At the Limits of Law: Necessity in Islamic Legal History, Second/Eighth Through Tenth/Sixteenth Centuries

Abstract

This dissertation examines juristic discourses and cases on legal necessity (ḍarūra) in the Islamic legal tradition from the second/eighth through the tenth/sixteenth centuries. It focuses on the construction and negotiation of hypothetical cases and the function of these cases in legal thought. The paradigmatic example of necessity in the Islamic tradition, culled directly from the Qurʾān, is that of a person who suffers from dire hunger and is rendered blameless for his consumption of an ordinarily prohibited food such as carrion or pork. Early jurists discussed this seemingly de minimis instance of necessity and developed it into one of the core hypothetical cases of necessity. My research demonstrates how this case served as the site of intensive legal debate, formed the basis for analogies to new instances of necessity, and provided the foundation for other hypothetical cases. The dissertation examines how jurists systematized and expanded upon the core hypothetical cases and used them as pedagogies of law and as heuristics for negotiating foundational substantive and procedural legal questions.

This work demonstrates that necessity provided rich material for jurists to think with—to explore substantive questions of value as well as questions of legal interpretation and methodology. I show how through their necessity discourses jurists examined the limits of law and the role of the jurist in legal interpretation. They also navigated how to construct and weigh competing interests and claims, formulate liability and compensation rules, construct and prioritize the system of legal rules, and negotiate foundational values through the law. Finally, through necessity the jurists explored the relationship between law and ethics, and between positive law before a human judge and the law of the hereafter. This dissertation thus serves the larger purpose of examining the construction, historical development, and function of paradigmatic cases in Islamic law. It also offers a window into how the jurists negotiated the relationship between stability and rule of law, social demands, and the claim of ethically or divinely informed engagements with human action.