ᶜIlm al-ikhtilāf in Modern Western and Muslim Studies of Juristic Disagreement–A Critical Analysis

Abstract

The acknowledgment of juristic disagreement (ᶜilm al-ikhtilāf) as an independent field of Islamic law by Western historians of Fiqh and Uṣūl is over a century and a half old. Yet, there is still much ambiguity and confusion about this legal subarea, its history, its theories and methods, and its place in the emergence and development of Islamic law. This paper provides a critical reading of modern Western studies of ᶜilm al-ikhtilāf. It analyzes the ways in which Western scholars have conceived of this sub-science and visits key unresolved issues with a focus on the conceptual and methodological undertaking of ᶜilm al-ikhtilāf. Through its critical reading of modern Western studies of ᶜilm al-ikhtilāf, this paper mends two gaps in the examined scholarship: the conceptual confusion of the concepts of ‘ikhtilāf’ and ‘khilāf’ on the one hand, and the confusion of the genres of “ikhtilāf fiqhī” (juristic disagreement) and “jadal fiqhī” (juristic dialectics) on the other. The methodology employed in this study comprises a comprehensive and interdisciplinary approach, which bridges the realms of pre-modern and modern sources. It hinges on a meticulous analysis of both Muslim and Western studies of Islamic law, deliberately interweaving these two dimensions to provide a more holistic and nuanced perspective on the questions undertaken within this research. After close examination, it is observed that key distinctions made with regard to the science of ᶜilm al-ikhtilāf, such as between the concepts of ‘khilāf’ and ‘ikhtilāf’, are a modern invention that has no lexical precedent. According to this study, distinction is to be made between Fiqh-based, practical disagreements and Uṣūl-based, theoretical disagreements. This study contributes the first source reading of Western scholarship on the science of juristic disagreement. In addition, classifying ᶜilm al-ikhtilāf in terms of practical (Fiqh-based) and theoretical (Uṣūl-based) studies is an original reading.