Creativity in continuity: legal treatises (al-rasāʾil al-fiqhiyya) in Islamic law

Abstract

Abstract This article explores how legal treatises (rasāʾil) were essential sites for the development and expansion of Islamic legal schools’ (madhāhib) positions. The rasāʾil, along with legal dicta (fatāwā)—besides legal commentaries (shurūḥ) and manuals (mutūn)—were among the prime loci where jurists contended with rapid social, political, and economic changes. Although these legal treatises were written to address specific sociolegal issues, I argue that the treatise—as a separate genre—provided a creative space for jurists to reaffirm, restate, or advance a new opinion in the school. These legal treatises were carefully considered and extensively referenced in the authoritative works of the school for their updated legal positions, practical utility for judges in courts, and relevance for official policy purposes. To demonstrate this dynamic, I present a close reading of two legal treatises by Maḥmūd Efendī al-Ḥamzāwī (d. 1887), a key Ḥanafī authority and judge, and the muftī of Damascus (1867–1887). The first covers the issue of criminal law procedures in Islamic/Ottoman courts and the second addresses the topic of hunting with rifles. Both treatises expanded the legal positions of the Ḥanafī school by incorporating new justifications, qualifications, and information. They offer an essential perspective on the status of this genre of legal writing through an exposition of a range of emerging issues in the late nineteenth century.