Dichotomy of Idealism and Realism: Islamic Legal Tradition between Modern and Postmodern Discourses

Abstract

The article introduces four major approaches and stages for the study of the history of Islamic law namely, (1) premodern Islamic legal tradition, (2) modern shari‘ah-inspired legal tradition, (3) modern academic discourses, and (4) postmodern academic discourses. Focusing on modern and postmodern Islamic legal discourses the article argues that in Orientalist discourse Islamic legal history has been cast in a dichotomy of idealism and realism with regard to both positive law (fiqh or Islamic law) and legal theory (usul al-fiqh). Reviewing the main points of this dichotomy, it is argued that Islamic law and legal theory have always been located in the real world and in specific social contexts. It is further argued that legal theory was always used in the development of positive law and therefore conceived prior to the development of positive law. However, it has been established through credible research that legal theory did not come in codified or single book form until after the positive law was developed. Arguments in the article are supported by discussion of five major points of contention in the dichotomy of idealism and realism viz. (a) foreign elements in Islamic law; (b) the right to legislate and double administration of justice; (c) siyasah shar‘iyyah; (d) codification; and (e) Islamic legal theory and its relevance to positive law.