-law tradition’. Taking the Ḥanafī madhhab as a case study, the thesis analyses a commentary written by the late Mamluk jurist Ibn Quṭlūbughā (d. 879/1474) upon the digest of the celebrated Abbasid-era Abū al-Ḥusayn al-Qudūrī (d. 428/1037). In discussing the madhhab's heritage of precedent, Ibn Quṭlūbughā's commentary weaves an intricate tapestry of quotations and references from previous jurists and works, providing us with insight into how author-scholars reacted to, and interacted with, other jurists over space and time. Chapter 1 provides a short introduction to the lives of Qudūrī and Ibn Quṭlūbughā, and the contexts within which they produced their works. Chapter 2 employs both quantitative and qualitative analysis of the commentary, in order to deduce historical and geographical patterns out of which a periodisation of rule-determination in the Ḥanafī madhhab is proposed. In Chapter 3, Ibn Quṭlūbughā's jurisprudential theory of rule-determination is studied, examining both the justifications and the processes employed by jurists in arriving at a legal rule in the Ḥanafī madhhab. Chapter 4 then turns to the craft of commentary itself, analysing over eighty case examples for the logical relationships, rhetorical devices, and legal arguments that inform the actual practice of rule-determination through commentary. A final chapter then summarises the conclusions, and situates them within a broader discussion as to the nature of the madhhab-law tradition.

Islamic Jurisprudence comprises of the laws that govern a Muslims daily life. The Prophet Muhammad explained and practically demonstrated these laws. The jurists studied the Quran and the Prophet's life and they adopted a refined methodology which they used to extract legal rulings and verdicts. This methodology is known as the Principles of Jurisprudence. The jurists expanded on this methodology with some differences among them on the usage and the application of some aspects as acceptable forms of evidence. Eventually, the Muslim world was left with four schools of jurisprudence that are present to this day. There are differences between these schools on some issues but these differences never caused conflict, instead it provided us with a wealth of knowledge. We need to study these schools and its principles together with the objectives and intent of the Shariah and utilize this to find solutions to all new issues that arise. / Religious Studies and Arabic / M. A. (Islamic Studies)

Doctor Legum - LLD / The objective of this doctoral thesis is essentially two-fold: first, it seeks to ascertain whether the rights and freedoms of Muslim women in the contexts of marriage and divorce are adequately protected in terms of Islamic jurisprudence, and secondly, whether any valuable lessons could be learnt in this regard by South Africa based on the specific legal experiences of two (other) African jurisdictions, notably Morocco and Tunisia.

The emergence of the theory of maqāṣid al-sharīʿa as a legal theory, which is a purposive approach to the law in which the main purposes of the law are considered as deriving elements of the legal rulings, has occurred in a particular socio-political and cultural context for the Shīʿa and within a particular epistemological construction. Given the lack of a historical reading of Shīʿī jurisprudence and the limitations of the methodological approaches which have to date been employed, this research applies a holistic approach. “The Bahbahānian paradigm” is identified as the overarching epistemological paradigm in modern and contemporary Shīʿī jurisprudence. The Bahbahanian paradigm was formed during the eighteenth and nineteenth centuries and is arguably characterised as being a combination of Aristotelian epistemologically, formalist methodologically and soft utilitarianism. Within this paradigm in the context of the twentieth century, maqāṣid al-sharīʿa emerged in Shīʿī thought, especially in its systematic and comprehensive theorisation by Muḥammad Taqī al-Mudarrisī - a contemporary Shīʿī scholar. The introduction of the maqāṣid al-sharīʿa approach represents a paradigm shift that departs epistemologically, methodologically and functionally from the Bahbahānian paradigm. Mudarrisī’s maqāṣid al-sharīʿa paradigm is characterized as pragmatic epistemologically, more accessible and dynamic methodologically and employing a virtue ethic. Mudarrisī’s maqāṣid al-sharīʿa reflects the eclipse of the quietist character of the previous paradigm and the ambition of the contemporary Shīʿī religious institution. This ambition comprises a more significant role in the public sphere, which is embodied in the application or renewal of the sharīʿa in reality on one hand, and confronting the systematical secularization of the modern nation-state of the public sphere on the other. Mudarrisī’s version of maqāṣid al-sharīʿa is obligated to challenge three intellectual enterprises; that is, the classical Shīʿī jurisprudential reasoning by embracing hermeneutical tools which are more accessible to religious knowledge; the Sunnī soft utilitarian maqāṣidī approaches by providing virtue ethical jurisprudence; and the secular nation-state by providing a flexible legal system.