Eine Islamische Rechtsphilosophie? Herausforderungen, Problemfelder und Lösungsvorschläge

Abstract

This article presents the internal structure of Islamic law and legal theory. Following the discourses of scholars since the 20th century, concepts of Islamic legal theory are increasingly coming into focus in order to find new ways and methods in the field of Islamic normative teaching that are able to accept the changing circumstances of modernity. These include, in particular, iǧtihād, the goals of the Sharia (maqāṣid aššarīʿa), or Islamic minority law (fiqh al-aqallīyāt). Modern Islamic legal theoretical approaches have in common the lack of systematic and legal-philosophical reflections. These can be found in part even in the pre-modern literature. There, topics of legal philosophy were discussed according to the internal structure of the so-called uṣūl al-fiqh (Islamic legal methodology and theory). The focus was on the doctrine of sources and the interpretation of religious legal sources. Only a few scholars deviated from this methodological approach. These include, for example, Abū Zayd ad-Dabūsī (d. 430/ 1039) from Samarkand. He located and systematized religious law within a rationalist epistemology and legal theory. Further, Ibn Rušd (d. 595/1198) looked for legal philosophical foundations in Aristotle’s philosophy. How can these theories be located in the realm of philosophy of law? How can Muslim legal theories make an innovative contribution with regard to ethics and, moreover, to general questions of legal philosophy? How can concepts of legal philosophy contribute to Islamic law? The article will deal with these and related questions.