The role of the Arabic language in istinbāṭ al-ḥukm within the context of Criminal law: a general framework for inquiry into the linguistic categories of uṣūl al-fiqh of the Ḥanafī school of law

Scholars of uṣūl al-fiqh (Islamic Jurisprudence) have classified words (and utterances) into linguistic categories to properly interpret the sources of Islamic Law. These linguistic categories are of such broad relevance to the study of Islamic legal studies and so intricate in their ramifications that we find these categories in one form or another to be almost perennially present in each process of law-making. They not only function to reduce the subjectivity of interpreting the texts of the sources of Islamic Law but also provide the legal system with its inner consistency within each school of law. Although much effort has been devoted in Islamic Legal Studies to the analysis of the origins of Islamic Law and its effects on social and political spheres, there is a need for a thorough analysis of the linguistic categories, which constitute an important part of uṣūl al-fiqh. Existing studies dealing with the linguistic categories do not go beyond perpetuating, with various degrees of success, the linguistic categories already found in Classical Arabic texts, without providing any clear theory that would make such a linguistic analysis meaningful. Other studies, by contrast, seem to apply some frameworks to uṣūl al-fiqh, that are not intrinsic to the science – an approach that brings with it several problems in understanding the linguistic categories and their function in the process of law-making. The present work points out, for the first time, the lack of an explicit general framework for the linguistic categories in classical uṣūl al-fiqh manuals, and it argues that the linguistic categories can reveal the general framework behind these categories. It further argues that the linguistic categories are nothing but the outcome of the uṣūlīs’ intellectual process of explaining the way human beings deal with what is termed in the present work ‘the inherent nature of language’. This work consists of one introductory and four main chapters followed by a conclusion. The introductory chapter (Chapter 1) sets out an overview of the linguistic categories and their importance in the process of law-making. Chapter 2 discusses, among other things, the inherent nature of language, which is dealt with what I call ‘the practical way of name-giving’. Drawing mainly on the celebrated scholar Abū al-Barakāt al-Nasafī’s influential work, Manār al-Anwār, with its two well-known commentaries and one gloss along with other primary sources in uṣūl al-fiqh within the Ḥanafī school of law, Chapter 3 provides a thorough analysis of the linguistic categories, on the basis of which I construct a general framework which, I argue, makes the outcome of uṣūlīs’ analysis of language (namely, the linguistic categories) meaningful. Chapter 4 applies these linguistic categories, in the light of the general framework, to a legal matter in Islamic Criminal Law, namely sirqa (theft). Chapter 5 provides a linguistic analysis of the application of the linguistic categories to sirqa. Chapter 6 is a conclusion.