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'Origins' of Islamic Law: an Analytical and Critical Study

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'Origins' of Islamic Law: an Analytical and Critical Study Western Scholarship on ‘Origins’ of Islamic Law: An Analytical and Critical Study By Aayesha Rafiq M Phil, Allama Iqbal Open University, Islamabad, 2008 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY In Islamic Studies To FACULTY OF HIGHER STUDIES NATIONAL UNIVERSITY OF MODERN LANGUAGES, ISLAMABAD November, 2013 Aayesha Rafiq, 2013 ii NATIONAL UNIVERSITY OF MODERN LANGUAGES FACULTY OF HIGHER STUDIES THESIS AND DEFENSE APPROVAL FORM The undersigned certify that they have read the following thesis, examined the defense, are satisfied with the overall exam performance, and recommend the thesis to the Faculty of Advanced Integrated Studies & Research for acceptance: Thesis Title: Western Scholarship on ‘Origins’ of Islamic Law: An Analytical and Critical Study Submitted By: Aayesha Rafiq Registration #: 360-PhD/IS/-JAN 09 Name of Student Doctor of Philosophy Degree Name in Full Islamic Studies Name of Discipline Professor Dr. Zia ul Haq Yousafzai ______________________________ Name of Research Supervisor Signature of Research Supervisor Dr. Shazra Munnawer ______________________________ Signature of Dean (FHS) Dean FHS Maj Gen ® Masood Hasan ______________________________ Name of Rector Signature of Rector iii Candidate Declaration Form I Aayesha Rafiq Daughter of Chaudhary Muhammad Rafiq Registration # 360-PD/IS/JAN 09 Discipline: Islamic Studies Candidate of PhD at the National University of Modern Languages do hereby declare that the thesis ‘Western Scholarship on ‘Origins’ of Islamic Law: An Analytical and Critical Study’ Submitted by me in partial fulfillment of PhD degree, is my original work, and has not been submitted or published earlier. I also solemnly declare that it shall not, in future, be submitted by me for obtaining any other degree from this or any other university or institution. I also understand that if evidence of plagiarism is found in my thesis/dissertation at any stage, even after the award of a degree, the work may be cancelled and the degree revoked. Signature of Candidate Aayesha Rafiq Date Name of Candidate iii ABSTRACT Thesis Title: Western Scholarship on ‘Origins’ of Islamic Law: An Analytical And Critical Study Orientalism is an ancient tradition of Western scholarship which portrays Islam, Muslim societies and Arabs in negative manner. Orientalist tradition was extended to Islamic legal scholarship during colonial era. Ground breaking publication of a Hungarian orientalist Ignac Goldziher (d.1921) ‘Introduction to Islamic Theology and Law’ (1910) became the basis of all future writings on this subject. Joseph Schacht (d.1969) a German orientalist carried his work in Goldziher’s footsteps and published ‘Origins of Mohammadan Jurisprudence’ (1950) and ‘An Introduction to Islamic law’ (1964) which laid the foundations of Islamic legal orientalism in academic writings of the Western world. With the advent of orientalist tradition in USA during the Cold War era, leading American universities established Oriental Studies, Near Eastern Languages and Cultures and Middle Eastern Studies departments which worked closely with U.S. State department and Foreign Affairs department to facilitate the government to establish political hegemony over the Middle East and the Muslim world. Two major assumptions put forward in the academic debate by the West on ‘Origins’ of Islamic law were inauthenticity of ḥadịth literature and influence of pre-Islamic non-Arab laws on the development of Islamic law. This dissertation carries out critical analysis of writings of Western scholars during cold war era through post 9/11 era to date, on these two issues. The objective of this research is to study the shift in paradigms, trends, approaches and methodology adopted by Western scholars of 21st century in their writings on Origins of Islamic law and to see how this scholarship is related to European and American political hegemony over the Muslim world. Writings of Harald Motzki, Jonathan Brown, Wael Hallaq and Patricia Crone and a few more are selected to analyze 21st century Western scholarship. Responses, rebuttals and critiques on the assumptions put forward by Western scholars of 20th century are also part of this dissertation. A shift in trend and methodology is observed in 21st century Western scholarship on Islamic law but the essential paradigms for the study remain the same thus putting forth similar results. It is also observed that Western scholarship on Islam is strongly connected with its political hegemony over the Muslim world. Methodologically Western scholarship has shifted from 20th century philological zeitgeist to 21st century social science research but it remains within the orientalist problematique. Thus Islamic law is portrayed as an essentially defective legal system and hadith literature the second primary source of Islamic law remains inauthentic in Western scholarship. However there are scholars who are aware of the fact that they are not to become hostage to biased paradigms and inadvertent commitments to political agendas in order to promote academic honesty. iv Table of Contents Chapter Page TITLE PAGE………………………………………….………………………………… THESIS AND DEFENSE APPROVAL FORM .............................................................. ii CANDIDATE DECLARATION FORM .......................................................................... iii ABSTRACT....................................................................................................................... iv TABLE OF CONTENTS .................................................................................................... v TABLE 1: TRANSLITERATION TABLE: CONSONENTS .......................................... ix Table 2: TRANSLITERATION TABLE: VOWELS & DIPHTHONGS .......................... x ACKNOWLEDGEMENT ................................................................................................. xi DEDICATION .................................................................................................................. xii PREFACE ........................................................................................................................ xiii I INTRODUCTION…………………………………………………………………….............1 Objectives of Research ....................................................................................................... 7 Assumptions/Hypothesis .................................................................................................... 8 Research Questions ............................................................................................................. 9 Limitations ........................................................................................................................ 10 Research Methodology ..................................................................................................... 11 II LITERATURE REVIEW……………………………………………………………….....13 Orientalist Scholarship on Islam During Pre-colonial Era (7th-15th century)……………14 Orientalist Scholarship on Islam during Colonial Era (15th-19th century)………………15 Orientalist Scholarship on Origins of Islamic law During Post-Colonial Era…………….. (20th century onwards)…………………………………………………………………..16 Orientalist Tradition in American Scholarship (Cold War and Contemporary Era) ......... 20 Muslim's Response to Orientalist Writings……………………………………...............22 Review of Literature on Islamic Legal Orientalism .......................................................... 24 Review of Literature on Hadith as a Source of Islamic Law ............................................ 25 v Review Of Literature on Influence of Foreign Laws on Islamic Law…………………..36 III ISLAM & ISLAMIC LAW………………………………………………... ……………42 Islam as Religion .............................................................................................................. 42 Qur’ān ............................................................................................................................... 46 Sunnah (Prophetic Tradition) ............................................................................................ 52 Shar‘iah (Islamic Law) ..................................................................................................... 57 Fiqh & Usul al Fiqh .......................................................................................................... 60 Emergence of Schools of Fiqh .......................................................................................... 63 Theories of Islamic Law ................................................................................................... 67 PART- 1 ON ORIENTALIST TRADITION IV ORIENTALISM: AN ANCIENT TRADITION OF WESTERN SCHOLARSHIP……...73 Islamic Orientalism ........................................................................................................... 73 Orientalist Tradition during Pre-Colonial Era (6th to 15th Century) .................................. 75 Muslim’s Intellectual Achievements in Pre-Colonial Era ............................................... 79 Colonial Era:The Emergence of Systematic Orientalist Tradition (15th to 19th Century) . 82 Post- Colonial Era: Modern Orientalism (20th to 21st Century) ........................................ 84 British and European Orientalist Tradition ....................................................................... 86 Anglo- American Orientalist Tradition ............................................................................. 87 Orientalism in American Scholarship
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