Introduction: the study of legal canons (Qawa id fiqhiyya)

Islamic legal canons are interpretive principles that represent varied conceptions of Islamic law and its values, as they developed over time and space. Scholars of Islamic law — both me­dieval and modern — have typically defined these legal canons narrowly, as general principles governing many particular cases, and used to derive related Islamic legal rulings.¹ I consider this definition narrow because it does not take into account the extratextual origins of or presuppositions behind many legal canons, or the ways in which some canons operate outside of the textual confines of Islamic law (qua legal rulings) and instead help structure its system.

Having emerged at the start of Islam’s history in the seventh century, Islamic legal canons have played a major role in the construction of Islamic law, broadly construed, ever since.² The canons come from both the classical enumeration of four foundational sources (Qur an, Sunna, consensus and reasoning) and from juristic and judicial practices addressing local disputes, responding to political authority and reflecting social-cultural norms. Throughout Islam’s history, judges and jurists have used legal canons not only to restate Islamic law, but to construct it. In the process, they deposited into the corpus of canons their ideas of valid interpretive and procedural principles, social-moral values, and the scope of their own power vis-à-vis other institutional actors.

Studying legal canons may well be essential to understanding Islamic law itself because the canons offer a wide-angled lens through which scholars can examine the history of Islamic law in terms of substance and procedure, textual and contextual bases for the law, and hidden values governing the law and its institutions. This lens can also bring into focus the understudied laws, procedures and institutional actors who regularly deployed legal canons to shape Islamic law, historically. That focus can in turn sharpen the conventional image of textual origins of Islamic law to reveal the contours of its extratextual bases. Legal canons spotlight an undeniable degree ofjudicial discretion, interpretive diversity and legal change permeating Islamic law. They rep­resent key tools by which jurists argued with respect to notions of equity, necessity or rational presumptions to produce or justify novel rulings that changed over time, often for discoverable social-institutional reasons to the legal historian or comparative lawyer. All told, approaching Islamic law with an eye on the role that legal canons played in constructing it can help jurists and legal historians chart a fuller and more textured picture of Islamic law.

Enterprising jurists in the Muslim world have taken up this study in recent decades to some degree. But they also complain that attempts to define and classify Islamic legal canons have not been precise or comprehensive — to the detriment of the field.³ I too have com­plained of the problem with respect not only to internal discussions of Islamic law by the ju­rists, but also to external arguments among historians and lawyers.⁴ I did not seek to remedy the lack underlying my complaint when first made. I seek to remedy it now.

This essay explores the types and functions of legal canons in the construction and inter­pretation of Islamic law, historically. It first examines the textual and other sources of legal canons. It next presents a comprehensive rubric — drawing on classical Islamic categories and modern American theories of interpretation — that attempts to outline what I have identified as five major categories of Islamic legal canons. It concludes with ideas for further study of this emerging field in areas of legal history, legal theory and comparative law.

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