(A2-12) Maxim Literature in Islamic Law: The Creation of Norms between Theological-Epistemological and Legal-Pragmatic Demands

The project deals with an almost unexplored genre in the literature of Islamic law which is concerned with the expression of legal ‘maxims’ (qawa’id). The research project centres on the question as to what relationship this ‘maxim literature’ has to Islamic legal theory (usul al-fiqh). The working hypothesis here is the assumption that maxim literature emerged as a second, discrete legal meta-discourse in addition to legal theory, and that a constellation of tension between theological-epistemological and legal-pragmatic demands on the formation of law becomes palpable in the parallelism of these two discourses.

Legal theory reflects law primarily in terms of its religious legitimation in which the paradigm is framed that law has to be deduced from the revelatory texts, and corresponding exegetical techniques are developed. This legal theory, however, exerts relatively little influence on the factual development of norms, which may be explained, among other things, by the fact that their text exegetical approach barely meets the need for an extensive and systematic formation of law.

From the 10th century onwards, a discrete legal meta-discourse arose in the form of maxim literature which reflected law in a much more legal-pragmatic light and, in doing so, appeared to elude the theological-epistemological posits of legal theory to a certain degree: maxim literature addresses the factually established norms and attempts to systemise this material and to condense it into a structure as coherent and legally manageable as possible.

Should this appraisal of the working hypothesis concerning maxim literature prove true, then a differentiation of law-related reflection into different discourses took place through the development of this genre, which – in a relative sense – can be distinguished as ‘theological’ and ‘legal’. This finding would help us define the relationship of religion and law in historical Islam more precisely and, consequently, could serve to critically examine the established notion of a lack of differentiation between these two spheres in pre-modern societies.

The Project is part of interconnecting platform E Differentiation and De-Differentiation and coordinated project group The liquefaction and solidification of normativity.

Subproject: Sharia institutions in Europe: Islamic mediation and arbitration in Great Britain (Yvonne Prief)

In Great Britain, sharia councils have been in existence since the 1980s – institutions in which Islamic scholars act as mediators arbitrating private-law disputes between Muslims. In accordance with the 1996 Arbitration Act, the Muslim Arbitration Tribunal has been conducting officially recognised arbitration procedures since 2007. The qualified specialist Muslim mediation available is continuing to increase.

Scientifically, the background, practice and consequences of establishing the above institutions has been dealt with rather fragmentarily to date. This is where the present work starts off. The framework of the state law will be examined, as will be the Islamic legal principles drawn on. The question as to factual legal pluralism arises. This work is to assess the advantages and problems of the institutions and of the applied mediation mechanisms, and is to resolve whether they might have a model function in Europe and specifically for Germany. In addition to analysing technical literature and press accounts, the work draws on the results of empirical research (qualitative interviews, participant observation).