Improvement or degeneration of fiqh? A critical study of the Majalla

This thesis critically engages with the concept of fiqh and its manifestation in the form of the Majalla. Problems are occasioned when human predicaments are expressed in textual form. Does fiqh fare better in this than law as conceptualized in the West? Does a fiqh paradigm change for the worse when a fiqh text is taken as a code? The Majalla presents an interesting case which is at a critical juncture in history. In the beginning, I critically investigate how fiqh compares with the Western legal paradigm in its conceptual and philosophical underpinnings. I then address the most pertinent question of whether the historical circumstances surrounding the Majalla represent a paradigm shift or a break in the fiqh tradition, arguing that while the former is unwarranted the latter seems to be. In Chapter 4, I survey some of the historical debates that surrounded the making of the Majalla, which provides a more nuanced picture of its substance and form. In Chapter 5, I address the concept of codification and investigate the imperatives motivating that phenomenon. I conclude that the same text, if posited in circumstances where modern understandings of codification are prevalent would presumably manifest a degeneration of fiqh as the imperatives that inhere in a fiqh paradigm are different. Chapters 6-7 address a deeper philosophical comparison of fiqh and law, where I address the notion of a 'gap' and demonstrate how it occurs at two occasions in the fiqh paradigm which affirms the character of fiqh as rooted in discovery rather than performativity. Thereafter, I further explore these notions concluding that legislating a fiqh text like the Majalla confuses the fiqh paradigm by imposing a configuration of roles that is not suited to that paradigm.