So, what have we learned?

From the material we have presented here, both of pre-national and national laws, and both of the Sunni and Shi'i traditions, there are four conclusions one may make with reasonable confidence.

The first conclusion concerns the medieval Sunni tradition. The discursive legal space (in fiqh) that is occupied by conflicting-cum-equal arguments is larger than legal theorists, such as Baydawi and Isnawi (in usul al-fiqh), have covered. Medieval usul theorists think that true conflict among equal arguments is limited to Sunnah and qiyds. This is where a jurist has to work either to eliminate the equality or the conflict of the arguments. By showing that one report (hadith) or one analogy-based argument is superior to another, the equality is eliminated. By reconciling one with the other, the conflict is eliminated. In fiqh practice, every evaluation of conflicting arguments follows the same pattern. When two arguments seem to be opposed in the conclusions to which each point, either their equality or conflict must be eliminated. The Sunni legal theory of evaluating arguments provides a point of convergence and connection (a motherboard of sorts) for the rest of Islamic legal reasoning that attends to legal argument.

Second, while Shi'i juristic reasoning seems to differ significantly from its Sunni coun­terpart (e.g. the presence of tahsin/taqbih arguments and the absence, in theory, of qiyas argu­ments), something of the same picture is found as to how conflicting and equal arguments are addressed, especially when it comes to the negation of ‘equality’ among arguments. Since qiyas is either ignored or considered not authoritative, conflict in reports (akhbdr) is the focus of usiil treatments of conflicting, equal arguments, at least since al-'Allama al-Hilli (d. 726/1325). In practice, a broad battery of tools is found that assists the jurist to resolve conflicts-in-argument that may lead to legal indecisiveness.

The third point to make is that modern laws in the Middle East have inherited some­thing from the medieval tradition but also developed novel principles and practices. Chief among the latter is a new understanding of ‘abrogation’ as a manifestation of law-making bodies’ modification of their early reasoning and laws. This led to new enquiries. Laws, in the modern sense, conflict with one another in their temporal and geographic jurisdiction. The resolution of their conflict does not involve a decision on the relative quality of the arguments behind these laws. The law-making bodies do engage in evaluating the merits of arguments for the laws, but judges and lawyers simply learn how to resolve laws' conflict based on mechanical rules.

The fourth and last conclusion concerns the modern appellate system. The very idea of a higher court in a stable and airtight hierarchy is a modern innovation. It does half the work, if not all of it, in resolving how to evaluate conflicting arguments. The superior argument today is underpinned by a political decision, which in some cases comes down to a military decision.

Notes

1 Jamal al-Din al-Isnawi (d. 772/1370), Nihayat al-Sulfi Sharh Minhaj al-Usul, ed.

2 Sayf al-Din al-Amidi (d. 623/1233), Al-Ihkam fi Usul al-Ahkam, ed. 'Abd al-Razzaq ‘Afifi, vol. 4 (Riyadh: Dar al-Sumayghi, 2003), 291.

3 Immanuel Kant's antinomies of reason.

4 Qur'an, 62:9.

5 Zayn al-Din b. Ali al-'Amili (al-Shahid al-Thani = the Second Martyr) (d. 966/1558), Rasa’il al-Shahid al-Thani, vol. 1 (Qumm, Iran: Markaz al-Abhath wa-l-Dirasat al-Islamiyya, 1999), 175.

6 Ibid., vol. 1, 197, 204.

7 Ibid., vol. 1, 171-250.

8 Ibid., vol. 1, 176-7.

9 Jamal al-Din Miqdad b. Abdullah al-Suyuri (d. 826/1423), Al-Tanqih al-Ra’i' li-Mukhtasar al-Shar’i' (a commentary on al-'Allama al-Hilli's Mukhtasar), ed. A. al-Kuhkamri, vol. 1 (Qumm, Iran, n.p., n.d.), 8-9.

10 Ibid., 7-9.

11 Ibid.

12 Ibid., 10.

13 Hasan Kira, Usul al-Qanun (Introduction to Egyptian Jurisprudence) (Cairo: Dar al-Ma'arif, 1958), 503-6.

14 Ibid., 322.

15 Ibid., 503-6.

16 Seyyed Hasan Amin, Remedies for Breach of Contract in Islamic and Iranian Law (London: Royston Limited, 1984), 29.

17 Ibn Rushd (d. 596/1198), Bidayat al-Mujtahid wa-Nihayat al-Muqtasid, 6th edn, vol. 2 (Beirut: Dar al-Ma'arif, 1982), 141.

18 Kira, Usul al-Qanun, 492. Kira's discussion in this context concerns retroactive applications of laws, especially when the new rule is a matter of binding public law, qa'ida amira mutailliqa bil-nizam al- 'am.

19 Ibid., 319.

20 Ibid., 332-3.

21 Ibid., 527-9. An application of these natural law principles appeared in respecting intellectual property and patent before modern Egyptian law attended to them in legislation. Kira, Usul al-Qanun, 530.

22 Ibid., 503-6.

Selected bibliography and further reading

Amidi, Sayf al-Din Ali b. Muhammad al-. Al-Ihkam fi Usul al-Ahkam. Ed. 'Abd al-Razzaq 'Afifi (Ri­yadh: Dar al-Sumayghi, 2003).

'Amili, Zayn al-Din b. Ali al-. al-Shahid al-Thani, or, the Second Martyr. Rasa'il al-Shahid al-Thani (Qumm, Iran: Markaz al-Abhath wa-l-Dirasat al-Islamiyya, 1379/1421/1999).

Kira, Hasan. Usul al-Qanun (Introduction to Egyptian Jurisprudence) (Cairo: Dar al-Ma'arif, 1958).

Isnawi, 'Abd al-Rahim b. Hasan Jamal al-Din al-. Nihayat al-Sulfi Sharh Minhaj al-Usul. Ed. Muham­mad B. Muti'i (Beirut: 'Alam al-Kutub, 1343/1924).

Suyuri, Jamal al-Din Miqdad b. 'Abdullah al-. Al-Tanqih al-RaU li-Mukhtasar al-SharaU. Ed. A. al-Kuhkamri (Qumm, Iran: n.d.).