HUMSS - Felicitas Opwis

The Philosophy of Legal Interpretation: Textualism, Orginalism, Purposivism, and Originalism in Islamic and Constitutional Law

Scholars have described Islamic Law in a variety of ways, ranging from denying that Islamic Law is Law at all, to understanding it as a product of colonialism, to seeing it as a process of purposeful practical reasoning that develops rulings through analogical reasoning. This paper adds to the debate by proposing to understand Islamic Law, and in particular Islamic legal theory (uṣūl al-fiqh), as Constitutional Law, here with reference to the US Constitution. Despite obvious differences in origin and content, both legal systems share the foundational assumption that all legitimate laws have to be in commensuration with the foundational texts, i.e., the US Constitution and Qurʾān and Ḥadīth. This shared premise gives rise to very similar interpretive frameworks that tackle the challenge of applying the wording of foundational texts to real-world situations. The main theories of US Constitutional law – textualism, originalism, purposivism, and evolutionism – map on interpretive approaches in Islamic Law. Bringing Islamic Law into conversation with Constitutional Law shows their shared legal philosophies characterized by common theories of communication and hermeneutical frameworks.