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Abstract

The law is ubiquitous and yet it does not always suit the people’s needs and interests. There are at least two strategies for dealing with that problem. We can either amend the relevant legal texts through various means, ranging from exercising formal amendment procedures to a violent rebellion or civil war, or we can impose a different meaning on those texts through various techniques of interpretation, heeding appropriate limits in stretching the applicable meaning. This dissertation focuses on the second strategy and seeks to illuminate the role of consequence-based theories of interpretation, when formally amending the law is costly or impossible, as is the case when legal texts are formally immutable. , ,The Islamic legal system provides an excellent case study. Being governed or at least inspired by divine texts that have survived with no change for almost 1,500 years, it is a unique legal system that claims to be perfect, since it is assumed to be ordained by God, the omniscient entity, and not mere fallible human beings. If this claim is true, and perfection is translated into flawlessness, the Islamic legal system would never experience the problems usually faced by human-made legal systems, such as the hardships in discovering the original intent of the lawmakers or the possibility of having a law that expires because of circumstantial changes. Thus, when the texts are clear, the law must be implemented as it is, equating perfection with absolutism. ,But in practice, it is not difficult to find cases where, using consequence-based theories of interpretation, Islamic jurists and regulators interpret and apply legal provisions of the system’s foundational documents, the Qur’an and Hadiths, inconsistently with the plain meaning of the texts or their historical contexts. Are these interpretations justified? Or does the problem lie within the inherent structure of Islamic law? To answer that question, we must first resolve whether the consequence-based interpretation is compatible with the Islamic legal system, given its claim of perfection, and if the answer is yes, whether the compatibility defeats such claim. ,In this dissertation, I will show from philosophical and economic perspectives that the need to interpret Islamic legal texts does not necessarily jeopardize the system’s claim of perfection. Quite the contrary, having the possibility of reading the texts in numerous ways is fundamental in maintaining that claim. I will also demonstrate that consequence-based theories of interpretation are compatible with the Islamic legal system due to its consequentialist nature, opening the possibility of having a religious justification for Pragmatism and Law & Economics.

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