Epistemic and Social Bases for Islamic Jurisprudence

In his account of the origins of Islamic legal schools, Wael Hallaq makes a strong case that the root of any authoritative doctrine was the knowledge of the law possessed — or allegedly possessed — by a particular legal scholar.  Hallaq observes that the “eponyms” of a given school were perceived by later generations to possess “mastery of legal theory, Qur’anic exegesis, hadith and its criticism, legal language,” and so forth (Hallaq 157). These figures were constructs, coalescences of the expertise of previous and subsequent generations, in whose person the methodology and principles of an entire legal school were thought to rest.  In spite of this fact, it remains true that in the period of personal school — when the eponymous theorists themselves were operating — law was principally a matter of learning and knowledge, in the various fields described in the above quotation. Whether with regard to an individual historical jurist, or with reference to the eponymous “founder” of a school, “it was in the persons of individual jurists that [legal] authority resided,” and thus Islamic law itself had an epistemic ground, rather than a political, social, or religious one (Hallaq 165).

Intentionally or not, Masud’s paean to progressive legal development complicates this portrait.  He observes, for instance, that “the material source of Islamic law, especially about family relations, is the pre-Islamic social customs” (Masud 85).  Thus, the established body of Islamic jurisprudence should be studied and reinterpreted principally with reference to social context (87). Jurisprudence developed and continues to develop as a result of social change; the authority of the doctrines of various schools of jurisprudence rests solely on their utility, a fact which justifies “pushing for the acceptance of whatever is socially practical and useful” (89).

The balance of these two claims raises several compelling questions.  Most significantly, if Hallaq’s account of the various degrees of authority attributed to the founders of schools — Hadith and Quran, legal theory and language, et cetera — is accurate, is the straightforwardly social-contextual account of Masud undermined?  Or would Masud make the critique at a more fundamental level, and argue that the moral doctrines of Qur’an and hadith themselves are entirely socially conditioned, and hence admit of development and indeed contradiction? Hallaq defends the thesis that, in a considerable respect, Islamic jurisprudence had its grounding in the expertise of a given individual, and in the value of his interpretations as epistemic claims.  Where is the balance to be struck between admitting development in legal theory, and respecting the foundational truth-claims of Islam and its jurists?