An Outline of the Historical Evolution of Qawā‘id Literature in Islamic Law

Abstract

The legal rules of each legal system reflect their own nature and primary characteristics in both quantity and quality. Since they comprise the main structure of the system, the study of these rules, therefore, gives an idea about the mechanism of the system as a whole. An investigation of the principles behind these legal rules, which represent dominant features of several rules is a further step and gives an opportunity to understand the common points of the particular cases. These principles have different essences and historical backgrounds in every legal surrounding. The settled principles of Islamic law (al-qawā‘id al-fiqhiyyah) which reflect the general characteristics of rules, were used in legal corpuses from the early ages and developed at a later stage as an independent subgenre in Islamic law. Not only the four Sunni schools of law, but also Shi‘i jurists have made a considerable contribution to the development of the literature in the course of time. In the Muslim world, there are several academic works on the subject such as critical editions, theoretical studies of the genre, and the investigations and applications of certain qawā‘id in legal corpuses. Nevertheless, this significant subject of Islamic law has so far found little attention among the Western academia. This paper, aims to make a small contribution to this significant component of Islamic law. It is concentrating on al-qawā‘id alfiqhiyyah, not al-qawā‘id al-usūliyyah (hermeneutic principles). After dealing with the concept of qawā‘id and its importance in Islamic law, the paper presents a historical overview of the development of qawā‘id literature in four Sunni schools of law. The evolution of the genre is examined in three periods: the formative period second/eighth–fourth/tenth centuries), the self-contained compilation period (fourth/tenth–tenth/sixteenth centuries), and the post-compilation period (tenth/sixteenth– thirteenth/nineteenth centuries).The paper concludes with a list of traditional and modern qawā‘id works.