Legal Reasoning

 

1. Ijtihad (Independent Legal Reasoning) and its Relationship to the Four Canonical Sources of Law in Sunni Jurisprudence

 

Bernard Freamon

Seton Hall University

   

I.                    THE SHARI'A: A THEOCENTRIC COMMUNITARIAN SYSTEM OF LAW AND ETHICS

 

A.     Islamic Faith, Theology, Ethics, and Law—all intersecting in a comprehensive and robust system of thought and way of life

B.     The Shari'a---the corpus of Islamic law and ethics--- prescribes a behavioral path that will lead the believer to salvation

C.     Jurisprudence (fiqh)(literally “understanding” or “comprehension”) and the foundations of jurisprudence (usul al fiqh)(literally “the roots of understanding”)----often viewed as the “roots” and the “branches” of the Shari'a.

D.     The Five Purposes of the Shari'a: protection and advancement of: (1) Religion; (2) Life; (3) Intellect or Reason; (4) Lineage; and (5) Property

 

II.                 THE FOUR CANONICAL SOURCES OF THE SHARI'A

 

A.     THE PRIMARY SOURCES

 

1.      The Qur'an (the “recitation”--The Revelational Text)

a.       First and most authoritative source of law and ethical guidance for all Muslims [1]

b.      Confirms validity of all other sources

c.       Revelation generally divided into two broad classifications, classed in accordance with the time of revelation:

a)      Meccan verses--first 13 years of Prophet's mission

b)      Medinan verses--last 10 years of the Prophet's mission

d.      Most (but not all) of the revelation having legal significance are Medinan

e.       Source of a vast body of jurisprudential discourse and literature

 

2.      The Sunnah (The “clear path” or “beaten track”) [2]

a.       The precedential and normative example given to us by the Prophet Muhammad

b.      Functions like a by-law to the Qur'an—interprets, clarifies, explicates or complements the revelational text

c.       Hadith (a “story”)---a factual account or narrative of an event in the life of the Prophet Muhammad

1.      hadith (plural: ahadith) are the individual building blocks of the Sunnah

2.      ahadith are narrations of doings, sayings, and tacit approvals of the Prophet whereas the Sunnah is the law deduced from those doings, sayings, and tacit approvals [3]

3.      The sciences of hadith---also a vast body of jurisprudential, historical, and evidential literature and discourse on the integrity, authenticity, and applicability of ahadith to daily life, politics, war, etc.

 

B.     THE SECONDARY SOURCES

 

1.      Ijma' (“consensus” or sometimes, “agreement”)

a.       A basis for legitimizing points of Islamic law

b.      Forms an essential part of law-making process in any true Islamic society

c.       “[E]nsures the correct interpretation of the Qur'an, the faithful understanding and transmission of the Sunnah, and the legitimate use of ijtihad.” [4]

d.      Can have “consensus” of scholars and, in certain matters, “consensus” of the religious community

e.       “Consensus” may only be employed when the point is not unambiguously resolved by a definitive text of the Qur'an or Sunnah, although “consensus” may be useful in confirming widely agreed-upon interpretations of texts, methods of recitation, questions of religious practice, diplomacy, charitable dispensations, and other issues of importance to the religious community

f.        Classical law requires that “consensus” of scholars be unanimous before it will rise to the status of a source of law—must have the “unanimous agreement, after the death of the Prophet, of all learned scholars [in a generation] having the capacity of independent and original legal reasoning or thinking [mujtahideen—those qualified to perform ijtihad] or of all people having the power to loosen and bind, i.e., the leading personalities having the power of decision-making, on any matter of religion or worldly affairs.” [5]

2.      Qiyas (“measuring”---usually translated as “reasoning by analogy”)

a.       Involves reasoning from principles established in an original case decided under the revealed texts and applying those principles, typically--but not always--by analogy, to a new case not contemplated in the sources.

b.      Recourse to analogy is only warranted if the solution of a new case cannot be found in the Qur'an, Sunnah, or a definitive Ijma'. [6]

c.       Commonly used example—prohibition of drinking of grape wine contained in Qur'an extended by analogy to all intoxicants

d.      Use of Qiyas does not involve just textual interpretation but rather concerns the application of principles of logic, practical reasoning, and jurisprudential fidelity to the purposes and objectives of the law [7]

e.       Classical methodology of Qiyas always involves four elements:

1.      Original case (asl) contained in text

2.      New case (far')

3.      Effective Cause (‘illah)—common feature or attribute of both original case and new case; this is similar to the notion of ratio decidendi in Anglo-American law

4.      Rule (hukm) (“judgment” or “legal norm”) governing original case is extended by analogy or other form of reasoning to the new case [8]

 

 

C.     OTHER MODES OF REASONING SOMETIMES DESCRIBED AS   SOURCES OF LAW

1.      Equitable Discretion (istihsan)

a.       Authorizes departure from the command of a textual rule or ijma' or judgment reached by analogy (positive law) when application of the rule will result in injustice or hardship

b.      Important aspect of ijtihad and plays a vital role in growth of Islamic law because it encourages flexibility and reasoning with a view toward achieving justice and right reason rather than slavish and absurd adherence to texts.

2.      Public Interest (maslahah mursalah or sometimes just maslahah or istislah---“interests”)

a.      Considerations that secure a benefit or prevent a harm and are simultaneously harmonious with the objectives and purposes of the Shari'a [9]

b.      Often used to justify or invalidate governmental regulation and provision of services or judicial decision-making in areas where there is no specific textual authority or guidance (e.g., civil regulation of marriage, zoning regulations, administration of prisons, certain forms of taxation, regulation of the medical and legal professions, etc.) [10]   

 

3.      Custom (‘urf or ‘urf wa adah-- “custom and usage”)

a.       Formulation of a rule of decision or mode of interpretation or determination of “consensus” on the basis of a general or local model of behavior, social understanding, or mode of expression that is generally accepted by the population and does not contradict a definitive rule of the Shari'a. [11]

b.      The classical and medieval jurists spent much of their time on issues concerned with ascertaining the existence of custom, determining its validity in light of the Shari'a, and determining what weight a valid custom should have in the juridical decision-making of Islamic governments and by individuals in commercial and family matters

   

 

III.               Ijtihad---INDEPENDENT LEGAL REASONING

 

A.     DEFINING IJTIHAD AND DETERMINING ITS PROVINCE

1.      The word ijtihad is derived from the Arabic trilateral root verb jahada, meaning “to endeavor; to strive; to exert; to seek to achieve a goal.” In Arabic, there are many words derived from the root verb jahada, including the word jihad. Although the word ijtihad is related to this concept (meaning “effort” or “diligence” or “industry”), it has acquired a technical, juridical meaning.

2.      Juridically, ijtihad describes the intellectual effort engaged in by an Islamic jurist in order to infer, deduce, or derive, with some degree of certainty or probability, the rules of the Shari'a from the Qur'an, the Sunnah, and established consensus, using Qiyas or other methods of legal reasoning.

3.      The province of ijtihad is to enable the jurist to arrive at a sound judgment with respect to interpretation and applicability of speculative or ambiguous texts and established consensus. Ijtihad is not called for in cases where the text is clear, definitive, and unambiguous.

4.      Ijtihad is often described as a “source” of Islamic law. [12] This is probably inaccurate. It is, instead, a methodology of interpretation of texts and of legal reasoning. In that sense it is of tremendous importance because it is the vehicle that enables the jurist to harmonize the commands of the revelation with the dictates of reason. The methodology also requires that jurists understand and evaluate “changing conditions of the Muslim community in its aspirations to attain justice, salvation, and truth.” [13]

5.      In the Sunni tradition, the methodology of ijtihad developed out of the emergence and maturation of the four canonical “schools of law” (Maliki, Hanafi, Shafii, and Hanbali). Each of these “schools of law” is named after a master jurist who lived during the formative period of Islamic law and perfected and taught particular interpretations of texts, modes of reasoning, interpretive strategies, and solutions to legal problems.

6.      Not every jurist is qualified to exercise ijtihad. A jurist who is so qualified is called a mujtahid. He or she must: (1) have a good knowledge of the Qur'an; (2) have a good knowledge of the Sunnah, including the rules for ascertaining authenticity of ahadith and for critical analysis of them; (3) know the principles of abrogation and be aware of the texts that are considered to be abrogated; (4) know what has been settled by consensus of scholars or by the community and have knowledge of how to ascertain the existence of a consensus; (5) be aware of the opinions of other mujtahids and be able to critically analyze them; (6) be able to apply Qiyas, Istihsan, Maslahah, ‘Urf, and other methods of legal reasoning; (7) have a good command of the Arabic language, its grammar, syntax, style, rhetoric, and other related linguistic and philological characteristics; (8) be conversant with the rules and principles of the science of the foundations of jurisprudence (usul al fiqh); (9) have knowledge of the ends and purposes of the Shari'a and be able to reason from those ends; (10) be a person of good character, with good common sense, an ability to engage in practical reasoning, and capable of careful and discerning deliberation. [14]

7.      The mujtahid must be independent. The classical and medieval Islamic scholars ranked jurists, in accordance with their level of theoretical knowledge, skill in reasoning, and command of the sources. The rank of mujtahid, i.e., one qualified to practice ijtihad, is reserved for those who are capable of giving a sound and reasoned opinion on a question of law without resorting to imitation or emulation of the opinions of others and without fear of condemnation or criticism by other mujtahids or the government of the day. He or she should guard against “complacency in favor of friends and bias against enemies.” [15]          

 

B.     THE METHODOLOGY OF IJTIHAD: A VERY BRIEF SYNOPSIS [16]

 

1.      Classifications of Textual Language in the effort to ascertain meaning

a.       Words with clear meaning

1)      The manifest and clear

2)      The unequivocal and perspicuous

b.      Words which do not convey clear meaning

1)      Obscure meanings

2)       Difficult meanings

3)      Ambivalent meanings

4)      Intricate meanings

 

2.      General versus specific patterns of language in the coverage of texts

3.       Unqualified (absolute) application and qualified (limited) application of textual provisions

4.      The literal and the metaphorical

5.       Inferences derived from texts:

a.       Explicit meaning derived from theme and purpose of text

b.      Alluded meaning derived from comparison of subject text with other texts on same subject and rational investigation

c.       Inferred meaning derived from use of analogy

d.      Meaning required by supplementation with other texts

e.       Divergent meanings specified in other texts

6.      Other devices and doctrines used in deriving a rule of law from the sources

a.       Commands and Prohibitions

b.      The role of abrogated texts

c.       Analogy

d.      Equity

e.       The Public Interest

7.      Other important factors:

a.       The historical context giving rise to the Revelation

b.      The degree of certainty in regard to the authenticity of the text

c.       The practice of the Companions of the Prophet and of the “Rightly Guided Caliphs”

d.      Other unusual factors

       

IV.              TWO EXAMPLES OF IJTIHAD—ONE EASY, THE OTHER DIFFICULT

 

A.     THE PROBLEM OF THE CONDUCT OF GOVERNMENTAL AFFAIRS OR EDUCATIONAL DUTIES AT THE TIME OF FRIDAY PRAYER

 

1.      The text in the Qur'an is not clear. It provides:

 

“O ye who believe!

When the call is proclaimed

To prayer on Friday

(The Day of Assembly)

Hasten earnestly to the remembrance of Allah (God), and

Leave off business (and traffic)

That is best for you If ye but knew!” (Qur'an 62:9)

 

2.      Query: Does this mean that municipal governments must cease regulation of traffic or that schools must suspend classes at the time of Friday prayer?

 

3.      The translation of the Arabic word used for “business” in the text literally means “buying and selling.” However, by using Qiyas we see that the “effective cause” of the rule can be derived from the verse: buying and selling at the time of the Friday Prayer is prohibited so that people can remember God. Such behavior distracts from the remembrance of God.

 

4.      Is the same true of the examples we have asked about? In the case of educational projects the question is clearly yes. In the case of municipal regulation the answer is also yes, but perhaps the rule might be tempered by considerations of public interest.

 


B.     WAR WITH POLYTHEISTS

 

1.      Should Muslims make war with polytheists in a defensive posture only or should there be aggressive, unlimited war until they are all converted to Islam?

 

2.      The text seems to say that such war is unlimited. It provides:

 

“But when the forbidden months are past,

Fight and slay the pagans wherever ye find them,

And seize them, beleaguer them, and lie in wait for them

In every stratagem (of war); But if they repent,

And establish regular prayers and practice regular charity

Then open the way for them;

For Allah (God) is Oft-forgiving, Most Merciful” (Qur'an 9:5)

 

3.      There are other verses (e.g., 22:39-40) that suggest only limited defensive warfare. A number of eminent scholars, especially those in the formative period and in medieval times, have taken the position that this verse abrogates those verses that call for limited warfare. One should note, however, that there is a historical context that appears to dominate the revelation of this verse. This is the classic “sword verse” that was revealed near the close of the Prophet's mission when his new Islamic state in Medina was confronted with military difficulties and treachery on the part of the recalcitrant pagan Arab tribes in the newly conquered Arabian territory. The verse provided for a four-month grace period, after which there would be a state of unmitigated war with non-believers.

 

4.      Modern interpretations suggest, however, that a constant state of warfare is not consistent with the intent and purpose of the Qur'an. [17] These interpreters dispute the abrogating effect of verse 9:5 and, seeking to hold it to its context, they cite other verses that appear to command a regime of peaceful relations with non-Muslims, so long as they “fight you not for (your) faith, nor drive you out of your homes….” In such case, Muslims are commanded to deal “kindly and justly with them: for Allah (God) loveth those that are just.” Qur'an 60:8              

 

 2.  In the Opinions of a Contemporary Muslim Jurist

 

Aron Zysow

Harvard University

 

I.          Who is Yusuf al-Qaradawi?

A.  Yusuf al-Qaradawi (b. 1926) is probably the most famous Muslim jurist of our day.

B.   Born and educated in Egypt, he has long been a resident of Qatar, where he serves as Dean of the Faculty of Shariah and Islamic Studies of the University of Qatar

C.   Al-Qaradawi has a long career as a writer, and some of his many works have been Islamic bestsellers.

 

II.         Al-Qaradawi and the modern media:

A.  Al-Qaradawi has become a celebrity through tapes and broadcasts, including frequent appearances on al-Jazeerah.

B.   His legal opinions (fatawa) are now also available on the internet, particularly through www.Islam-online.net and www.Qaradawi.net.

 

III.       Al-Qaradawi sees himself and is seen by many Muslims as a moderate.

A.  He has stated that Islam and democracy are compatible.

B.   He has taken liberal positions on a number of social issues.

C.  He was among the forefront of Muslim leaders to condemn that attack on the World Trade Center.

IV.       Al-Qaradawi has not been able to avoid controversy.

A.  He was arrested and imprisoned in Egypt while a student for his association with the Muslim Brothers,

B.   He has consistently called upon Muslims to unite to destroy Israel, in a conflict that he regards as a war between Islam and Judaism.

C.  He has endorsed the use of “suicide bombing” or as he would term it “martyrdom operations” against Israeli civilians.

D.  al-Qaradawi has been persona non grata in the United States since 1999 for his support of Hamas.

E.   He has been denounced by certain more conservative Muslims as excessively liberal and branded by them as morally unfit to serve as an authority on Islamic law.

 

V.        Kinds of legal decision making (ijtihad) that al-Qaradawi has identified as crucial in modern times:

A.  Selective ijtihad, involving a choice among inherited discordant legal opinions,

C.     Creative ijtihad,, which yields a novel opinion on an old or new question.

 

VI.       Al-Qaradawi's ijtihad:   

A.  his appeal to social factors, a feature central to his so-called “jurisprudence of lived reality”

B.   his attention to the essential human interests (maslaha) protected by the law. 

 

VII.      Al-Qaradawi's legal theory (usul al-fiqh):

A.  He has called for a renewal (tajdid) of this traditional field of study.

B.   He has not written a comprehensive treatise on legal theory.

C.  He would undoubtedly consider the theoretical elements in his legal writings as a critical first step toward this goal.

 

VIII.     Al-Qaradawi is an exemplar of the new Muslim jurist.

A.  He lacks the intensive formal education in Islamic law formerly regarded as mandatory for legal expertise (his Azhar study was focused on theology and Prophetic precedent [sunna]).

B.   He has taken a stance independent of the traditional Sunni schools of law (madhahib), in what he sees as a necessary step to circumvent the endless rigidities of school doctrine that have accumulated over the centuries and obscured the essential flexibility of Islam.         

C.  Coming out of an activist background that urges Muslims to accept the “Islamic solution” to their personal, social, and political problems, he has explicitly defined his role as jurist in the widest possible terms.

D.  “The truth,” he has written, “is that in responding to questioners I regard myself as a jurist-respondent (mutfti), a teacher, a reformer, a healer, and a guide.”

E.   His present role as media personality is entirely consistent with his vision of the mission of the jurist in our day.

Bibliography

 

Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge, 1991.

Hallaq, Wael B., A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh, Cambridge University Press, Cambridge, 1997.

 


[1] Mohammed Hashim Kamali, Principles of Islamic Jurisprudence 14-43(1991)(1989)

[2] Id. at 44.

[3] Id. at 47.

[4] Id. at 171.

[5] Mohamed Abdel-Khalek Omar, Reasoning in Islamic Law: Part One, [1997] Arab Law Quarterly 148 at 185

[6] Kamali, supra note 1 at 197.

[7] Id. at 198.

[8] Id. at 200. See also Wael B. Hallaq, Non-Analogical Arguments in Sunni Juridical Qiyas in Wael B. Hallaq, Law and Legal Theory in Classical and Medieval Islam (1995) (arguing that a fortiorari, reductio ad absurdum, and syllogistic forms of reasoning are also used in Qiyas)

[9] Id. at 267.

[10] See, generally, Kamali, supra note 1 at pp. 267-282.

[11] Omar, Reasoning in Islamic Law: Part One, supra note 5 at 191-2

[12] See, e.g., Kamali, supra note 1 at 366 (describing Ijtihad as the most important “source” of Islamic law after the Qur'an and Sunnah)

[13] Id.

[14] Mohamed Abdel-Khalek Omar, Reasoning in Islam Law: Part Two [1997] Arab Law Quarterly 353, 359-365. Wael Hallaq suggests that good character is only required of mujtahids who perform public functions (muftis or “jurisconsults”). Wael B. Hallaq, A History of Islamic Legal Theories 118 (1999)(1997).

[15] Omar, Reasoning in Islamic Law: Part Two, supra note 14 at 366.

[16] This synopsis is, in large part, an outline of the methodology put forward by Mohamed Hashim Kamali in Kamali, supra note 1, at pp. 86-282.

[17] See, e.g., Khaled Abou El Fadl, The Place of Tolerance in Islam 18-21 (2002). See also Louay M. Safi, Peace and the Limits of War: Transcending Classical Conception of Jihad (2001).

 

 

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