Abstract
ABSTRACTWestern scholarship has long associated the visibility of positive law (furū` al-fiqh) texts with medieval Islam’s intellectual decline. Lacking the originality of legal hermeneutics (uṣūl al-fiqh), works of positive law and their favorite literary genres, commentary (sharḥ) and abridgment (mukhtaṣar), have as a result suffered a special neglect within the academy. Rarely has either been addressed as more than stolid, imitative, work of medieval legists. This article seeks to reassess such a narrative of Islamic legal literature. Through a reading of eight commentaries of the classic fourteenth century furū` abridgement, Mukhtaṣar Khalīl, this article explores the ways in which Maliki jurists debated a particularly thorny issue underpinning ritual, body, and society. It will consider three broad questions: (1) How was the status of the body connected to maintaining the health of the community? (2) In what ways did jurists balance contradictory obligations between body, worship, and society? (3) How did the commentary literature of the Mukhtaṣar Khalīl serve to contest, and reinforce, claims to consensus within the Maliki school? By doing so, the study aims to present a more nuanced picture of the dynamism characteristically dismissed of positive law, commentary, and post-formative Maliki legal thought.
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