Plenary:  Basics of Islamic Law

  1. The Sources of Islamic Law

  Sherman Jackson

University of Michigan, Ann Arbor

   

The Formative Period  

I.               Obvious starting point for contemplating a properly constituted “Islamic life” is the Qur'ân and the explanatory and supplementary addenda of the Prophet Muhammad, the so-called Sunna

 

A.   Qur'ân and Sunna considered equal in terms of authority

 

B.    But the identity of the Sunna differs from that of the Qur'ân in that the attribution of individual reports about the Prophet's words and actions, reports known as hadith, remain open to debate

1.     each individual in the chain of transmission subject to critique

2.     in the early period, the Sunna of the Prophet was not always distinguishable from local practice of the various centers, especially that of the Prophet's city of Medina

 

C.    The spread of Islam outside Arabia further complicated this matter by augmenting the number of local practices that could be conflated with Prophetic Sunna and credited with the authority of religious law

 

D.    This gives rise to the first “revolution” in Islamic law

 

II.             Prior to late 2nd/8th century, legal deliberations had been proceeded on the basis of the primary sources mediated through local custom (sometimes accurately and sometimes inaccurately equated with Prophetic Sunna) and an Arab nativist practical reasoning.  This would all change with the famous jurist, Muhammad b. Idris al-Shâfi‘î, who laid the foundations for a formal legal theory and emphatically separated Prophetic Sunna from local practice

 

A.    Al-Shâfi‘î's contribution was two-fold:

1.     He imposed formal strictures on the enterprise of legal argument, identifying both the sources of law and the acceptable methods of interpreting them

a.     His efforts in this regard eternalized the following as the four universally agreed upon sources of Islamic law

                                                                                                     i.     Qur'ân

                                                                                                   ii.     Sunna

                                                                                                  iii.     Unanimous Consensus (Ijmâ‘)

                                                                                                  iv.     Analogy (Qiyâs)

                   

2.     He vehemently argued that only the Sunna or established practice of the Prophet     Muhammad was probative as a source of law

a.     His efforts in this regard are reflected in the chronological development of the canonical collections of hadith

                                                                                                     i.     al-Shâfi‘î dies in 204/819

                                                                                                   ii.     All of the authors of the so-called Six Sound die between the middle and the end of the 3rd/9th century

 

B.    Al-Shâfi‘î's efforts also resulted (indirectly and unintentionally) in the rise of legal formalism as the established method of interpretation

1.     Meaning limited to the observable features of the Arabic language

 

2.     Legal formalism leveled the playing field between Arab nativists and the Arabicized non-Arab Muslims from the conquered territories, as the history, social customs and non-linguistic indicators of meaning to which the Arabians had direct access, are marginalized

a.     Full-blown Islamic legal theory basically a compromise between al-Shâfi‘î and the legal formalists

 

III.  Disputed sources and methods

 

A.  Excesses of formalism recognized.  This confers recognition upon certain controls and countervailing methods carried over from the pre-theory period:

1.  Istihsân / Equity

2.  Maslahah / Public Utility

3.  ‘Urf / Custom

 

The Post-Formative Period

 

I.               Ijtihâd, or independent interpretation, both on the basis of the sources and practical reasoning of the pre-theory years and on the basis of methodologies enshrined by the full-blown formal theory produces authoritative figures and transform interpretive communities or madhhabs into sources of legal authority

 

A.    Formal theory confers prima facie authority upon all views that could be vindicated on the basis of the recognized methodology.  This inaugurates the post-formative period of Islamic law and the regime of taqlîd or “following precedent”

 

1.     Four equally orthodox, equally authoritative schools: Hanafî, Mâlikî, Shâfi‘î and Hanbalî schools

 

B.    With the “settling down of the madhhabs,” legal interpretation evolves to the point that it now begins with the doctrines, precepts and precedents of the established schools rather than the primary sources

1.     Basis of authority shifts from the individual jurist to the school of law as a whole.  Whereas the jurist in the formative period gave a fatwâ or legal opinion in his own name, he now issued fatwâs primarily in the name of the school to which he belonged.  Where his own views diverged from those of his school, he had now either to bring the school over to his way of thinking or disguise his view as that of the school

 

2.     Legal precepts / Qawâ'id (what American Constitutional law refers to as “tests”) replace the primary sources, i.e., Qur'ân, Sunna, as the starting point of legal deliberation

 

a.     E.g., “oscillation between loan and price”

              

II.             Ijtihâd, i.e., reverting to the primary sources, now the exception and must be justified.

 

A.     Taqlîd (a cognate of stare decisis) now the norm and diverging from it must be justified

 

B.    This tension between ijtihâd and taqlîd, the individual jurist and the collective madhhab and the primary sources and legal precepts define Islamic law from the high classical period right down to modern times

   

2. The Characteristics of Islamic Law

John Makdisi

St. Thomas University School of Law, Miami

   

I.        The Function of Islamic Law

A.       Individual Self-Definition

B.       Justice, Not Morality

1.        Subject Matter Jurisdiction

2.        Qualifications of Legal Acts

C.       Law Above the State

D.       Individualism

E.        Freedom of Contract

F.        Impartial Judge

G.       Res Judicata

H.       Judge as Blank Slate

I.        Passive Judge

J.        Privilege Against Self-Incrimination

K.       Fairness over Truth

L.        Individual Autonomy

 

II        The Structure of Islamic Law

A.       Untrained and Transitory Decisionmakers

B.       Overlap of Testimonial and Adjudicative Tasks

C.       Judge as Moderator, Supervisor, Announcer, and Enforcer–not Adjudicator

D.       No Appeal

E.        Dissent

F.        Day in Court

G.       Prosecution for Perjury

H.       Oral Testimony

3.  The Islamic Legal System

 

Frank E. Vogel

Harvard Law School

 

  How did the law described so far get translated into a functioning legal system? 

 

I.               First, does the Qur'an lay down “law”?

 

A.   Some Qur'anic texts

B.    Accounts about Prophet Muhammad as ruler and judge

C.    Accounts about his early companions' legal activities

 

II.             At least as understood by the classical Sunni tradition, the Qur'an and Sunna adumbrate two distinct ideal types of implementation or enforcement:

 

A.   First type: ijtihad – effort to learn from revealed texts God's command as to a particular action

 

1.     Ijtihad of individual, seeking to know God's law in order to follow it in conditions of uncertainty

a)     Few are capable of this effort; emphasis on knowledge of the revelation and on piety naturally leads to reliance (taqlid) on others who possess greater knowledge or piety

 

2.     Ijtihad of judge, seeking to know God's law to apply it to others in conditions of uncertainty

a)     Early accounts and source texts on ijtihad

b)    Ijtihad as the process that legitimates enforcing on others one's imperfect judgment as to what God's law is

c)     All judges should be capable of ijtihad

d)    Adaptations of divine law enabling it to be applied as law by judges:

(1)  Though law indissolubly moral as well as legal, judges consider only matters having tangible legal consequences

(2)  Judges are concerned only with the outward manifestation of parties' claims and of witnesses' statements (the “zahir,” or “manifest,” apparent; not the “batin,” the inner, subtle); it is not forum interior

 

B.    Second type: command of ruler (caliph, commander of the faithful, sultan)

 

1.     Qur'an declares,

Obey God, and obey the Apostle and those from among you who have been entrusted with authority; and if you are at variance over any matter, refer it unto God and the Apostle, if you believe in God and the Last Day.  [4:59]

 

2.     Qur'an lays down injunctions only a state or ruler may fulfill; for example:

a)     War

b)    Taxes

c)     Criminal punishments

d)    Justice as fairness among the community

 

3.     Succeeding the Prophet as head of state, the caliph monopolizes power as to material means; to what extent does he also possess authority over religious truth?

 

4.     All state officers wielding authority are considered delegates of ruler

a)     Including judges; hence judges have a second face – a scholar, but one wielding the authority of the ruler

 

III.           Which of these two cardinal modes of law's application – by scholar or ruler – is dominant?  Across Islamic history the two modes are unable either to make peace with, or to dispense with, each other.  They remain in tension, continually vying for constitutional position.  Historically, the ruler model began as dominant, but within a few centuries the ijtihad model gains ascendance ideologically, and eventually is able to recast the whole legal system in its own image.  But, the tension is intrinsic and the war never over.  Myriads of historical variations, in theory and in practice, occur.

 

IV.           A theoretical formulation (by scholars) of the tension, articulated in the 14th century, remains influential until today.  According to it the two modes are complementary and should coexist in cooperation. [1]   This late synthesis theorizes the two systems as follows (I here focus solely on the power to fix the legal rules actually applied, i.e., legislation):

 

A.   Fiqh – found by scholars through their interpretive method (described by earlier speakers)

1.     Jurists' law is grounded in texts, is formulated by private pious conscience, is justified in religious knowledge, is independent of the state, has as object individual conscience and acts, aims for transcendent truth, but is aware of multiple possible alternative estimations of that truth, enforces one in specific cases while acknowledging the potential truth of others.  (This is the ideal; in actual implementation, law is determined and evolves within the semi-official institutions of the legal schools) 

 

B.    Siyasa – a ruler may take any action, even issue laws, if they serve the general utility and do not “contradict Shari‘a.”  The latter test – which has many possible meanings – is to be administered by scholars through the ruler's consulting them.  The ruler is presumed not to possess authority to practice ijtihad himself

1.     Ruler's law is based in utility, arises from the state as state, relies on knowledge of the needs of the community, concerns the collectivity, responds to contingencies, and makes no truth claims beyond avoiding contradiction with Islamic law.  (This is again highly conceptual or theoretical; in practice, customs, dynastic traditions, and bureaucratic expertise play a major role)

 

C.    Examples of cooperation and competition of fiqh and siyasa, jurists' law and ruler's law.

 

V.             Relevance of this late medieval model to today's world

 

A.   Late medieval systems abruptly dismantled in colonial era – in India, Ottoman Empire, Persia, chiefly during 19th century

 

B.    Survived only in a few backwaters –Arabian peninsula; Arabian gulf principalities; Afghanistan

 

C.    But in another sense the model underlies the semi-secular nature of most Muslim countries.  Its lingering influence enables them to maintain that their legal systems and laws, though almost entirely western-inspired, are still consistent with Islam

 

D.   What about more radically Islamic states like Iran, Sudan or Taliban Afghanistan?  And various Islamist movements seeking to establish similar states?   The states and movements seem no longer to acknowledge the old model (according to which the state and its law are contingent and compromised while still Islamically valid), but instead to aspire to the ideal mythic state of the companions of the Prophet

   

Glossary

 

siyasa           policy, governance, administration

fiqh              lit. understanding or perceptiveness; the science of the divine law, the sum of man's knowledge of the Sharia‘a, Islamic law or jurisprudence

Sultan           lit. power or authority; sultan, ruler

Khalifa                  lit. successor, vicegerent; caliph

taqlid           relying upon the opinion of another, not practicing ijtihad, the individual search for a ruling from the divine law


[1] Ibn Taymiyyah, etc.

 

 

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