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28 Islamic L. & Soc'y 1 (2021)

handle is hein.journals/islamls28 and id is 1 raw text is: ISLAMIC LAW AND SOCIETY 28 (2021) 1-31 Islamic Law and Society BRILL brill.com/ils Why Study Usul al-Figh?: The Problem of Taglid and Tough Cases in 4th-5th /ioth-uth Century Iraq YoucefL. Soufi Postdoctoral Fellow, Institute of Islamic Studies, University of Toronto, Toronto, Ontario, Canada youcefsouf@utoronto.ca Abstract The function of usul al-fiqh (legal theory) within classical Islamic law has been the object of protracted debate. Based on the writings of Abu Ishaq al-Shirazi (d.476/1o83), I propose that usul al-fiqh served two pedagogical purposes within the Iraqi legal community of the 4th/ioth and 5th/uth centuries: first, to avoid tagld, defined as the subscription to a position without evidence; and second, to provide jurists with tools to assess the validity of a proof when they were confused about its merits. My analysis sheds light on usul al-flqh's role in providing epistemological foundations for juristic reasoning. It also reveals that practical engagement on disputed legal matters (mas'il al-khilaf) prevailed over usul al-fiqh in the training of jurists. The consequence: usul al-fiqh was a methodology of last resort. Keywords usul al-fiqh - tagld - jtihad - mas'il al-khilaf - fqh - al-ShirazI In a September 1999 conference on Islamic legal theory, held in Alta, Utah, nineteen Islamic legal studies scholars gathered at a roundtable to discuss a series of historical questions about usul al-figh (legal theory).1 The historians 1 The Alta conference participants use the term legal theory more or less synonymously with usul al-fiqh. In his introduction to the edited volume of the Alta conference papers, Bernard Weiss states: Although it would be rash to suppose that usul al-fiqh subsumes everything that may be regarded as Muslim legal theory in the broadest possible sense of © KONINKLIJKE BRILL NV, LEIDEN, 2021 1 DOI:10.1163/15685195-BJA10006

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