Formal Rationality in Islamic Law and the Common Law

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Cleveland State Law Review


Rationality in a legal system suggests a consistent set of legal propositions as well as methods for modifying, limiting, and expanding the laws which are governed by some type of logical apparatus. It is a desirable characteristic because it furthers one of the primary ends of a legal system: It facilitates social interaction by enabling members of society to calculate the consequences of their conduct. It is not an easy concept to define, however. Different legal systems may be termed rational in different ways. A judge who avoids existing legal rules and appeals to a sense of justice or morality to solve the problem of a particular case may promote a rational legal system just as much as a judge who follows existing legal principles to reach a solution. A jurist who accepts certain legal rules without question may be no more rational than the jurist who seeks to limit or extend rules as new cases present themselves. Rationality may take different forms, more or less formal, more or less innovative. These different forms shall be examined to determine the type of rationality which characterizes the Islamic legal system compared with the common law. Max Weber and Lawrence Friedman provide the basic framework. Their classification systems for rational and irrational lawmaking and lawfinding are fine models for legal analysis and are used extensively in this Article. Their categorization of Islamic law, on the other hand, misses the mark. It is my belief, illustrated by an example of legal reasoning in Islamic contract law, that this widely known but little understood system is a prime example of innovative logically formal rationality (as that term will be defined in this Article) at a point in history when few other legal systems could claim the same.

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