The Re-specification of Islamic Legal Normativity: A Praxeological Inquiry into Judicial Reasoning

We begin from the hypothesis that, from the late 18th century up until the turn of the 21st century, a historical transformation unfolded that progressively re-specified legal normativity. At different tempos across jurisdictions and legal domains, this change redefined the conditions under which norms, institutions, authorities, and forms of reasoning came to count as law. It materialized in legal systems grounded in a positivist conception of law, organized around hierarchical judicial institutions featuring appellate review, embedded in states that had themselves become juridical entities, and supported by norms whose formulation, identification, and citation came to be structured by the paradigms of code and judicial precedent. Although global in scope, this process followed locally situated, differentiated, and context-specific trajectories. Yet it was total in its implications, insofar as no normative order—whether customary, moral, or religious—remained untouched, even though the ways in which these normative orders were accommodated within the emerging legal configuration varied considerably. We seek to confront this hypothesis with empirical inquiry. Consistent with our praxeological approach to legal practice, we argue that the core of legal action lies in the practical reasoning through which judges—but equally lawyers, notaries, prosecutors, forensic experts, and other participants in legal proceedings—constitute the legal intelligibility of factual circumstances by relating them to one or more legal norms. We shall proceed through intra-regional, cross-regional, and diachronic analysis that are based on court materials drawn from Indonesia (Banten court register, Priesterraad, Pengadilan Agama), Turkey (sicillat of Diyarbakır, Şeriat mahkemeleri, Republican courts), Palestine (sijillāt of Jerusalem, Mandate courts, Israeli sharīʿa courts), and Morocco (nawāzil, Recueil de jurisprudence chérifienne, maḥkama ibtidā’iyya).