2013 Volume 48 Pages 37-55
The age of taqlīd, which began around the twelfth century, has been characterized by modern scholars of Islamic law as being rigid and having uncreative legal practices. However, despite the passive name of “taqlīd” (imitation), this age produced new methodologies and notions for creative legal interpretation. Although the “qawā‘id” (legal principles, sg. qā‘ida) represent these new notions, its specific function in legal practice has never been fully examined. In this paper, I will examine five fatwās (legal opinions) in which the qawā‘id are applied so as to clarify how they work in legal decisions.Not only these fatwās illustrate how Muslim jurists use the qawā‘id as a vehicle for legal change, but also they interpret the law with restraint and never abuse it. When Muslim jurists can not find a reasonable solution under the normal rules, they sometimes make a decision according to the qawā‘id such as “attaining benefit (maṣlaḥa),” “averting harm” and “blocking means.” In these cases, Muslim jurists consciously exercise discretion which is legitimated by the qawā‘id and constituted a part of Islamic law in the age of taqlīd. Moreover, as the qawā‘id reflect the goals and purposes of Islamic law (maqāṣid al-sharī‘a), they work as an instrument for securing them in legal practice.The qawā‘id and the conventional uṣūl al-fiqh (Islamic legal theory), which is rich with a distinctive methodology dominated by the literalist tradition, have different approaches to interpretation, but they function harmoniously in practice. It is up to the Muslim jurist to decide how they are used together in an integrated way in a concrete case. Islamic law has been developed in the age of taqlīd to accommodate the diversity of reality so as not to lose its relevance to the practice.
