Necessity, Legal Reasoning, and Value in the Islamic Legal Tradition: The Case of the Starving Person

Abstract

In this article, I examine juristic discourses from the fifth/eleventh through tenth/sixteenth centuries on the hypothetical case of a starving person taking another’s food or property across four Sunni schools of law. Examination of these juristic discourses provides insight into an active, creative debate about the ethical parameters of the law, and how law and ethics interact. It also provides insight into how jurists engaged in and debated legal methodology and its application to extreme (and often hard) cases. I argue that it was particularly through such hypotheticals of exceptional and hard cases that jurists explored legality, the foundations and limits of the law, and how far the law can respond to fact patterns and lived experience while remaining internally cohesive. This study thus contributes to our understanding of the history of Islamic law by showing that it is in these factually minimal, yet hard hypothetical cases that the jurists carefully articulated their legal process and interrogated the internal ordering and coherence of the legal system.