LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 93

The development of this branch of fiqh is in many ways related to the general awareness of the ulama over the somewhat piecemeal and fragmented style of the fiqh literature which, somewhat like the Roman juristic writings, is on the whole issue-oriented, and short of theoretical exposition of the governing principles. This is related, in turn, to the fact that fiqh was mainly developed by private jurists who were not acting on behalf of governments and institutions that might have exerted a unifying influence. They wrote often in response to issues as and when encountered, and we consequently note that theoretical abstraction was not a well-developed feature of their works. The legal maxims filled that gap to some extent, and provided a set of general guidelines in an otherwise diverse discipline that combined an impressive variety of schools and influences into its fold.

Islamic jurisprudence is also textualist, as it is guided by the textual injunctions of the Qurʾān and Sunnah. In developing the law, the jurists have shown the tendency to confine the range of their expositions to the given terms of the text. The theoretical generalisation of ideas was generally viewed with caution vis-à-vis the overriding authority of the text, and attention was focused on the correct interpretation of the text, rather than on developing general theories. Questions are being asked to this day whether Islamic law has a constitutional theory, a theory of contract, or a theory of ownership.

It is only in recent times that Muslim scholars began to write concise, yet self-contained, expositions of the law in these areas, as I shall presently explain, but first, I turn to al-ashbāh waʾl-naẓāʾir.

Resemblances and Similitudes (al-Ashbāh waʾl-Naẓāʾir)

This genre of literature emerged in the writings of the ulama well after the formation of the madhāhib. The term evidently originated in the renowned letter of the Caliph ʿUmar al-Khaṭṭāb addressed to judge Abū Mūsā al-Ashʿarī of Baṣra in which the latter was instructed to “ascertain resemblances and similitudes and adduce matters to their likes in giving judgment”. The term al-ashbāh waʾl-naẓāʾir was later chosen by Tāj al-Dīn al-Subkī, who wrote an important work on legal maxims, as the title of that book. Jalāl al-Dīn al-Suyūṭī (d. 911/1505) and Zayn al-ʿābidīn Ibn Nujaym al-Hanafī (d. 970/1563) also wrote works that closely resembled one another, both bearing the title al-ashbāh waʾl-naẓāʾir, they relied mainly