Routledge Handbook of Islamic Law 2018050285, 9781138803176, 9781315753881

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Routledge Handbook of Islamic Law

This handbook is a detailed reference source comprising original articles covering the origins, history, theory and practice of Islamic law. The handbook starts out by dealing with the question of what type of law is Islamic law and includes a critical analysis of the pedagogical approaches to studying and analysing Islamic law as a discipline. The handbook covers a broad range of issues, including the role of ethics in Islamic jurisprudence, the mechanics and processes of interpretation, the purposes and objectives of Islamic law, constitutional law and secularism, gender, bioethics, Muslim minorities in the West, jihad, and terrorism. Previous publications on this topic have approached Islamic law from a variety of disciplinary and pedagogical perspectives. One of the original features of this handbook is that it treats Islamic law as a legal discipline by taking into account the historical functions and processes of legal cultures and the patterns of legal thought. With contributions from a selection of highly regarded and leading scholars in this field, the Routledge Handbook of Islamic Law is an essential resource for students and scholars who are interested in the field of Islamic Law. Khaled Abou El Fadl is the Omar and Azmeralda Alfi Distinguished Professor of Law at the UCLA School of Law. He is the author of numerous books and articles on Islam and Shari‘ah, Islamic law and Islamic jurisprudence. Among his books are: Reasoning with God: Reclaiming Shari‘ah in the Modern Age (Rowman and Littlefield, 2014); The Search for Beauty in Islam: A Conference of the Books (Rowman and Littlefield, 2006); Speaking in God’s Name: Islamic Law, Authority and Women (Oneworld Publications, 2001); And God Knows the Soldiers: The Authoritative and Authoritarian in Islamic Discourses (Rowman and Littlefield/UPA, 2001); The Great Theft: Wrestling Islam from the Extremists (HarperOne, 2007); and Rebellion and Violence in Islamic Law (Cambridge University Press, 2001). Ahmad Atif Ahmad is Professor of Religious Studies at the University of California in Santa Barbara (UCSB). He is the author of Islamic Law: Cases, Authorities, and Worldview (Bloomsbury, 2017), The Fatigue of the Shari’ah (Palgrave, 2012), and Structural Interrelations of Theory and Practice in Islamic Law (Brill, 2006). Professor Ahmad teaches courses on Islamic legal reasoning in medieval Islam and early modern Egypt. Said Fares Hassan currently teaches at al-Azhar University, Faculty of Languages and Translation, Department of Islamic Studies, Cairo, Egypt. He received his PhD from UCLA in 2011. He worked as a visiting assistant professor at Georgetown University in 2012; a visiting fellow at the Institute for I­ slamic Studies (IAIN) Sultan Maulana Hasanuddin, Indonesia in 2014; and a visiting fellow at the Berlin ­Graduate School Muslim Cultures and Societies, Freie Universität, Berlin also in 2014. His publications include Fiqh al-Aqalliyyat: History, Development and Progress (Palgrave Macmillan, 2013) and ‘Law-­Abiding Citizen: Recent Fatwas on Muslim Minorities’ Loyalty to Western Nations’, Journal of the Muslim World, October 2015. He has contributed a number of chapters to edited volumes such as Education and the Arab Spring: Shifting Toward Democracy, (Sense Publisher, 2016), Christian–Muslim Relations: A Bibliographical History, (Brill, 2016), and The Encyclopedia of Muslim American History, (Facts on File, 2010).

Routledge Handbook of Islamic Law

Edited by Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan; individual chapters, the contributors The right of Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Abou El Fadl, Khaled, 1963-, editor. | Ahmad, Ahmad Atif, editor. | Hassan, Said Fares, editor. Title: Routledge handbook of Islamic law / Edited by Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan. Other titles: Handbook of Islamic law Description: New York, NY : Routledge, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2018050285 | ISBN 9781138803176 (hbk) Subjects: LCSH: Islamic law. | Islamic law—Methodology. | Islamic law—History. Classification: LCC KBP144.R68 2019 | DDC 340.5/9—dc23 LC record available at https://lccn.loc.gov/2018050285 ISBN: 978-1-138-80317-6 (hbk) ISBN: 978-1-315-75388-1 (ebk) Typeset in Bembo by codeMantra

Contents

List of contributors viii Notes on transliteration xiv I

Approaches and the state of the field, Ahmad Atif Ahmad, Editor 1 II

What type of law is Islamic law? Khaled Abou El Fadl, Editor 11 Part I

Jurisprudence and ethics 41 1 Shariʿah, natural law and the original state 43 Ahmed Izzidien 2 ‘God cannot be harmed’: On H ․ uqu¯q Allah/H ․ uqu¯q al-ʿiba¯ d continuum 67 Wael Hallaq 3 Balancing this world and the next: Obligation in Islamic law and jurisprudence 82 Omar Farahat 4 Divine command ethics in the Islamic legal tradition 98 Mariam al-Attar 5 Islamic law and bioethics 112 Ayman Shabana

v

Contents

Part II

History and interpretation: Scholars 125 6 The Qurʾan and the Hadith as sources of Islamic law 127 Amr Osman 7 The emergence of the major schools of Islamic law/madhhabs 141 Labeeb Ahmed Bsoul 8 Qadis and muftis: Judicial authority and the social practice of Islamic law 156 Delfina Serrano Ruano 9 Ijma¯ʿ, consensus 171 Ahmad Atif Ahmad 10 Superior argument 183 Ahmad Atif Ahmad 11 Maqa¯․sid al-Shariʿah 195 Felicitas Opwis 12 Legal pluralism in Sunni Islamic law: The causes and functions of juristic disagreement 208 Ahmed Fekry Ibrahim 13 Interpreting Islamic law through legal canons 221 Intisar A. Rabb 14 Ijtiha¯ d and taqlı¯d: Between the Islamic legal tradition and autonomous western reason 255 Sherman A. Jackson Part III

History and interpretation: Society and politics 273 15 Legal traditions of the ‘Near East’: The pre-Islamic context 275 Lena Salaymeh 16 The place of custom in Islamic law: Past and present 286 Ayman Shabana 17 Jihad, sovereignty and jurisdiction: The issue of the abode of Islam 301 Ahmed Al-Dawoody vi

Contents

18 Fiqh al-aqalliyya¯ t and Muslim minorities in the West 313 Said Fares Hassan 19 Family law and succession 324 Irene Schneider 20 Islamic law and the question of gender equality 340 Ziba Mir-Hosseini Part IV

State and power 355 21 Islamic law and the state in pre-modern Sunni thought 357 Ovamir Anjum 22 Concept of state in Shiʿi jurisprudence 374 Amirhassan Boozari 23 Codification, legal borrowing and the localization of ‘Islamic law’ 389 Guy Burak 24 Modern Islamic constitutional theory 400 Andrew F. March 25 Islam, constitutionalism and democratic self-government 415 Mohammad H. Fadel 26 Terrorism, religious violence and the Shariʿah 428 Ahmed Al-Dawoody Index 441

vii

List of contributors

Khaled ABOU EL FADL is the Omar and Azmeralda Alfi Distinguished Professor of Law at the UCLA School of Law. He is the author of numerous books and articles on Islam and Shari‘ah, Islamic law and Islamic jurisprudence. Among his books are: Reasoning with God: Reclaiming Shari‘ah in the Modern Age (Rowman and Littlefield, 2014); The Search for Beauty in Islam: A Conference of the Books (Rowman and Littlefield, 2006); Speaking in God’s Name: Islamic Law, Authority and Women (Oneworld Publications, 2001); And God Knows the Soldiers: The Authoritative and Authoritarian in Islamic Discourses (Rowman and Littlefield/UPA, 2001); The Great Theft: Wrestling Islam from the Extremists (HarperOne, 2007); and Rebellion and Violence in Islamic Law (Cambridge University Press, 2001). Ahmad Atif AHMAD is Professor of Religious Studies at the University of California in Santa Barbara (UCSB). Author of Islamic Law: Cases, Authorities, and Worldview (Bloomsbury, 2017), The Fatigue of the Shari’ah (Palgrave, 2012), and Structural Interrelations of Theory and Practice in Islamic Law (Brill, 2006), Professor Ahmad teaches courses on Islamic legal reasoning in medieval Islam and early modern Egypt. Mariam AL-ATTAR is a lecturer at the American University of Sharjah. She obtained her PhD in Islamic Ethics from the University of Leeds. Al-Attar taught courses on Islamic studies, philosophy and ethics at King’s Academy and the University of Jordan. After moving to the Emirates, she taught courses in Arab Heritage, Introduction to philosophy, and Islamic philosophy at the American University of Sharjah. She is the author of a monograph on Islamic Ethics besides various book chapters and journal articles. Her research interests include Islamic ethics, kala¯ m, us․u¯l al-fiqh, philosophy, bioethics and contemporary Arabic thought. Prior to her academic career, she was a physicist working as a clinical scientist in Jordanian hospitals and in the UK. Ahmed AL-DAWOODY was born in Egypt and is the legal adviser for Islamic law and jurisprudence at the ICRC. He also is a visiting professor at the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland. Prior to joining the ICRC, he was an assistant professor in Islamic Studies and Islamic law at Al-Azhar University in Cairo. He was the Assistant Director of Graduate Studies for the Institute for Islamic World Studies and the coordinator of the MA program me in Contemporary Islamic Studies at Zayed University in Dubai, United Arab Emirates. He taught in Egypt, the USA, the UK, the UAE and Switzerland. He has published more than two dozen articles and book chapters on Islamic law and is the author of The Islamic Law of War: Justifications and Regulations (Palgrave Macmillan, 2011). viii

List of contributors

Ovamir ANJUM is Imam Khattab Endowed Chair of Islamic Studies at the Department of Philosophy and Religious Studies, University of Toledo. His work focuses on the nexus of theology, ethics, politics and law in classical and medieval Islam, with comparative interest in Western thought. His interests are united by a common theoretical focus on epistemology or views of intellect/reason in various domains of Islamic thought, ranging from politics, law, theology, falsafa and spirituality. He is the author of Politics, Law and Community in Islamic Thought: The Taymiyyan Moment (Cambridge University Press, 2012). He is also near completing a decade-long project to translate a popular Islamic spiritual and theological classic, Madarij al-Salikin (Ranks of Divine Seekers) by Ibn al-Qayyim (d. 1351) under contract with Brill, along with two other book-length projects, one on violence in Islamic thought and another a multi-volume survey of Islamic history. Amirhassan BOOZARI is an Iranian independent scholar. He has an SJD (PhD in law) in Comparative/Islamic Law from UCLA School of Law and an LLM in International Business Law from Case Western Reserve University Law School. As an adjunct professor, he has taught a variety of courses in Islamic law, Iranian and comparative constitutional law at UCLA International Institute, UCLA School of Law and other law schools in the US. As an attorney, he litigated cases in Iran up to the Supreme Court and was a legal adviser to the Iranian parliament. He has authored a book, Shi’i Jurisprudence and Constitution: Revolution in Iran (Palgrave Macmillan, 2011) and serves as an expert in foreign law. Labeeb Ahmed BSOUL,  Associate Professor at Khalifa University, received his BA and MA in International Relations embedded firmly in the Middle East and Islamic World from SFSU, and his PhD from McGill University. Among his many published academic articles, book chapters and books are International Treaties (Mu‘ahadat) in Islam (University Press of America, 2007), and Formation of Islamic Jurisprudence (Palgrave Macmillan, 2016), Islamic ­History and Law (Palgrave Macmillan, 2016), Medieval Islamic World: An Intellectual History of Science and Politics (Peter Lang, 2018), and a recent monograph entitled Islamic Tarjamah (translation) and al-Mutha¯ qafah (acculturation) and its Position in Human Civilization, under review. Guy BURAK is the Librarian for Middle Eastern, Islamic and Jewish Studies at New York University’s Elmer Holmes Bobst Library. He is the author of The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire (Cambridge University Press, 2015), which was awarded an Honorable Mention for the Fuat Köprülü Prize of the Ottoman and Turkish Studies Association. He is also the author of several articles on Islamic law in the Ottoman and post-Mongol periods. He is currently working on a monograph on the history of Kanun in the Ottoman and the post-Ottoman Middle East. Mohammad H. FADEL is Professor at the Faculty of Law, which he joined in January 2006. Professor Fadel wrote his PhD dissertation on legal process in medieval Islamic law while at the University of Chicago and received his JD from the University of Virginia School of Law. Professor Fadel was admitted to the Bar of New York in 2000 and practised law with the firm of Sullivan & Cromwell LLP in New York, where he worked on a wide variety of corporate finance transactions and securities-related regulatory investigations. Professor Fadel also served as a law clerk to the Honorable Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit and the Honorable Anthony A. Alaimo of the United States District Court for the Southern District of Georgia. Professor Fadel has published numerous articles in Islamic legal history and Islam and liberalism. ix

List of contributors

Omar FARAHAT  is an Assistant Professor at McGill University’s Faculty of Law. His areas of interest include legal theory, comparative law, theoretical and theological ethics, and religious forms of regulation relative to modern legal systems. His current research centres on Islamic legal and moral theories, with a focus on the analysis of key concepts in Islamic legal theory in conversation with similar debates in contemporary jurisprudence. Farahat’s first book, titled The Foundation of Norms in Islamic Jurisprudence and Theology (Cambridge: Cambridge University Press, 2019). Explores the role of divine speech as a normative source in Islamic theology and legal theory. His work on Islamic legal theory and ethics has also appeared in Journal of Law and Religion, Journal of Religious Ethics and Oriens. Wael HALLAQ is the Avalon Foundation Professor in the Humanities at Columbia University, where he teaches Islamic law, ethics and intellectual history. He is the author of more than 70 scholarly articles, and his books include Ibn Taymiyya Against the Greek Logicians (Oxford University Press, 1993); A History of Islamic Legal Theories (Cambridge University Press, 1997); Authority, Continuity and Change in Islamic Law (Cambridge University Press, 2001); Origins and Evolution of Islamic Law (Cambridge University Press, 2005), and Shari’ah: Theory, Practice, Transformations (Cambridge University Press, 2009). His latest work, Restating Orientalism was published by Columbia University Press in 2018, and his The Impossible State, also by the latter press (2013), has won Columbia University Press’s Distinguished Book Award for 2013–2015. Hallaq’s work has been widely debated and translated into Arabic, Indonesian, Italian, Japanese, Persian, Turkish and Urdu, among others. Said Fares HASSAN currently teaches at al-Azhar University, Faculty of Languages and Translation, Department of Islamic Studies, Cairo, Egypt. He received his PhD from UCLA in 2011. He worked as a visiting assistant professor at Georgetown University in 2012; a visiting fellow at the Institute for Islamic Studies (IAIN) Sultan Maulana Hasanuddin, Indonesia in 2014; and a visiting fellow at the Berlin Graduate School Muslim Cultures and Societies, Freie Universität, Berlin also in 2014. His publications include Fiqh al-Aqalliyyat: History, development and Progress (Palgrave Macmillan, 2013) and ‘Law-Abiding Citizen: Recent Fatwas on Muslim Minorities’ Loyalty to Western Nations’, Journal of the Muslim World, October 2015. He has contributed a number of chapters to edited volumes such as Education and the Arab Spring: Shifting Toward Democracy, 2016, Christian–Muslim Relations. A Bibliographical History, 2016, and The Encyclopedia of Muslim American History, 2010. Ahmed Fekry IBRAHIM is Assistant Professor of Islamic law at McGill University’s Institute of Islamic Studies in Montreal, Canada. He holds a BA from al-Azhar University, an MA from the American University in Cairo, and a PhD from Georgetown University (2011). His research interests cover juristic discourse and court practice in both the formative period of Islamic law and the post-classical Mamluk and Ottoman periods. In his research, he seeks to explore the tensions between human rights discourses and some interpretations of pre-­modern Islamic law. He is currently working on two book projects that have been supported with research grants from the Fonds de recherché du Quebec – Société et Culture (FRQSC) and the Social Sciences and Humanities Research Council of ­Canada (SSHRC). He is the author of Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse University Press, 2015), and Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century (Cambridge University Press, 2018). He can be reached at [email protected]. x

List of contributors

Ahmed IZZIDIEN  completed his studies at the University completed his studies at the University of Cambridge with a degree in Theology and World Religions. He pursued his research at Harvard with a focus on Social Contracts of the Middle East. He returned to ­England to join the CIS at the Faculty for Asian and Middle Eastern Studies at the University of Cambridge, where he worked as a visiting scholar. He researched implicit determiners of early fiqh approaches to natural law. He then joined the CFLPP as a visiting researcher in the Faculty of Law at the University of Cambridge, where he undertook studies on implicit determiners of competing legal philosophies. He currently resides in Cambridge. Sherman A. JACKSON is the King Faisal Chair of Islamic Thought and Culture, Professor of Religion and Professor of American Studies and Ethnicity and Director of the Center for Islamic Thought, Culture and Practice (CITCAP) at the University of Southern California. He received his PhD from the University of Pennsylvania. And he is author of Islamic Law and the State: The Constitutional Jurisprudence of Shiha¯ b al-Dı¯n al-Qara¯ fı¯ (Brill, 1996), On the Boundaries of Theological Tolerance in Islam: Abu¯ Ha¯ mid al-Ghaza¯ lı¯’s Fays․al al-Tafriqa (Oxford University Press, 2002), Islam and the Blackamerican: Looking Toward the Third Resurrection (­Oxford University Press, 2005), Islam and the Problem of Black Suffering (Oxford University Press, 2009), Sufism for Non-Sufis: Ibn ‘At․a¯ ’ Alla¯ h al-Sakandarı¯’s Ta¯ j al-‘Aru¯s (Oxford University Press, 2012), and Initiative to Stop the Violence: Sadat’s Assassins and the Renunciation of Political Violence (Yale University Press, 2015). He has also authored numerous articles on various aspects of Islamic law, theology and history, and Islam and Muslims in modern America, with a particular focus on Black America. Andrew F. MARCH is a visiting scholar at the Middle East initiative at Harvard’s Kennedy School of Government. His research and teaching interests are in the areas of political philosophy, Islamic law and political thought, religion and political theory. His book, Islam and Liberal Citizenship (Oxford University Press, 2009), is an exploration of the Islamic juridical discourse on the rights, loyalties and obligations of Muslim minorities in liberal politics, and won the 2009 Award for Excellence in the Study of Religion from the American Academy of Religion. He is presently completing a book manuscript on the problem of divine and popular sovereignty in modern Islamic thought, titled The Caliphate of Man: The Invention of Popular Sovereignty in Modern Islamic Thought. Ziba MIR-HOSSEINI is a legal anthropologist, specializing in Islamic law, gender and ­Islamic feminism, and a founding member of the Musawah Global Movement for Equality and Justice in the Muslim Family. She has held numerous research fellowships and visiting professorships (most recently at NYU Law School); currently she is Professorial Research ­ ondon. ­A ssociate at the Centre for Islamic and Middle Eastern Law, SOAS, University of L She has published books on Islamic family law in Iran and Morocco, Iranian clerical discourses on gender, Islamic reformist thinkers, and the revival of zina laws, and most recently the co-­edited Gender and Equality in Muslim Family Law (Tauris, 2013) and Men in Charge? Rethinking Authority in Muslim Legal Tradition (Oneworld, 2015). She co-directed two award-winning feature-length documentary films on Iran: Divorce Iranian Style (1998) and Runaway (2001). She received the American Academy of Religion’s 2015 Martin E. Marty Award for the Public Understanding of Religion. Felicitas OPWIS, Associate Professor of Arabic and Islamic Studies at Georgetown University, received her doctorate from Yale University. Her scholarship investigates the articulation xi

List of contributors

of the religious sciences of Islam in their historical, social and political environment, focusing on Islamic law. In addition to tracing the intellectual history of the concept of public interest (maslaha) and the purposes of the Shari’ah (maqasid al-Shari’ah) in pre-modern and modern times, her publications address authority construction within schools of law, legal change, and whether or not a ‘reformation’ has occurred in Islamic law. Amr OSMAN (PhD Princeton University, 2010) is Associate Professor of Islamic History in the Department of Humanities at Qatar University. His research interests include the intellectual history of Islam as well as modern and contemporary Arab politics and thought. His first book, The Z ․ a¯hirı¯ Madhhab (3rd/9th–10th/16th Century): A Textualist Theory of Islamic Law (Brill, 2014), examines the history and doctrines of the Zahiri school of Islamic law, engaging with modern scholarship on ‘literalism’ and ‘textualism’. He has written articles in both Arabic and English on the history of the redaction of the Qur’an, Muslim theology and political thought, and the relevance of early Islamic history to modern politics in Muslim countries. Intisar A. RABB is a Professor of Law at Harvard Law School and a director of its Program in Islamic Law. She also holds an appointment as a Professor of History and as Susan S. and Kenneth L. Wallach Professor at the Radcliffe Institute for Advanced Study. She has published on Islamic law in historical and modern contexts, including the monograph, Doubt in Islamic Law (Cambridge University Press, 2015), the edited volumes, Justice and Leadership in Early Islamic Courts (with Abigail Balbale, ILSP/HUP, 2017) and Law and Tradition in Classical Islamic Thought (with Michael Cook et al., Palgrave, 2013), and numerous articles on Islamic constitutionalism, Islamic legal canons of constructions, and the early history of the Qur’anic text. She holds a BA from Georgetown University, a JD from Yale Law School, and an MA and PhD from Princeton University. Lena SALAYMEH is Associate Professor of Law at Tel Aviv University. Her scholarly interests are Islamic law, Jewish law, legal history, critical legal historiography and critiques of secularism. Her book, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge University Press, 2016) explores how historiography can illuminate Islamic legal beginnings with case studies on prisoners of war, circumcision and wife-initiated divorce. The book received the 2017 American Academy of Religion Award for Excellence in the Study of Religion, Textual Studies. Her other publications deal with the relationship between Islamic law and Jewish law, as well as issues of law and religion in modern secular states. Salaymeh serves on the editorial board of Law and History Review. She was a visiting professor at École Pratique des Hautes Études. She earned her PhD in Legal and Middle Eastern History from UC Berkeley and her JD from Harvard Law School. Irene SCHNEIDER is Professor of Arabic and Islamic Studies at Göttingen University (­Germany). Her fields of interest are Islamic law (especially family law, penal law and pubic law) in contemporary Muslim states (Morocco, Egypt, Palestine, Iran and Afghanistan); history of Islamic law; state and civil society in Muslim states; and gender studies and Islam in Europe and Germany. She is the author of Women in the Islamic World (Markus Weiner, 2014) and The Petitioning System in Iran: State, Society and Power Relations in the Late 14th/19th Century (Harrassowitz Verlag, 2006) as well as of a wide range of articles on different topics. She is currently fellow at Wissenschaftskolleg Berlin (2018–2019).

xii

List of contributors

Delfina SERRANO RUANO is PhD Tenured Researcher at the Spanish National Council for Scientific Research (CSIC). She specializes in the history of Islamic law. In 1999 she published a Spanish translation and study of Madha¯ hib al-h․ukka¯ m fı¯ nawa¯ zil al-ah ․ka¯ m, a collection of legal cases compiled by the 12th-century Ma¯ likı¯ jurist Muh․ ammad b. `Iya¯ d․ . This collection reflects the activity as a qa¯․d¯ı and as a mufti of the author’s father, `Iya¯ d․ b. Mu¯sà (Ceuta 1083-Marrakech 1149 CE) who is better known for his Kita¯ b al-Shifa¯ ’, a seminal biography of the Prophet Muh․ ammad. She has also edited a collective volume on Cruelty and Compassion in Arabic and Islamic Literature (Madrid: CSIC, 2011). Results of her work have appeared in both Spanish and international academic journals like Al-Qantara, Islamic Law and Society, Der Islam, Hawwa, Bulletin d’Études Orientales, Revue des Mondes Musulmans et de la Méditerranée and Journal of Middle East Women’s Studies. Ayman SHABANA is Associate Research Professor at Georgetown University’s School of Foreign Service in Qatar. He received his PhD from UCLA, his MA from Leiden University in the Netherlands, and his BA from al-Azhar University in Egypt. His teaching and research interests include Islamic legal and intellectual history, Islamic law and ethics, human rights and bioethics. He is the director of the Islamic Bioethics Project, which has been supported by three consecutive grants from Qatar National Research Fund’s National Priorities ­Research Program. In 2012 he received the Research Excellence Award at the Qatar Annual Research Forum and during the academic year 2013–2014 he was a visiting research fellow at the Islamic Legal Studies Program at Harvard Law School. He is the author of Custom in Islamic Law and Legal Theory (Palgrave Macmillan, 2010) in addition to several academic journal articles, which appeared in Islamic Law and Society, Oxford Journal of Islamic Studies, Zygon: Journal of Religion and Science, Hawwa: Journal of Women of the Middle East and the Islamic World, Religion Compass and Medicine, Health Care and Philosophy.

xiii

Notes on transliteration

The transliteration system used in this Handbook is the one followed by International Journal of Middle East Studies.

xiv

Transliteration Symbol

Letter

ʿ

‫أ‬

b

‫ب‬

t

‫ت‬

th

‫ث‬

j

‫ج‬

h․

‫ح‬

kh

‫خ‬

d

‫د‬

dh

‫ذ‬

r

‫ر‬

z

‫ز‬

s

‫س‬

sh

‫ش‬

․s

‫ص‬

Notes on transliteration

d․

‫ض‬

․t

‫ط‬

․z

‫ظ‬

ʾ

‫ع‬

gh

‫غ‬

f

‫ف‬

q

‫ق‬

k

‫ك‬

I

‫ل‬

m

‫م‬

n

‫ن‬

h

‫ه‬

w

‫و‬

y

‫ي‬

For long vowels: a¯

‫ا‬

u¯

‫و‬

¯ı

‫ي‬

Notes •

All technical terms from languages written in non-Roman alphabets must be italicized and fully transliterated with diacritical marks (macrons and dots), for example, qas․¯ı․da. A technical term is defined as a word not found in Merriam-Webster’s Collegiate Dictionary or a multiword phrase, excluding titles and proper nouns.

xv

Notes on transliteration

•

•

•

• •

• • •

• • • •

xvi

Words that are found in Merriam–Webster’s should be spelled as they appear there and not treated as technical terms. These words become common to English readers. They should have no diacritics, nor should they be italicized—for example, imam, mufti, jihad, shaykh, ʿulama. Diacritics should not be added to personal names, place names, names of political parties and organizations, or titles of books and articles. These words should be spelled in accordance with the IJMES transliteration system but without diacritics. However, ayn and hamza should be preserved in all these cases, and should be clearly distinguished from one another. Personal and place names with accepted English spellings should be spelled in accordance with English norms, for example, Yasir Arafat, Baalbek, Damascus. This rule applies to cities of publication in citations. Follow English capitalization rules for transliterated titles; capitalize all major terms, but not articles, prefixes, coordinating conjunctions, or prepositions. Use italics to indicate a book, newspaper, or periodical. Do not add diacritical marks, but do preserve ʾayn and hamza (except for initial hamza, which is dropped), for example, Faysal al-Tafriqa bayn al-Islam wa-l-Zandaqa and al-Diya ila Sabil al-Mu’minin. “Ta marbu¯t․a” is rendered /a/ not /ah/, except in Persian, where it should be /ih/. In Arabic id․a¯ fa constructions, it is rendered /at/. The feminine nisba ending is rendered /iyya/ (iyyih in Persian). Inseparable prefixes in Arabic are connected with what follows by a hyphen: bi-, wa-, li-, and la-. When one of these prefixes is followed by al, the /a/ will elide, forming a contraction rendered as wa-l-, bi-l-, li-l-, and la-l-. The definite article al- is lowercase everywhere, except when it appears as the first word of a sentence or endnote. When an Arabic name is shortened to just the surname, the al- is retained; for example, Hasan al-Banna becomes al-Banna. Connectors in names— such as bin, ben, abu, and so forth—are lowercase only when preceded by a name, e.g. Osama bin Laden, but Bin Laden, Ibn Khaldun. Exceptions for the IJMES transliteration system due to common Arabic convention are Shariʿah, ayah, Sunnah, Surah, Salah, Zakah, Ummah.

I

Approaches and the state of the field Ahmad Atif Ahmad, Editor

The editors of this volume are comfortable acknowledging that, since it is not the first, this is ‘one more’ survey of scholarship in the field of Islamic law and jurisprudence. The editors are also comfortable claiming that this volume is a corrective to omissions and imbalances in existing publications in the field and an attempt to nuance its common interpretive lenses. The term used to indicate our study field in the title (Islamic law), bowing to the conventions of anglicization and academic practice, must be taken as a shorthand, pointing to an old and living tradition of jurisprudence, religious and political laws, ethics and socialization. At the hands of today’s academics, it is a subject, or a set of subjects, with a large number of entanglements. This volume’s explicit aim is to cover Islamic law’s multiple connections with the hope that the reader will be able to take it as a starting point toward a more detailed inquiry of its multiple parts and its intersections with other fields. The volume demonstrates that scholars with interest in Islamic law are clearly interested in much more than Islamic law. The impact of theory-shopping and method-shopping from other fields is considerable. Islamic legal studies scholars do, to put it simply, read outside of their narrow area of specialization. Whether scholars of other fields read Islamic law scholarship to the same extent is another matter. We hope this volume will contribute to an acceleration of interest by non-Islamic law scholars in this complex field that goes by the title Islamic Law.

Approaches and state of the field When seen as ‘law’, what we call ‘Islamic law’ started as something of an academic endeavour in a small number of cities in the second/eighth and third/ninth centuries in the Muslim world. Kufa and Baghdad in Iraq, and Medina in the western end of Arabia, were paramount among the cities. A westward movement allowed cities such as Fustat in Egypt and Qayrawan in Tunisia to make their mark on it, and a movement eastwards added contributors from Balkh in Afghanistan and from Samarqand and Chach (Tashkent since the fourth/tenth century) in Uzbekistan. Islamic law’s authorities also lived in Sicily (where Abu ʿAbdillah al-Mazari (536/1141) grew up), Lisbon, Portugal, (where Ibn ʿAbd al-Barr (d. 463/1071) served as a judge) and Qurtuba, Spain, where some of the greatest lawyer/ philosophers lived. Over a millennium after its inception, Islamic law engaged minds the

Ahmad Atif Ahmad

world over and continues, to date, to assert its status as the ‘common law’ of the Middle East (as Chibli Mallat has it). In its distant and recent history, it interacted with old and new forms of knowledge in areas as far apart as medicine, moral philosophy, economic sciences, history and epistemology, and the sciences of government and modern legal sciences. The diversity of contributors to this volume reflects the diversity of the subject and its potential, as opposed to the particular proclivities of certain authors. The academic field of Islamic law in the Anglophone world, as surveyed by the editors, is too multi-directional to obey simple classification. Some participants in the field elect to provide new interpretations of old institutions of Islamic law. These participants include scholars who commit to the revamping of the Islamic legal tradition or adding to its substance and scholars whose commitments lie outside of the Islamic legal tradition (e.g. in feminist theory, European or American interpretations of human rights, statist, or Marxist or liberal philosophies, among others). Other participants think of the historical doctrines of Islamic law as ‘history’, plain and simple, while their use of modern language pushes them to provide a modern interpretation for their historical material. There are academic contributors to the field who think of ‘law’ in Islam as secondary to piety and religious devotion and those for whom academic philosophy, anthropology and quantitative social science (of various types) ought to govern our discussions of Islam and Islamic law. Furthermore, there are those who are conversant with older (orientalist) European and American scholarship in the field and those who are not. There are, moreover, contributions of ‘interdisciplinary’ postures, not to mention many, many others (not represented in this volume) whose interest in Islamic law is either coincidental or tangential. The full extent of representative academic contributions to the field could not be encompassed in one volume. This volume provides adequate representation and aims to reflect the field’s diversity, however. The volume also makes an effort to put side by side contributions by rising and mid-career scholars with those of seasoned scholars whose contributions have already influenced new generations of specialists in the field. The journey of Islamic law as an academic subject in the Anglophone world is long and may by now merit an academic investigation in a separate volume. For our purposes, we note that the field’s recent developments reflect a heightened degree of recognition that the subject has been ‘mistreated’ in the European and American academy, despite good intentions. A scholar of Islamic law today is able, though not all of them do it and not to the same degree, to look at her or his subject unfettered by the ready assumptions of 19th- and early 20th-century modernity that assumed that Islamic law is a relic of earlier times, which has only museum-like relevance in our time. The metaphor of ‘renaissance’ in certain academic subjects often applies to stretches anywhere from 20 years to a century. It is not imprudent to apply this metaphor to studies of Islamic law in the last two decades of the 20th century and the two decades that are about to close in our current 21st century. The current renaissance in the study of Islamic law is evidently not a mere reaction to political events. It arises out of a broader acquaintance with the sources of the subject and attempts to balance earlier approaches that forced the art and science of the law in Islam to surrender to external standards of scrutiny. This renaissance also stands on a broadening of the field’s scope to attend to genres either underused or badly used in previous studies. Scholars of the field now draw on sources of political and social history, Arabic, Persian and Turkish literature that covers law amidst society, aesthetics, philosophy, and practical knowledge of crafts, maps and information on medieval city planning, agriculture and masonry, medicine, cosmology and mathematics. This collection of 26 chapters is written from different stances and spans multiple styles. Some chapters are clearly experimental, and others are more traditionally reflective of 2

Approaches and the state of the field

existing scholarship. Some authors think of their work as ‘innovative summary’ of the standard works, and others see it as a personal commentary. The Handbook is certainly not an encyclopedia or a dictionary with the promise of repetitions and recapitulations of the existing literature. Authors reference their work in a manner approporiate to the literature with which they are conversant. This involves endnotes, bibliography lists reflecting the sources of their material and/or further reading lists. In choosing representative contributions to this Handbook, the editors considered the nature of the field of Islamic law as the editors understand it, as juxtaposed to existing practices of scholarship in that field. Islamic jurisprudence, the art of legal reasoning and explanation, is the able, invisible hand behind any legal doctrines in Islam, and ‘personal responsibility’ and the ‘nexus of worshipper and worshipped’ are at the heart of what distinguishes this ‘Islamic law’ from all laws today. Abou El Fadl starts this volume with an introduction to the key concepts and institutions of Islamic law, and in this context, he wrestles with the foundational question of what type of law is Islamic law. Abou El Fadl contends that Islamic law is not simply a set of normative commandments but a deliberative method of applied practical reasoning. Fundamentally, Islamic law is an interpretive method of investigating the ways that the Divine Will applies to the living interests of human beings. After this introductory chapter to Islamic law as a field and discipline, the Handbook is divided into four sections. The first section of this Handbook covers some of main themes of jurisprudence and ethics, impressing upon the reader this law’s basic connections with concepts of ‘nature’, God as both a source of his creation and simultaneously high and above it, and the main entanglements of reason, natural law and obligation in this world and the next. After this section, the Handbook attends to a simple tripartite formula: The law in Islam is a product of scholars ( jurists), applied in societies, affected by politics within and without society, and, finally, responsive to state power. Despite overlaps among these areas, the volume’s chapters are organized, according to this understanding, under four categories: 1) 2) 3) 4)

Jurisprudence and ethics History and interpretation: scholars History and interpretation: society and politics State and power

The Handbook’s chapters Part I The first of the volume’s four divisions addresses an aspect that distinguishes Islamic law from many comparable systems of law and moral instructions. This aspect encompasses debates in jurisprudence on the nature of religious, legal and moral commitment in the Islamic tradition. Standing on a nexus between human nature, on the one hand, and moral and religious obligation, on the other, obligation for believing Muslims has implications in this world and the next. It appeals to an understanding of God as a lawgiver and a holder of rights, while remaining distinct from His creation. Whether ‘divine command’ theory and ‘natural obligation’ theory is adequate to explain the nature of Islamic reasoning is an open question for one of the volume’s contributors. Ahmed Izzidien opens this section with an inquiry that makes two steps, rather than one step, backwards from legal reasoning (hence not standing at the door of theological inquiry, but) moving toward an earlier inquiry, that of first philosophy, where a human may 3

Ahmad Atif Ahmad

wonder what, where and why: What is this world; where is it; and why am I in it? This first substantive chapter directs the reader to an often forgotten side of Islamic law as a law that ties itself to the experience of a believer, rather than an individual subject, an emancipated citizen, or a globetrotter. The author moves from epistemology to natural philosophy, forward to ethics and the tenets of conscience, and backwards to doubt and reaffirmation. At the level of this inquiry, some readers may think that we are at the gates of sufism or natural philosophy. We can also think with Kalle Taneli Kukkonen, that these gates are the same or proximate gates, as we note that Ibn Tufayl, the author of Hayy ibn Yaqzan (Living, Son of Awake), cited Ibn Sina’s Eastern Wisdom as a model for the argument for the unity of knowledge of God, nature and the self (Kukkonen, Ibn Tufayl, Oxford: One World, 2014). The opening essay is, indeed, a caution against academic separations of these areas of inquiry. Four more chapters in this opening section will confirm the thought of interrelatedness. Following this is a chapter by Wael Hallaq, who meditates on the concept of God’s rights – a complex concept rarely dissected with erudition. Hallaq tackles what it means to contemplate ‘harm’ to God – the one Being unaffected by the conditions to which the law applies. If God is out of an equation of the law, it is no longer Islamic law, however. This puzzle occupies the chapter’s author, reaching what is close to a satisfactory resolution only when we realize that the modernity-imprisoned mind that keeps looking for equivalents for God’s rights (in state rights, group rights, collective rights) and fails to see the rich threefold nature of of ․haqq (Arabic for truth, right and God) will most likely need to be trained to suspend many of its judgements for a fruitful engagement with the world of Islamic law. Omar Farhat aims to provide what he takes to be an accurate, though in our eyes creative, interpretation of how ‘obligations’ ought to be understood in Islamic legal reasoning. His contribution, ‘Balancing this world and the next: obligation in Islamic law and jurisprudence’, strongly emphasizes the role of legal reasoning and directly addresses ‘obligation’ without confining it to considerations of politics, social standards, or national and transnational institutions. For Farhat, the interest of humans is considered simultaneously against the need both for order in an ethical and spiritual world and a universal teleology of humanity and life. This complex consideration explains the central notions of ‘mas․lah․a’ (benefit, utility, the common good) – about which we hear later when the purposes of the law are discussed in the second division of the volume – as well as ties us back to Izzidien and Hallaq’s view of the role of the divine in ascertaining the humanity of the human being. The fourth of this section’s chapters is an ambitious treatment by Mariam al-Attar of whether divine command theory (DCT) and natural law explanations are adequate tools to understand obligation in Islamic jurisprudence. Attar’s answer is in the negative. This chapter alerts the reader to how similarities between Islamic law and jurisprudence, on the one hand, and other legal and moral systems, on the other, are not limited to modern views. Islamic law is easily the oldest current, functioning legal tradition in today’s world (and if one bows to the notion that Roman law is still alive today, it would be the second oldest). In its long journey, Islamic law compared and contrasted to other (ancient, medieval and early modern) systems of law and ethics. The notion of ‘submission’, often seen as an equivalent to ‘Islam’ itself, is explained here to show many rough edges. A Muslim submits to God, the world’s nature, and his or her own nature in one act. This rich position leaves external attempts at explaining ‘obligation’ in an Islamic world order bound to be inadequate. Leaning toward a modernization of the existing Islamic jurisprudence, Attar suggests that it be moved closer to social explanations and liberated from human-divine postures. On principle, the editors leave this stand as it is, referring the reader to their own writings to allow her or him to 4

Approaches and the state of the field

identify points of overlap and comparisons between the editors’ own views and those of the authors of this collection. A practicum concludes this first section, one that considers both pre-modern and modern contributions by Muslim jurists to the dilemmas of ‘bioethics’. Ayman Shabana starts this chapter by emphasizing the modernity of the term (bioethics) and its open-ended character. At the bottom of the analysis is a recognition that medicine offers: 1) the potential of overcoming some of nature’s vagaries and defects as it applies to the human body; and 2) a paradox for the human intellect, which recognizes that humans are not well-positioned to heal other humans on their own. In practice, all know that medicine fails even as it succeeds, but the human weakness and hope for an amelioration of their condition and a removal of their physical suffering conspire to make them ready to bow to medicine’s authority at all moral and spiritual cost. Islam does recommend medicine and applauds its practitioners, but it is also mindful of its limits. Shabana views the proliferation of fatwas on bioethics as a welcome addition to the texture of an already rich field. His chapter wraps up one of the field’s pillars (the personal side in Islamic law) and segues to the next division, which covers the authorities of Islamic law, shifting the volume toward a historically and theoretically bent presentation of Islamic law’s scholars.

Part II Recognizing the simple fact that the Qurʾanic revelation and the Prophet’s example were the umbrella under which Islamic law operated, the rubric ‘History and interpretation: scholars’, opens with a chapter on how the two textual sources (Qurʾan and Sunnah) were addressed by the authorities of the law in its early days. In this chapter, Amr Osman provides a complex treatment of how these texts could be both a good starting point and often a misleading indicator of what the law is from certain jurists’ viewpoint. This chapter is followed by Labeeb Bsoul’s treatment of the schools of law, the madhhabs, also focusing on their early beginnings and characteristic qualities. Delfina Serrano Ruano’s chapter on ‘Qadis and muftis’ follows these two contributions, providing a description of institutionalized authority in society that both relied on the authority of the schools of law, discussed by Bsoul, and asserted its commitments to the values instilled in the textual sources discussed by Osman. Ruano, however, makes an extra trip away from the judges and muftis (producers of the law) themselves in the direction of describing the evolution of the institutions of adjudication and ifta¯ʾ. It becomes clear that judges and muftis played the double role of being community leaders and conflict resolution experts as well as functionaries of the pre-modern states in which they lived. Ruano also allows a few descriptive comparisons between these institutions in pre-modern times and their equivalents in the modern centuries. In two chapters, titled ‘Consensus’ and ‘Superior argument’, Ahmad Atif Ahmad attempts to cover juristic agreement and disagreement from multiple angles. Ahmad understands consensus to be a tool to establish a core for juristic knowledge and conversation. Scholarly consensus, by itself, must be taken only as an indication of a presumptively correct response to a human condition, which, when subjected to change, affects the consensus itself. Ahmad also understands disagreement to be natural and a result of human reflection, but he thinks that many modern discourses have exaggerated the value of every individual’s standpoint to satisfy a (mostly theoretical) fear of ‘hegemony’ over the individual. In the real world, there are good and bad arguments. Bad arguments do not stand the test of time. They work for a while, and then they fail. Only arguments that take into account the human long-term need to be reconciled with one another. The discussion in Islamic theoretical jurisprudence of 5

Ahmad Atif Ahmad

tarjı¯․h (determining the superior argument) shows medieval jurists’ interest in discussing arguments in a cosmic and universal format, to be distinguished from modern discussions of tolerance and consensus-building in a purely pragmatic worldview. Employing a strict historicist approach to the subject, a classic presentation by Felicitas Opwis of the question of ‘the purposes of the law’ – the maqasid – in the Islamic tradition follows. Professor Opwis is an erudite scholar, combining early training in Germany and a subsequent training and long career in the United States, who is engaged with both the European and American scholarship in Islamic law. She is also a close and attentive reader of medieval and modern Arabic juristic texts. In her presentation, she aims at a faithful interpretation of both the pre-modern and modern conceptions of the purposes of the law in Islam, uncovering how the social, the political and the organizational elements of the law are always in the background of legal reasoning. Ahmed Fekry Ibrahim then attends to the question of jurists’ disagreement and legal pluralism. While his chapter touches on the role of state and power and their influence on legal reasoning, his focus remains ‘the scholars’ who are simultaneously the producers of the law and their internal critics. This chapter’s themes overlap with the earlier chapter on ‘superior argument’, but Ibrahim’s treatment considers theological and epistemological commitments of jurists from the angles of public knowledge and addresses a reader who inhabits the modern view of pluralism and takes it more seriously. In the next chapter, Intisar Rabb discusses a central aspect of the legal reasoning of scholars, the formulation of legal canons. Like canons of statutory constructions (discussed, for example, in Theodore Crawford’s The Construction of Statutes), these canons are abstract, generalized principles that are supposed to aid the scholar in devising laws. Unlike these canons, however, legal canons in Islamic legal reasoning are ‘reductive’ statements of aggregated legal doctrines and hence subsequent to legal doctrines (even though they are employed by new jurists as points of entry to legal reasoning). Islamic legal canons are also considered only ‘generally true’ – allowing room for exceptions to attend to what distinguishes aberrant and grey-area cases. This rich section is concluded with a contribution by a veteran scholar of Islamic law, whose early work on the 13th-century Maliki Cairene, Qarafi, examined the connections between scholars, public and social knowledge, and the state. His contribution to this volume is a dialogue with the presumptuous posture of enlightenment, ‘reason’, and an assessment of the negative cost it inflected on the Islamic legal tradition in its modern incarnation. Jackson makes a forceful argument for the right of the Islamic legal tradition, seemingly taken for granted by other philosophical and religious traditions, to understand its basic tools, such as reason, meaning and view of the world and its priorities, without having to make constant efforts to meet others halfway.

Part III Just as there would be no Islamic law without its scholars, there would be no law without a society that accepts, and at times, resists and complements the work of the law’s scholars. Islamic law appeared in diverse societies across a vast array of historical moments. This third section of the Handbook starts with the societies that hosted Islamic law’s beginnings. In what environment did Islamic law take its early forms? asks Lena Salaymeh, providing a panoramic overview of controversial possibilities of what traditions or sets of ideas and practices ‘influenced’ Islamic law or, in the writing of some scholars, shaped its parameters from the start. Salaymeh’s early work has argued that identifying a Near Eastern (social, moral and 6

Approaches and the state of the field

political) context modifies the question of influences into a more sophisticated and meaningful inquiry about the law’s early environment. The historical depth of this environment covers ancient Egyptian, Persian and Mesopotamian (Hamurabi’s code, most famously), Greek, Syriac and Roman traditions as well as the more communal and less geographically dominant Jewish law. The Islamic tradition of theoretical jurisprudence (us․u¯l al-fiqh) has preserved early discussions about the sense in which Islamic law is meant to incorporate earlier practices of religious traditions that Islam as the final revelation is meant to scrutinize and complement (according to a religious doctrine Muslims have). This question, addressing the authoritativeness of the laws of those who came before (sharʿu man qablana¯ ), leaves to us non-controversial practices such as animal sacrifice in the time of pilgrimage as well as practices about which jurists disagreed, such as whether the length of a hiring contract may be left undetermined until a later stage in the hiring. Ayman Shabana then provides a history-conscious, yet broadly theoretical, treatment of how social laws are considered as part of the Islamic legal tradition. It may be surprising to many to learn that Muslim legal theorists and theologians thought about parallels between natural and social laws, or laws of nature and laws of social interaction, and measured both against what they took to be stable norms of Islamic law. Shabana offers cases and legal scenarios from the formative period of Islamic law, modern time, and times in between. His chapter, overall, prepares the way for the subsequent four chapters, which cover the questions of war, Muslims living as a minority, family law, and modern reflections on males and females in legal and moral life in Islam. If Shabana’s chapter covers a Muslim’s interpretation of social and natural laws as the laws of Islam are augmented and developed, Ahmed Al-Dawoody attends to ‘jihad’, a term of unusual misfortune, truth be told. It is in the eye of the beholder, Dawoody exclaims, but it is also a term with a history and a term with connections to other terms, such as jurisdiction and sovereignty. Its simplification, whether deliberate or just an honest mistake of necessity, is a target for the chapter. When seen in the usage of those who bothered to think about it, it is an element of social and political life in Islam. Exercising ‘ jihad’ is both a source of constructive and destructive energy. It is, in any case, much more than its common understanding permits and much less of an unusual practice among nations that live with a moral code. The commonality of ‘emigration’ – reckoned to be an exception rather than a rule – prompts Said Hassan to attend to what came to be called ‘ jurisprudence for minorities’. A strong strand in the pre-modern Islamic legal tradition (not limited to Hanafi jurists) acknowledged that a Muslim’s life as a minority could not be burdened by the same expectations given to a Muslim living among a normal, Muslim community. In an age of global shifts, tosses and turns, drawing on the old tradition became a necessity, rather than a luxury, in order to provide new norms for a large number of Muslims now living without the standard support of social networks and Islamic mores. New limits are now imposed on geographical borders (important for the abodes theory, where the world is divided based on moral Muslim norms and government support for them) and even modern (17th–20thcentury) notions of territoriality. This chapter allows the reader to understand Islamic law’s treatment of a subject, which is bound to appear mysterious to a (Weberian-type) spectator with no comprehension of how Islamic legal reasoning built its own limits to allow itself to function without breach to reason and practical considerations. Irene Schneider and Ziba Mir-Hosseini, to conclude this section, investigate family law and male–female interaction under the umbrella of Islamic law past and present. These two chapters allow the reader to juxtapose different versions of justice, equality, what is practical and what it not in human affairs, and the frictions of ideals and realities. The chapters also 7

Ahmad Atif Ahmad

point to an inevitable limitation that accompanies ‘Islamic law’ as a discourse and as a human exercise. The producers of the law are, from an important and neglected angle, not that different from the practitioners of medicine whose limitations are brought to relief by the theologians and the scholars of the law. That is, jurists will simply fail to diagnose and prescribe to human nature to fulfil its social potential the way medical doctors fail to address the human body’s need for a full life. These two chapters conclude the third section, leaving the final section to a discussion of ‘state and power’.

Part IV This last section begins with an experimental chapter by Ovamir Anjum, cutting to the bare chase of the questions of authority in Islamic political life. Anjum’s chapter reflects a double investment, one in modern sociological approaches to questions of power and one in a textualist view of Islamic law that harkens back to its revelatory and prophetic elements as recovered by moderns. This chapter does remind readers who follow the volume’s progression of links between the sources of the law and political theory and practice and between the pre-modern traditions’ richness and attempts to capture it and absorb it in a limited number of principles and maxims. Amirhassan Boozari then provides a view of the state in the modern shiʿi experience, which not only built theoretical temples of possible Muslim nation-states, but provided one of the modern world’s most important political developments, the Iranian revolution of 1979. Boozari argues for a cooperativist view of modern Shiʿi law and politics that blends law and political authority in a clearly modern sense. This is a sense that is thus far unknown in the Sunni world, which mostly knew of competitions between traditionally trained scholars, political Islamists, and those on a broadly modernist spectrum. The relationship of the jurist (qadi, mufti or a holder of any other public wilaya¯ or jurisdiction) and government is a central theme in this section, starting from Amirhassan Boozari’s chapter onwards. Guy Burak’s scholarship endeavours to resolve a historical puzzle: Why do the boundaries between the two institutions of ‘judges’ (or qadis) and ‘muftis’ – as inherited in the modern centuries – seem uneven and at times unclear in certain geographic regions. His research took him to the early modern centuries and especially to the Ottoman world. His chapter, ‘Codification, legal borrowing and the localization of “Islamic law”’, considers codes of law (articulations of what the law is in abstract and concise language to be used by judges and law-enforcement bodies), reckoned to be a modern phenomenon unknown in medieval Islamic law, also tracing these codes to premodern origins. His work bears the quality of restraint and economic description on which historians pride themselves. In the next chapter, Andrew March provides an account of Islamic constitutional reasoning at the heart of reflections about the modern state in the Muslim world. He argues that this area was clearly ripe for creative treatments by reformers and state functionaries all the same. Reconciling ‘nation’ with a worldwide Muslim community is the central question. It is not that either state power or even aggression (internal or external) was unknown in premodern Islamic history. What is new, rather, is Muslims’ appropriation of a European satisfaction with identities below that of a multi-ethnic or regional Christendom (Christendom has never been global). This pushed Muslim political theorists, from Mawdudi (d. 1979) to the contemporary Ghannushi (b. 1941), to ask whether a Muslim nation state can function within the parameters of a worldwide Muslim unit, or whether this unit itself needs to be questioned or discarded.

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Approaches and the state of the field

Mohammad Fadel moves us closer to our recent moment as he takes up the Arab Spring and attempts a theoretical and historical interpretation of the notions of ‘political state’ and ‘legitimacy’ in political order in our ambiguous global condition encompassing many (either) failed or failing national entities. This chapter asks: What kind of new beginning should be expected for political and constitutional reasoning in the Muslim world today? Will reconciling the tenets of liberalism with those of paternalist, value-laden views of community be possible? In the context of a contained community with identifiable borders, Ahmed Al-Dawoody attends to how ‘destruction’ (of human selves, property and freedom) is punished by the law in the particular case where threats to human safety itself accompanies the destruction. The much-abused term ‘terrorism’ is employed in this chapter to cover what Muslim jurists term ‘h․ira¯ ba’, or (if attended by cessation) ‘baghy’ or (if attended by a declaration of the rejection of the tenets of Islam ‘ridda’. Both premodern views of the subject and recent resolution by ‘fiqh academies’ are covered. While these four categories evolved out of a prior plan the editors devised, they reflect choices the contributors made, which the editors found to be reflective of broader trends in academic scholarship in the field. Classifying the chapters also took the author’s orientation and specific contribution as a starting point for classifying it, rather than work to force each contribution into a ready straight jacket. Each contributor’s specific goals are preserved in her or his chapter, while the chapters, collectively, make up an overall architecture the editors approve for a volume intended to function as a reference book. Many contributors avail themselves of opportunities of ‘method choice’ and ‘interdisciplinary outlook’. These are important factors in situating each contribution and understanding its function. Reading any tradition with a focus of any type does always jettison other foci. This is another recommendation to consider this volume as something much more than the sum of its parts. Each contributor was asked to observe the standards of due diligence and offer his or her own view of their subject. The resulting collection is presented with the promise that it will not be uni-dimensional, ideological or lacking in breadth of scope.

Audience This Handbook should be useful to advanced undergraduate students in the humanities and social sciences whose academic focus overlaps with the subject(s) of Islamic law as well as students of law schools who are similarly interested in Islamic law, Islamic jurisprudence and modern law in Middle Eastern and Muslim countries. It also clearly fills a gap experienced by graduate students in many academic fields who are unable to consult Islamic law’s primary sources and those graduate students who are considering specializing in the field or fields of Islamic law. For more advanced students or scholars, the Handbook provides a review and an overview of the field from actual examples of contributions by its practitioners. The material in the Handbook may be serviceable as reading material for different college and university courses.

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II

What type of law is Islamic law? Khaled Abou El Fadl, Editor*

What is Shariʿah? What is Islamic law? As we will see, these are two very different questions, but for now let us assume that these two questions substantially overlap. By asking this, I do not mean what are the rules of Shariʿah or Islamic law, nor am I referencing the constituent sources of each. More fundamentally, the question is, what kind of law is Shariʿah law or Islamic law? In one view, Islamic law represents ‘an extreme case of jurist’s law’, the product of strict casuistic thinking that had little to do with reality, and thus, one can conclude it is not law at all.1 However, this view has been thoroughly refuted and can no longer be taken seriously.2 But in another view, Islamic law is a relatively recent colonial invention. As Baudouin Dupret puts it: ‘The idea of transforming Islamic rules into law and, particularly, codified law is the result of an invention rooted in European intervention on the Muslim scene’. 3 Dupret means to say that while Shariʿah represented an Islamic normativity, the rules enunciated through the practice of fiqh did not represent law in the positivist sense of the word. Colonial European powers and their native collaborators projected a very particular cultural paradigm onto the Muslim tradition by inventing the very concept of Islamic law. Thus, per this view, the very idea of Shariʿah as Islamic law is a recent Orientalist invention of the 18th and 19th centuries that was embraced by Muslim natives because of the pervasive influence of colonial powers upon Muslim cultures.4 I agree that Shariʿah does represent what may be described as Islamic normativity. I will return to this point later. I also agree that rather than treating Shariʿah as a practised discipline of deliberative and purposeful practical reasoning, colonial powers reduced Shariʿah to a code of duties and obligations that had a largely corrupting influence upon the way that the Shariʿah was understood and practised for centuries. Although the reduction of Shariʿah normativity to a code-like set of dos and don’ts might have been instituted by colonial powers for entirely materialistic and pragmatic reasons, one cannot underestimate the impact of home-grown puritanical movements upon the ways that Shariʿah law is understood and perceived in the world today. In the post-colonial period, most contemporary Muslim countries adopted either the French-based civil law system or some version of the British common law system and limited the application of Islamic law to personal law matters, particularly in the fields

Khaled Abou El Fadl

of inheritance and family law. In addition, in response to domestic political pressure, several Muslim countries in the 1970s and 1980s attempted to Islamize their legal systems by amending commercial or criminal laws in order to make them more consistent with purported Islamic legal doctrine. The fact remains, however, that the nature of the connection or relationship of any of these purportedly Islamically based or Islamized laws to the Islamic legal tradition remains debatable. As discussed further below, even in the field of personal law, where the supremacy of Shariʿah law was supposedly never seriously challenged, let alone the various highly politicized efforts at legal Islamization, Islamic legal doctrine was grafted onto what structurally and institutionally, as well as epistemologically, were legal systems borrowed and transplanted from the West. Practically in every Muslim country, the complex institutional structures and the processes of the Islamic legal system, especially in the 19th century, were systematically dismantled and replaced, not just by Western legal systems but, more importantly, by the legal cultures of a number of Western colonial powers. Assertions of disembodied Islamic determinations or rules in the modern age without the contextual legal processes, institutions and epistemology, and in the absence of the legal cultures that generated these determinations in the first place, meant that the relationship between contemporary manifestations of Islamic law and the classical legal tradition remained problematic. The reduction of Shariʿah law to a set of codified positivist commands enacted by a human legislative body is so at odds with the nature of the inherited classical legal tradition to point that some scholars argued that modern codified law is not Islamic law at all. Most notably, Wael Hallaq argued that the modern nation-state with its centralized ruling apparatus and institutions mandating human legislative supremacy is inconsistent with the very nature of Islamic law. 5 According to Hallaq, the rise of the modern state with its reliance on codified law and statutory legal systems has been the virtual death knell of Islamic law.6 What Hallaq means is that classical Islamic law enjoyed a discursive and pluralistic nature. Quintessentially, the classical legal system premises itself on negotiating the relationship between the Supreme Divine legislator and the human agent. In the modern state, law is deterministic and positivistic in that obedience to the law is not premised on proof and persuasion but on sovereign command and compulsion, and thus, modern state legal systems are fundamentally inconsistent with the epistemological foundations of the classical Islamic legal system. Whether it is correct that any attempt to adopt Islamic law in the context of the modern nation-state is such an incongruent distortion that is bound to fail, remains an open question. Of course, there is no reason to assume that Islamic law cannot structurally evolve so that it can indeed adapt to the modern nation-state. Arguably, Ottoman imperial law as well as modern Iranian law are forms or types of Islamic law, although both examples exist in considerable tension with the classical tradition.7 However, there are two significant qualifications that one must note at this juncture: first, whether modern nation-state law, with its attendant centralized bureaucratic apparatus, is the ‘ruin’ of Islamic law depends on how one understands or defines the very phenomenon of law – let alone how one understands the very word Islamic. Second, as discussed below, the issue of the so-called ruin of Islamic law in the modern age assumes that the only real law is the law applied by the state. Put more directly, can Islamic law exist in the modern age outside the provenance of the state? Can Islamic law exist in the modern age as a voluntary institution and still be considered law? The answer to this brings us back again full circle to the issue of what is law, and more specifically, what kind of law is Islamic law?

12

What type of law is Islamic law?

Whither Islamic Law? Ebrahim Moosa contends that: The very idea of ‘Islamic law’ is, in many ways, a misnomer. While classical jurists ­( fuqaha¯ʾ) adjudicated everything from prayers and fasting to war and trade, it is uncertain whether they were engaged in law-making as we understand law today. It would be more accurate to say that they were engaged in identifying norms derived from teachings inspired by revelation as well as the experiences of the early Muslim communities, and in describing how these practices translated into the realities of their own societies. Moosa goes on to suggest that we ought to think of ‘Islamic law as an enterprise in ethics’.8 One suspects that what motivates this kind of argument is the desire to make Islamic law less binding and mandatory in the modern world – in other words, the desire to open up spaces for negotiation and discretion in the modern age when dealing with the enormous corpus of Islamic legal adjudications. Although this argument has gained currency among contemporary Muslims, the problem is that if Islamic law is thought of as an ethical enterprise, Islamic legal determinations would become more obligatory and binding, not less so. Theoretically, ethical norms are norms about what is right and wrong and what is good and bad. Hence, instead of being understood as a deliberative process applying practical reasoning in search of the Divine Will, Islamic legal determinations might embody actual ethical norms. Put simply, it is far easier to claim that a specific legal ruling does not apply to a particular set of circumstances due to instrumental reasons than it is to defy or challenge the relevance of ethical norms. Take, for instance, the penalty of severing the hands for robbery or stoning for adultery. Are these penalties functional instrumentalities of law, or are they ethical norms about what is good and moral, and what is bad and immoral? But as we encountered with Dupret and Hallaq, Moosa’s argument hinges on how we understand and define law. The above-mentioned authors, as well as many others, base their arguments on the unspoken assumption that modern law is necessarily positivistic – that law is the command of the sovereign backed up by the threat of the use of force. Although contemporary authors rarely expressly explain what they mean by the expression ‘modern law’, one can reasonably speculate that they understand modern law in strict positivist terms. In their estimate, law and its authority are seen as source-based. Meaning, the validity of legal norms depends on the sources determined by a social community’s rules and conventions, and not moral values or ethics. Law is as if a closed system in which there are rules of recognition for identifying valid law, and this valid law is necessarily enforced by the state. The challenge is that this vulgar form of exclusive positivism does not accurately describe the phenomenon of law. This Austinian positivist understanding of law is grossly outdated and has long been abandoned by most positivists. Even the most staunch proponent of exclusive positivism today recognizes that law is a far more complex phenomenon than first described by John Austin in his classical command theory.9 To be clear, I do not necessarily disagree with Dupret, Hallaq, Moosa and similar writers, I am simply noting that one cannot claim that Islamic law is not law unless one first clarifies and defends their conception of law. What is often described as exclusive legal positivism10 is not the only possible understanding of modern law, and to assume that it is, forces one to think in terms of the binary division of either law or ethics. To describe Islamic law as a set of norms, but not law, does not add clarity. Norms is a conveniently ambiguous term that could mean practically anything.

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In theory, one is not confined to the choice of Islamic law as either an exclusivist positivist enterprise or not law at all. For instance, one can wonder whether Islamic law is best understood as a teleological natural law concept, most notably in its Thomistic sense.11 This is often described as a voluntarism in which something is good or bad, and something is morally required or not, because God has commanded that it be so. However, most natural law theories are aspirational in nature, in which the validity of law is best understood in terms of its moral objectives, such as justice or reasonableness.12 As will be observed below, Islamic law does often sound as if it is a teleological project best understood in natural law terms. After all, in Islamic jurisprudential theory, it is elementary that God is just and commands justice. However, we are not limited to either exclusive legal positivism or natural law theory in describing Islamic law.13 In other words, legal positivism or natural law are not the only two possible choices in identifying the nature of a legal system.14 In my view, Islamic law is best described as the process of a practiced discipline of deliberative and purposeful practical reasoning in which rulings are developed primarily through analogical dynamics. Before proceeding further and explaining this argument, we must review some of the key concepts of Islamic law.

Nature and purpose of Islamic law The word Shariʿah is derived from the word shar‘, which means, among other things, a way or method. Variants of the word Shariʿah are mentioned in the Qurʾan in a number of instances, among them the following. The expression, sharaʿa lakum, meaning decreed upon you or for you, occurs in a verse that states, ‘God has decreed upon you the same commandment that God has given Noah, and what We have revealed to you is what We had enjoined upon Abraham and Moses and Jesus’ (Qurʾan 42:13). Elsewhere, the Qurʾan uses the expression shirʿatan wa-minha¯ ja¯ , which means a path and a way (law) in a verse stating, We sent to you the scripture with truth, confirming the scriptures that came before it, and with final authority over them: so judge between them according to what God has sent down. And do not follow their whims so that you may deviate from the truth that has been sent to you. We have assigned a path and way (shirʿtan wa-minha¯ ja¯ ). If God would have willed God would have made but a single nation … but compete in good deeds. (Qurʾan 5:48) The word Shariʿah occurs in the context of the expression, sharı¯ʿatin min al-amr, which is usually translated as sure path or mandated path. ‘Now We have set you on a sure path (sharı¯ʿatin min al-amr) so follow it, and do not follow the whims of those without knowledge’ (Qurʾan 45:18). The various ways that the word Shariʿah is employed in the Qurʾan give the connotation of a path to truth, moral law, or perhaps a method that leads to the truth. Linguistically, Shariʿah could mean a pasture, a water spring, or a path of goodness. Shaheen Sardar Ali correctly notes that, in essence, Shariʿah means a flowing stream that brings nourishment, flourishing and life.15 In many ways, the word Shariʿah is well represented by the term nomos or an applied way of life.16 As an essential point of departure, it is important to underscore that in classical jurisprudential theory, the ultimate point of Shariʿah is to serve the well-being or achieve the welfare of people (tah․qı¯q mas․a¯ lih․ al-ʿiba¯ d).17 The objective of Shariʿah is not necessarily compliance with the commands of God for their own sake, rather such compliance is a means to an end, which is the serving of the physical and spiritual welfare and well-being of people. Some 14

What type of law is Islamic law?

classical jurists contended that Shariʿah is but a means to moral virtues ( fad ․¯ı la).18 Ibn Rushd (d. 595/1198), for instance, asserted that Shariʿah is but a means to achieving and promoting particular virtuous norms including spiritual purity (ʿiffa), equity (ʿadl), courage (al-shaja¯ʿa), and generosity (al-sakha¯ʾ). Shariʿah regulation of social norms is founded upon the obligation to do good and avoid evil (al-amr bi-l-maʿruf wa-l-nahy ʿan al-munkar).19 Ibn Qayyim al-­Jawziyya (d. 751/1350–1) contended that: Shariʿah is founded and structured upon wisdom and people’s welfare in this world and the Hereafter. In its entirety, it is justice, mercy, and wisdom, and so any ruling that exceeds justice to injustice, mercy to its opposite, welfare to harm, or wisdom to nonsense cannot be considered a part of Shariʿah, even if it was introduced into it through (faulty) interpretation.20 Of course, statements such as those above only beg the question of whether Shariʿah is best understood as a teleological project, or more appropriately, in terms of an empirical or morally neutral approach. The famous Muʿtazili Shafiʿi jurist al-Qadi ʿAbd al-Jabbar (d. 415/1025) and other Muʿtazili, i.e. rationalist, scholars argued for an objective understanding of justice and morality. Rationalist jurists embraced what became known as the ‘correlation principle’ (ittifa¯ q al-Shariʿah wa-l-ʿaql) between revelation and reason by which they believed that God, the Lawgiver, legislates according to the dictates of reason. ­Actions are intrinsically good or bad (h․asan or qabı¯․h) and are objectively so, and the Lawgiver has committed Himself to legislate according to objective dictates of justice and morality. Some rationalists argued that although good and bad are objectively knowable, human beings are obligated to do good and abstain from doing bad only because God commanded us to do so. Things and actions are intrinsically and objectively good or bad, but they are not normatively so. The actual normative obligation or duty (taklı¯f ) is derived only from God’s command. One can say that there is a natural law tradition soundly anchored in the classical Shariʿah tradition. But it would be difficult to describe Shariʿah in purely natural law terms. As discussed below, a number of Muslim jurists advocated that the demands of Shariʿah be understood in teleological terms – that Shariʿah be interpreted in light of certain moral objectives. However, in terms of the development of Shariʿah as a socio-historical and institutional practice, reason was not used independently from the revealed text. For the most part, Muslim jurists did not justify Shariʿah in purely abstract philosophical terms. Rather, they anchored their authority in the claim of Divine legislative supremacy, and employed reason in the service of Shariʿah. The classical jurists did not use reason in lieu of or independently from the revealed text. They did, however, use reason to deduce canons of interpretation, develop presumptions of law, and navigate the Divine legislative Will in the context of promoting perceived public interests, or even to create equity-based exceptions to the law.21 For the most part, because Muslim jurists functioned within the parameters of a living legal system, they did not feel free to pursue the logic of unfettered philosophical reasoning. Instead, they used reason to negotiate the dynamics of legal interpretation towards the achievement of particular ethical or social policy goals. Reason was utilized in a systematic effort to thread the needle of law through the mechanics of practical adjudications often in the pursuit of particular social policies or moral goals.22 In this sense, Shariʿah was often seen as the nomos (or in Arabic namu¯s) or the correct path to happiness in this world and the Hereafter (t․arı¯q al-saʿa¯ da fı¯ al-dunya¯ wa-l-ʾakhira) – as a way of life discoverable through the application of practical reasoning and deliberative practice. 15

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Classical Muslim jurists reasoned that if law will be made to serve the well-being of people, while at the same time avoiding the pitfalls of the tyranny of human whim or unfettered reason, Divine guidance or direction is necessary and indispensable. Muslim jurists reasoned that God communicates God’s Way or Path (the Shariʿah) through indicators or evidence pointing towards the Divine Will, known as the dalı¯l (pl. adilla). The dalı¯l means the indicator, mark, guide or evidence. In Islamic legal theory, it is a fundamental building block of the search for the Divine Will and guidance. As a sign of God’s mercy and compassion, God created or enunciated numerous indicators serving as guidance to human goodness, well-being (al-h․asan wa-l-maʿru¯f ), and ultimately, the Divine Will. Moreover, God ordained that human beings exert a persistent effort in investigating the Divine indicators, or the evidence of God’s Will (badhl al-juhd fı¯ ․talab al-dalı¯l) so that the objectives of Shariʿah may be fulfilled. Not surprisingly, the nature of the dalı¯l became one of the formidable and formative debates of early Islamic jurisprudence. The most obvious type of indicator is an authoritative text (sing. nas․․s Sharʿı¯ or pl. al-nus․u¯․s al-Sharʿiyya), such as the Qurʾan, but Muslim jurists also recognized that God’s wisdom is manifested through a vast matrix of indicators found in God’s physical and metaphysical creation. Hence, other than texts, God’s signs or indicators could manifest themselves through reason and rationality (ʿaql and raʾy), intuition ( fit․ra), and human custom and practice (ʿurf and ʿada). Functionally, ʿaql or reason meant necessary rational relationships inherent in the laws of creation or nature. Recognition of these rational relationships was very often infused with principles of natural justice. So, for instance, ʿaql included the principle that the law must premise itself on the natural laws of physical causation; the principle that whoever causes damage incurs an obligation to compensate or make whole (wa¯ jib al-d․ama¯ n); the presumption of innocence, and also the presumption that one is free from obligation or duty unless there is just cause or evidence of incurring a duty or liability (al-bara¯ʾah al-­a․sliyyah); the principle that harm or suffering must be removed or alleviated (al-d․arar yuza¯ l); or the interpretive principle that certainty cannot be rebutted by speculation or suspicion (al-yaqı¯n la¯ yuza¯ l bi-l-shak). These among many others were considered foundational principles of law based in reason and natural justice. Similarly, what counted as fit․ra or proper intuition was multi-layered and a rather complicated issue.23 Especially in early Islam, which of these could legitimately be counted as avenues to God’s Will and to what extent, were hotly debated issues. Especially with the increasing consolidation of the legal system after the tenth century, both Sunni and Shiʿi jurists argued that most indicators are divided into rational proofs (dalı¯l ʿaqlı¯) and textual proofs (dalı¯l nas․․s¯ı ). As to rational proofs, jurisprudential theory further differentiated between pure reason, and practical or applied reason. Foundational legal principles and legal presumptions, such as the presumption of innocence or the presumption of permissibility (al-bara¯ʾa al-as․liyya); the presumption of continuity ­(istis․․ha¯ b al-h ․a¯ l); and the duty to apply caution if there is reason to believe a right will be violated (wa¯ jib al-ih ․tiya¯․t) are derived from pure reason infused with principles of natural justice. In Islamic jurisprudential theory, the diversity and complexity of the Divine indicators are considered part of the functionality and suitability of Islamic law for all times and places. The fact that the indicators are not typically precise, deterministic or uni-dimensional allows jurists to read the indicators in light of the demands of time and place. So, for example, it is often noted that one of the founding fathers of Islamic jurisprudence, al-Shafiʿi (d. 204/820) had one set of legal opinions that he thought properly applied in Iraq, but changed his positions and rulings when he moved to Egypt to account for the changed circumstances and social differences between the two regions.24 The same idea is embodied by the Islamic legal maxim: ‘It may not be denied that laws will change with the change of circumstances (la yunkar taghayyur al-ah․ka¯ m bi-taghayyur al-zama¯ n wa-l-ah․wa¯ l).’25 16

What type of law is Islamic law?

One of the most important aspects of the epistemological paradigm upon which Islamic jurisprudence was built was the presumption that on most matters, the Divine Will is unattainable, and even if attainable, no person or institution has the authority to claim certitude in realizing this Will. This is why the classical jurists rarely spoke in terms of legal certainties (yaqı¯n and qat․ʿ). Rather, as is apparent in the linguistic practices of the classical juristic culture, Muslim jurists for the most part spoke in terms of probabilities, or in terms of the preponderance of evidence and belief (ghalabat al-zann). As the influential classical jurist al-Juwayni stated: The most a mujtahid would claim was a preponderance of belief (ghalabat al-zann) and the balancing of the evidence. However, certainty was never claimed by any of them (the early jurists) … If we were charged with finding [the truth] we would not have been forgiven for failing to find it.26 Muslim jurists emphasized that only God possesses perfect knowledge – human knowledge in legal matters is tentative or even speculative; it must rely on the weighing of competing factors and the assertion of judgement based on an assessment of the balance of evidence on any given matter. So, for example, Muslim jurists developed a rigorous field of analytical jurisprudence known as tarjı¯․h, which dealt with the methodological principles according to which jurists would investigate, assign relative weight, and balance conflicting evidence in order to reach a preponderance of belief about potentially correct determinations.27

The sources of Islamic law The critical issue in early Islamic jurisprudence was not the struggle over what role the text ought to play, but more substantially, over the methodologies by which the legal system could differentiate between determinations based on whim or a state of lawlessness (h․ukm alhawa¯ ), and determinations based on legitimate indicators of the Divine Will (h ․ukm al-sharʿ). Recognizing the principal of legislative supremacy, the classical jurists insisted that Shariʿah law is anchored on the twin pillars of the Qurʾan and Sunnah. However, it is important to distinguish the formal sources of law in the Islamic legal tradition from practical sources of law. Formal sources of law are an ideological construct – they are the ultimate foundations invoked by jurists and judges as the basis of legal legitimacy and authority. The practical sources, however, are the actual premises and processes utilized in legal practice in the process of producing positive rules and commandments. In theory, the foundations of all law in Islamic jurisprudence are the following: the Qurʾan, the Sunnah (the tradition of the Prophet Muhammad and his companions), qiya¯ s (analogical reasoning), and ʾijma¯ ʿ (consensus or the overall agreement of Muslim jurists). In contrast to mainstream Sunni Islam, Shiʿi jurisprudence, as well as a minority of Sunni jurists in the particular classical orientations, recognizes reason (instead of qiya¯ s) as a foundational source of law. These four are legitimating sources, but the practical sources of law include an array of conceptual tools that greatly expand the venues of the legal determination. For instance, practical sources include a broad array of interpretive and adjudicative canons including legal presumptions, such as the presumption of continuity (istis․․ha¯ b) and the imperative of following precedents (taqlı¯d); legal rationalizations for breaking with precedent and de novo determinations (ijtiha¯ d); application of customary practices (ʿurf and ʿa¯ da); judgements in equity, equitable relief and necessity (istis․la¯․h, ․ha¯ jah, ․daru¯ra, etc.); and in some cases, the pursuit or the protection of public interests or public policies (mas․a¯ lih ․ mursala and sadd al-dhara¯ ’iʿ wa-l-mafa¯ sid). These and other practical jurisprudential 17

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sources were not employed as legal tropes in a lawless application of so-called qadi justice. In fact, sophisticated conceptual frameworks were developed to regulate the application of the various jurisprudential tools employed in the process of legal determination. These conceptual frameworks were not only intended to distinguish legitimate and authoritative uses of legal tools, but collectively, they were designed to bolster accountability, predictability, and the principle of legality and the rule of law. Being the ultimate sources of legitimacy, the formal sources of law do not play solely a symbolic role in Islamic jurisprudence. Many legal debates and determinations originated or were derived directly from the textual narrative of the Qurʾan and Sunnah. Nevertheless, it would be erroneous to assume, as many fundamentalists tend to do, that Islamic law is a literalist explication or enunciation of the text of the Qurʾan and Sunnah. Only very limited portions of the Qurʾan can be said to contain specific positive legal commandments or prohibitions. Much of the Qurʾanic discourse, however, does have compelling normative connotations that were extensively explored and debated in the classical juristic tradition. Muslim scholars developed an extensive literature on Qurʾanic exegesis and legal hermeneutics as well as a body of work (known as ah․ka¯ m al-Qurʾan) exploring the ethical and legal implications of the Qurʾanic discourse. Moreover, there is a classical tradition of disputations and debates on what is known as the ‘occasions of revelation’ (asba¯ b al-nuzu¯l), which deal with the context or circumstances that surrounded the revelation of particular Qurʾanic verses or chapters, and on the critical issue of abrogation (naskh), or which Qurʾanic prescriptions and commandments, if any, were nullified or voided during the time of the Prophet. Similar issues relating to historical context, abrogation and hermeneutics are dealt with in the juristic treatment of the legacy of the Prophet and his companions and disciples. However, in contrast to the juristic discourses on the Qurʾan, there are extensive classical debates on the historicity or authenticity of the hadith (oral traditions attributed to the Prophet) and the Sunnah (historical narratives typically about the Prophet but also his companions). While Muslim jurists agreed that the authenticity of the Qurʾan, as God’s revealed word, is beyond any doubt, classical jurists recognized that many of the traditions attributed to the Prophet were apocryphal. In this context, however, Muslims jurists did not just focus on whether a particular report was authentic or a fabrication, but on the extent or degree of reliability and the attendant legal consequences. Importantly, Muslim jurists distinguished between the reliability and normativity of traditions. Even if a tradition proved to be authentic, this did not necessarily mean that it would be normatively binding because most jurists differentiated between the Prophet’s sacred and temporal roles. The Prophet was understood as having performed a variety of roles in his lifetime, including that of the bearer and conveyer of the Divine message, a moral and ethical sage and instructor, a political leader, a military commander and soldier, an arbitrator and judge, a husband and a father, and a regular human being and member of society. Not everything the Prophet said or did in these various capacities and roles created normative obligations upon Muslims. The Prophet did not always act as a lawmaker or legislator, and part of the challenge for Muslim jurists was to ascertain when his statements and actions were intended to create a legal obligation or duty (taklı¯f ), and when they were not meant to have any normative weight. In some cases, Muslims are affirmatively prohibited from imitating the Prophet’s conduct because it is believed that in certain situations, the Prophet acted in his capacity as God’s messenger, a status that cannot be claimed by other human beings. Other than the normative implications of the Prophet’s sacred and temporal roles, a great number of juristic disputations focused on the practices and opinions of the Prophet’s family (ahl al-bayt), including his wives, and his companions and disciples (s․ah ․a¯ ba). But while Sunni jurists tended to emphasize and exhibit deference to the 18

What type of law is Islamic law?

four Caliphs who governed the nascent Islamic state after the death of the Prophet (known in the Sunni tradition as al-Ra¯ shidu¯n or the rightly guided), Shiʿi jurists heavily relied on the teachings of the infallible imams, all of whom were the descendants of ʿAli, the fourth Caliph and the Prophet’s cousin, and his wife Fatima, the Prophet’s daughter. It is fair to say that the Qurʾan and Sunnah are the two primary and formal sources of legitimacy in Islamic law. Quite aside from the question of whether most of Islamic law is derived from these two sources, the Qurʾan and Sunnah play the foundational role in the processes of constructing legal legitimacy. This, however, begs the question as to why instrumentalities of jurisprudence such as analogy or reason and consensus are typically listed among the four formal sources of Islamic law. The response, in part, is that the utilization of the concepts of qiya¯ s (or ʿaql) and ijma¯ʿ, not just as instrumentalities of law but as legitimating and foundational origins of law, was a necessary legal fiction. The emergence of this legal fiction in the first couple of centuries after the death of the Prophet took place after contentious, and at times, tumultuous jurisprudential debates. Ultimately, these concepts were intended to steer a middle course between the unfettered and unrestrained borrowing of local customary laws and practices into Islamic law, and on the other extreme, the tendency towards literalism and over-reliance on textualism as the basis of legitimacy in the process of legal development. As legal instrumentalities, both the predominantly Sunni concept of qiya¯ s and Shiʿi ʿaql utilize analogical reasoning to identify the critical issue in one legal ruling and then extend the same ruling to a new case. Jurists used carefully defined analytical skills in deducting the operative cause or ratio legis (the element that triggers the law into action; ʿilla in Arabic) of a particular textual law or determination. Confronted by an unprecedented or novel case, often for which there was no law on point, the jurist would extend the ruling in a previous case (as․l) to the new case ( farʿ), but only if both cases shared the same operative cause.28 The derivation of the operative cause of a ruling (istikhra¯ j ʿillat al-h ․ukm) was important not only because it had become the method by which the law was extended to cover new cases, but also because it became one of the primary instruments for legal systemization and also change. If the operative cause changes or no longer exists, the law, in turn, must change. The Islamic legal maxim, al-ʿilla tadu¯r maʿa al-maʿlu¯l wuju¯dan wa-ʿadaman, became substantially the same as the Latin maxim providing that the law is changed if the reason of the law is changed (mutata legis ratione mutatur et lex). In interpretation as well as adjudication, this helped generate a more systematic legal institution; it meant that cases involving substantially the same issues were decided similarly. This practice, in turn, led to the development of the presumption that precedent ought to be followed unless there is sufficient cause for exception or change (istis․․ha¯ b), which could be triggered by changed circumstances, equity, or a number of other legal justifications. In a similar fashion, the concept of ijma¯ ‘ (consensus) was utilized to create a more systematic and accountable legal system. The basic idea behind the doctrine of ijma¯ʿ was that the agreement of jurists on a particular point of law or that well-established legal doctrine ought to be binding. Nevertheless, beyond this fundamental idea, which was often invoked in an effort to consolidate and stabilize the legal system, there were numerous juristic debates as to a range of issues, such as whose consensus counts or matters; whether consensus is timebound, for instance by generation or another time contingency; whether the doctrine of consensus has a regional dimension and how; and last but not least, how to go about ascertaining that a consensus exists. As readily recognized by classical jurists, however, the claim of consensus was often polemically invoked by judges and jurists in the course of arguing that a particular issue was well settled in law, when indeed it was not, or alternatively, to resist pressure in favour of legal change. 19

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Diversity and pluralism in Islamic law The Islamic legal tradition was founded on a markedly pluralistic, discursive and exploratory ethos that became the very heart of its distinctive character. Thus, one of the foundational ideas of Islamic jurisprudence, variously attributed to the eponyms of the Hanafi and Shafiʿi schools of law, Abu Hanifa (d. 150/767) and al-Shafiʿi, asserted: We believe that our opinions are correct, but we are always cognizant of the fact that our opinions may be wrong. We also believe that the opinions of our opponents are wrong, but we are always cognizant of the fact that they may be correct.29 This, however, was much more than a pietistic declaration of humility or fair-mindedness. Muslim jurists believed that as long as a jurist exerts due diligence and is not negligent in searching the indicators and investigating the pertinent evidence, the resulting determination has an equal claim to legitimacy and authenticity. In fact, Malik b. Anas (d. 179/795), eponym of the Maliki school of thought, argued that different jurists have developed various juristic methods and determinations in different parts of the Muslim world, and that it would be wrong to try to streamline or force the various schools into one.30 Moreover, Malik b. Anas resisted the efforts of the Abbasid Caliph al-Mansur (d. 158/775) to impose the legal rulings of Malik as the uniform law of the land, arguing that no one, including the state, has the authority to sanctify one school of thought as the true law of God, while all others are denounced as corruptions or heresies. Similar efforts by the Abbasid Caliph Harun al-Rashid (d. 193/809) and other rulers to have the state become the sole representative of God’s Will were defeated as well. According to classical legal reasoning, no single jurist, institution or juristic tradition may have an exclusive claim over the Divine truth, and hence, the state does not have the authority to recognize the orthodoxy of one school of thought to the exclusion of all others.31 One of the clearest expressions of the philosophical foundations of this position was that made by the Shafiʿi jurist, al-Juwayni (d. 478/1085), in writing: It is as if God has said to human beings, ‘My command to My servants is in accordance with the preponderance of their beliefs. So whoever preponderantly believes that they are obligated to do something, acting upon it becomes My command.’32 Al-Juwayni goes on to explain that God’s command to human beings is to diligently search the indicators and weigh the evidence, and God’s law is suspended until a human being forms a preponderance of belief about the law. At the point that a preponderance of belief is reached, God’s law becomes in accordance with the preponderance of belief formed by that particular individual. In short, therefore, if a person honestly and sincerely believes that such-and-such is the law of God, then as to that person, ‘that’ is in fact God’s law.33 Ultimately, as to whether there is an objective right answer to contested legal questions, al-Juwayni responds in the negative. For al-Juwayni, there is no correct answer, but to every disputed legal question there is a best answer. Objectively, according to al-Juwayni, the right answer would be the best legal rule that appeals to the core or fundamental values of Islam, and it would also be the rule that comports with tradition and practice-based values instead of literal textualism.34 This philosophy did not mean that Muslim jurists accepted legal relativism or even indeterminism in Shariʿah. Shariʿah was considered to be the immutable, unchangeable and objectively perfect Divine truth. Human understanding of Shariʿah, however, was subjective, 20

What type of law is Islamic law?

partial, subject to error and change. While Shariʿah is Divine, fiqh (the human understanding of Shariʿah) was recognized to be only potentially so, and it is the distinction between Shariʿah and fiqh that fueled and legitimated the practice of legal pluralism in Islamic history. 35 The conceptual distinction between Shariʿah and fiqh was the result of recognizing the limitations of human agency, and also a reflection of the Islamic dogma that perfection belongs only to God. While Shariʿah was seen as an abstract ideal, every human effort at understanding or implementing this ideal was considered necessarily imperfect or incomplete. In theory, Muslim jurists agreed that even if a jurist’s determination is ultimately wrong, God will not hold such a jurist liable as long as he exerted due diligence in searching for the right answer. As seen above, Muslim jurists debated whether in the final analysis, on every point of law there is a single correct position, and whether this position is known only to God, and it is only in the Hereafter that this truth will be revealed. Much of this debate tended to revolve around a number of traditions attributed to the Prophet. For instance, the Prophet is reported to have said: ‘Every mujtahid ( jurist who pursues the right response to a problem) is correct’ or ‘Every mujtahid will be [ justly] rewarded.’36 According to one group of legal theorists, those who are ultimately proven to be wrong will still be rewarded for their due diligence, but those who prove to be right will receive a greater reward. The alternative point of view, however, argued that on all matters of fiqh, there is no single truth to be revealed by God in the Hereafter. All positions held sincerely and reached after due diligence are in God’s eyes correct. God rewards people in direct proportion to the exhaustiveness, diligence, and sincerity of their search for the Divine Will – sincerity of conviction, the search, and the process are in themselves the ultimate moral values. It is not that there is no objective truth – rather, according to this view, the truth adheres to the search. This classical debate had an impact upon the development of various doctrines and institutions in Islamic jurisprudence, the most important of which was negotiating the dynamics between Shariʿah and fiqh. In the Islamic legal tradition, there is only one Shariʿah (Shariʿat Allah), but there are a number of competing schools of thought of fiqh (madha¯ hib fiqhiyya). Even the most ardent of the process-oriented jurists did not go as far as claiming that there are no objective and ultimate values to Shariʿah. Process-oriented jurists contended that the search for the Divine Will is the ultimate moral value, but only as to matters open to a fiqh inquiry. At the same time, although all jurists embraced the theological dogma that God’s perfection cannot be reproduced or attained by human beings, this did not mean that they considered every aspect of Shariʿah to be entirely unattainable or inaccessible until the Hereafter. Some have suggested that Shariʿah contains the foundational or constitutional principles and norms of the legal system. So, for instance, Shariʿah imposes a duty (taklı¯f ) upon Muslims to enjoin goodness and resist wrongfulness. There is little doubt that this duty is a part of Shariʿah, but what does it actually mean, and how or who should implement it, is part of fiqh. Nevertheless, the exact boundaries between Shariʿah and fiqh were often contested and negotiable, and whether there is overlap between the two categories turned out to be challenging and at times ambiguous. Muslim jurists often made the rather circular argument that issues that are considered open to the disputations of fiqh are those upon which jurists may reasonably disagree (al-umu¯r al-khila¯ fiyya). Other popular definitions included the argument that any position, doctrine, or determination that is commonly recognized to be a necessary part of the Islamic religion is a part of Shariʿah (maʿlu¯m min al-dı¯n bi-l-d ․aru¯ra), but this argument had proven to be both under-exclusive and over-exclusive. Moreover, like arguments that have sought to define Shariʿah as whatever Muslims have reached a consensus upon (al-mujmaʿ ʾalayh), these definitions tended to confuse between empirical and normative claims, or values and facts. Behind most of the jurisprudential conceptions of Shariʿah was the basic idea that 21

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what cumulative generations of Muslims reasonably identified as fundamental to the Islamic religion (for instance, the five pillars of the Islamic faith) ought to be part of the unassailable Shariʿah. As some have contended, this approach might have been important to the field of theology, but in law, Shariʿah could not be limited to inherited or popular ideas. Rather, Shariʿah is comprised of the foundational or constitutional normative values that constitute the grundnorms of the Islamic legal system. For instance, the notion that the Divine Will cannot be represented by a single system of fiqh, and the celebration of diversity itself are among those foundational grundnorms. In many regards, one could say that Shariʿah is the unwritten constitutional law of the Islamic common law system, but because of the particular historical practices of the schools of fiqh, such a re-conceptualization would need to be developed analytically. For instance, it is firmly established in the Islamic legal tradition that Shariʿah seeks to protect and promote five fundamental values: 1) life; 2) intellect; 3) reputation or ­d ignity; 4) lineage or family; and 5) property. These are among the five objectives constituting ­maqa¯․sid al-Shariʿah, or part of the five core purposes of Shariʿah.37 Furthermore, Muslim jurists overwhelmingly held that there are three basic levels of attainment or fulfilment of such values: the necessities, needs and luxuries. Under Shariʿah law, legal imperatives increase in proportion to the level demand for the attainment of each value. Thus, when it comes to life, for example, the legal duty to secure a person’s survival is a priori to the obligation of guaranteeing human beings any basic needs that are above and beyond what is necessary for survival. Nevertheless, alongside these broad fundamental principles, historically, Muslim jurists developed specific positive commandments that were said to be necessary for the protection of the values mentioned above, such as, for instance, the laws punishing slander, which were said to be necessary for the protection of reputation or dignity; or the laws punishing fornication, which were said to be necessary for the protection of lineage and family. I will discuss the ․h udu¯d penalties further below, but for now it is important to emphasize that many of the positive legal determinations purportedly serving the five values were often declared to be a part of Shariʿah, and not just fiqh, or were left in a rather ambiguous and contested status between Shariʿah and fiqh. Claiming that a positive legal commandment is not a by-product of fiqh, but is essentially part of Shariʿah, effectively endowed such a commandment with immunity and immutability. The boundaries between Shariʿah and fiqh were negotiated in a variety of highly contextually contingent ways in the course of Islamic history, but the dynamics and processes of this history remains grossly understudied. As noted above, the genesis of the schools of fiqh was in the localized regional practices and adjudications of Kufa, Basra, Damascus, Mecca, Medina, Fustat and other urban centres. But as early as the eighth century, alongside the state courts run by appointed judges and administrators, already there emerged the widespread phenomenon of privately funded and endowed centres of legal learning and schools of fiqh, usually organized around the persona of a gifted law teacher. There is a long-established tradition in Islamic history of the state trying to entice or coerce particularly well-respected and reputable jurists into serving in the state-run judiciary. However, while every founder of a personal school of thought was a faqı¯h ( jurist), not every faqı¯h agreed to serve as a judge (qadi), and not every qadi was a reputable faqı¯h. The tension and resistance of legal scholars ( fuqaha¯ʾ) to the temptations of power and to the allure of accepting a judicial post (qad․a¯ʾ) was an ongoing theme and narrative of valor, bravery, and suffering throughout pre-modern Islamic history. Indeed, within the first three centuries of Islamic legal history, there is a proliferation of schools of fiqh, and intense competition between the various schools for mass support and for private endowments funding the scholarship of teachers and students. The still extant Sunni schools are those of: Abu Hanifah (d. 767, eponym of the Hanafi school), Malik b. Anas (d. 795, eponym of the Maliki school), 22

What type of law is Islamic law?

Ibn Idris al-Shafiʿi (d. 820, eponym of the Shafiʿi school) and Ahmad b. Hanbal (d. 855, eponym of the Hanbali school). There are three major Shiʿi schools of law: the Jaʿfaris (named after Jaʿfar al-Sadiq, d. 765), the Zaydis (named after Zayd b. ʿAli, d. 739), and the Ismailis with their own unique legal heritage. Other than the Sunnis and Shiʿis, there is the legal tradition of the Iba¯ ․d¯ı school, which descended from the sect of the Khawarij. There are also many extinct schools such as these of: Ibn Abı¯ Laylah (d. 765), Sufyan al-Thawri (d. 777), Ibn Jarir al-Tabari (d. 923), ʿAbd Allah b. Shubruma (d. 761), al-Layth b. Saʿd (d. 791), Sharik al-­Nakhaʿi (d. 803), al-Awzaʿi (d. 773), Ibrahim Abu Thawr (d. 854), Dawud b. ʿAli b. Khalaf (d. 884) (the Zahiris), and many more. Even in a single school, such as that of Abu Hanifah, there could be several distinctive trends or orientations, such as the positions of Zufar (d. 775), Abu Yusuf (d. 798), and al-Shaybani (d. 804). Purportedly, by the end of the tenth century, no fewer than 100 schools of fiqh had emerged in the highly competitive legal market, but for a wide variety of reasons, most of these schools ultimately failed to survive. Fortunately, however, many of the diverse positions and competing views expounded by extinct schools of thought were documented in huge legal encyclopedias often written by competitors, and in some cases, the actual texts of extinct schools have reached us. The most striking characteristic about the legal schools that dominated the practice of law for more than three centuries after the death of the Prophet is their remarkable diversity, and in fact, one would be hard pressed to find any significant legal issue about which juristic disputations and discourses have not generated a large number of divergent opinions and conflicting determinations. At this formative stage, through discursive methods of teaching and disputation, the madha¯ hib were going through a process of gelling, in which they developed not only their internal mechanisms, particular linguistic practices and systems of discourse, but they also competed for resources. The dilemma was that for a variety of theological and political reasons, jurists who associated themselves too closely with the state tended to discredit themselves in the long run, and in the process, ultimately helped to sign their own death warrants. Jurists who were more adept in negotiating their roles so as to avoid the perception of complete subservience to the state, and with it the inevitable loss of stature and credibility, and who at the same time, managed to avoid the ire and brutality of the state, which could invariably make the life of such a school quite challenging, had better chances of survival. In this formative period, the schools had to compete to attract the best legal minds and the most promising students to its ranks; and had to be blessed with enthusiastic supporters who enjoyed the charisma and skill to convince affluent families that their children would be best educated in this or that particular madhhab, or that a generous philanthropist endowment would be a pious way of doing good in this life and the Hereafter. The competition of the madha¯ hib or schools of law was not a short-lived phenomenon. The contingencies of history are many, and there are madha¯ hib that thrived in Andalusia or Egypt, for instance, but which were overcome by another madhhab and eventually vanished; and there are madha¯ hib that looked like they were on the verge of extinction, only to make a triumphant comeback centuries later. During the age of proliferation, one does notice the incredibly broad expanse of space which came under the legitimate jurisdiction of fiqh. Put differently, there did not seem to be many issues in Shariʿah that were off-limits for the inquiries of fiqh. Rather, the grand abstract types of questions that were raised when attempting to expound a systematic demarcation between Shariʿah and fiqh were handled within the classical madha¯ hib through the micro-technicalities of the practice of law. Rather than struggle with the larger abstract conceptual questions, the Shariʿah/fiqh balance was negotiated through the micro-dynamics of legal practice. The main instrument for expanding the scope of juridical determinations was analogical reasoning, and the best way to describe the processes of Islamic adjudications 23

Khaled Abou El Fadl

and legal thinking is that it was a systematic discipline of deliberative and purposeful practical reasoning. What distinguished Islamic law from other normative inquiries, such as philosophy or kala¯ m, was that Muslim jurists negotiated the boundaries between theory and practice through the application of methodologies premised on precedents and analogy by applying deliberative and purposeful reasoning to resolve real or imagined conflicts and disputes. Initially, what differentiated one school of law (madhhab) from another were methodological disagreements, and not necessarily the actual determinations. With the increasing consolidation and institutionalization of schools of thought, each school developed its own distinctive cumulative interpretive culture, structural precedents and particular linguistic practices. Importantly, the founders of the schools of fiqh, and the early jurists in general, did not intend to generate binding legal precepts. Rather, acting more like law professors and legal scholars, they produced legal opinions and analyses, which became part of the available common law to be adopted by state appointed judges in light of regional customary practices. Legal scholars from the different schools of thought were often far more interested in hypotheticals that illustrated their analytical models and methodologies than in passing judgments on actual disputes. This is why fiqh studies did not speak in terms of positive legal duties or prohibitions, but analysed legal issues in terms of five values: 1) neutral or permissible (muba¯․h/h․ala¯ l); 2) obligatory ( fard․/wa¯ jib); 3) forbidden (muh ․arram); 4) recommended (mandu¯b/ mustah․ab); and 5) reprehensible or disfavoured (makru¯h). Frequently, jurists spoke in probabilistic terms, such as saying, ‘what is more correct in our opinion’, referring to the prevailing view within the jurist’s school of thought (al-murajjah․ ʿindana¯ ). The critical point is that the masters of fiqh understood that they were not making binding law but issuing opinions of persuasive authority. The difference between fiqh and positive law was akin to the distinction between fatwa and ․hukm. A ․hukm is a binding and enforceable legal determination, but a fatwa (responsa) is a legal opinion on a particular dispute, problem, or novel issue, which by definition, enjoys only persuasive authority. Both fiqh and fatwa (sing. fatwa¯ , pl. fata¯ wa¯ ) become binding law only if adopted as such by a person as a matter of conscience, or if adopted as enforceable law by a legitimate authority such as a judge.38 In other words, fiqh and fatwa are normative legal proposals that are contingent on essential enabling acts or triggers: the conscientious acceptance of its mandatory authority by Muslim practitioners, or by an official adoption by a properly constituted authority. In theory, judges were willing to obey regulatory or administrative laws as long as they did not conflict with Shariʿah principles, but even then, the most prominent jurists often resisted judicial appointments because of the fear that they would have to enforce unlawful executive orders. Islamic history is replete with anecdotal stories of legal scholars who refused to accept a judicial appointment unless they had assurances that the ruler and his agents would not interfere with their judgments; or unless the judiciary was given its own police force empowered to ensure compliance with judicial determinations. After the ­Umayyad ­dynasty (ended 749) and especially after the so-called Mih․na (833–848), which was an ­Abbasid aborted inquisition against, among other things, the authority of jurists, it became increasingly common to appoint jurists from the emerging schools of law. Unless the case involved a pure administrative or regulatory law problem, which tended to come under the separate jurisdiction of executive diwa¯ ns (diwa¯ n al-mulk, diwa¯ n al-h․ukm, diwa¯ n al-muʿa¯ mala¯ t, all of which connoted different administrative councils or ministries), typically judges would decide cases on the basis of the precedents or analogical reasoning of what could be called the regional or local madhhab, or the regionally established practices and precedents of each madhhab. By the end of the tenth century, as more schools of fiqh became extinct, thriving schools became increasingly institutionalized and organized as legal guilds with complex processes 24

What type of law is Islamic law?

of training and certification. In turn, only properly trained and certified members of the established legal guilds would be appointed to the judiciary, but there is ample evidence to suggest that after the tenth century, instead of localized or region-specific variations on the madhhab, legal schools of thought developed recognized majority and minority positions – majority positions reflected the formal stand of the madhhab on recognized legal problems (al-­muʿtamad fı¯ al-madhhab), and minority positions represented the dissenting opinions that emerged within the schools. Junior judges, in particular, were expected to implement the positions representative of the school, but justices of higher rank, such as the chief justice (qadi al-qud․a) and respected senior professors, had considerably more freedom in adopting minority views or advocating for changes in the law. By the 11th century, the major legal schools had organized into institutionalized and structured guilds. Not only had the processes of legal training and certification become well established, but various genres of legal literature and their different functions had become well defined. Significantly, the threshold for establishing new legal schools or guilds was set much higher after older schools had the opportunity to become more socially and economically rooted. Instead of the uphill battle of finding a new madhhab, it was much more feasible for even the most talented jurists to join an already established school of law and rise in the ranks through regular channels. Taqlı¯d (imitation or following prior determinations) was not the instrument of legal stagnation; it was an important functional instrument of the rule of law. In general, taqlı¯d stabilized the law by requiring continuity in legal application, and by creating a legal presumption in favour of precedents unless a heightened burden of evidence was met justifying legal change. In principle, judges of first instance were expected to follow the same rule of law from case to case, and students and junior scholars of the law were required to first learn and defer to the existing methodology and determination of the madhhab to which they belonged. Higher-ranked judges and scholars enjoying greater qualifications and stature were able to initiate de novo legal determinations (ijtiha¯ d). Indeed, many of the most important developments in Islamic law were accomplished by jurists centuries after the supposed ‘doors of ijtiha¯ d’ were closed. The essential point about the Islamic legal tradition, and especially the role of fiqh, is that the juristic method and the linguistic practices of cumulative communities of legal interpretation became not only the mechanism for legitimacy and authority, but also the actual source of law. As a community of guilded specialists with an elaborate system of insignia and rituals, in most cases structured around a system resembling the Inns of Court in England, the jurists played a critical role in upholding the rule of law and in mediating between the masses and rulers.39 However, the primacy of the juristic method and the organized guilds representing the various schools of law, contrary to some stereotypical claims, did not mean that the application of Islamic law became completely streamlined or simply mechanical and formulaic. Within a single madhhab, it was common for various juristic temperaments and philosophical orientations to exist because the established schools of law became the common platforms where conservative or activist jurists had to pursue their legal agendas or objectives. Within a single established school of thought, there could be conservative, traditionalist, rationalist or equity-oriented trends, but each of these orientations had to negotiate its particular approach within the demands of the juristic method of the madhhab. Far from being formulaic or mechanical, some late jurists such as Fakhr al-Din al-Razi (d. 1210), Sayf al-Din al-Amidi (d. 1233), Taj al-Din al-Subki (d. 1370), and Ibn ʿAqil (d. 1119) achieved unprecedented advancements in the use of systematic and analytical reasoning in Islamic jurisprudence. In the case of a Shafiʿi jurist such as al-Subki and a Hanbali jurist such as Ibn ʿAqil, it is fair to say that, methodologically, they became the embodiment of the Latin maxim ratio est radius 25

Khaled Abou El Fadl

divini luminis (reason is a ray of divine light). Some jurists, such as the Hanafi Ibn ʿAbidin (d. 1836) and the Maliki al-Shatibi (d. 1388), systematically integrated custom as a source of law in novel and original ways.40 In addition, jurists from various Islamic schools of thought continued to employ concepts such as istih․sa¯ n and istis․la¯․h (the exercise of juristic preference in favour of a precedent not directly on point instead of a preference that is on point, because of equity, in the former, and public interest, in the latter) as legitimate sources of law.41 But these were not instruments allowing the exercise of unfettered juristic discretion. Rather, jurists developed a set of limiting criteria intended to make the process of exercising legal preferences more systematic and accountable to the juristic method as a practised discipline of deliberation and practical reasoning.42 Fundamentally, whether a particular legal orientation emphasized the use of the text, reason, custom, equity or public interest, these tools had to be justified, channeled, negotiated and limited by the juristic method.43 The point is not just that the juristic method became the prevalent mechanism for negotiating the tools and instruments of legal analysis, but even more, that the juristic method became Islamic law itself. The deliberative and purposeful mechanisms of Muslim jurists became the method for negotiating not just the relationship between Shariʿah and fiqh, but between the realm of God and that of humans, and ultimately, between the sacred and the profane.

The sacred and profane in Islamic law The relationship between the sacred and profane was negotiated in Islamic law through the ongoing historical dynamics demarcating the boundaries between Shariʿah and fiqh. But beyond this, there were several other conceptual categories and functional mechanisms through which sacred and temporal spaces were negotiated in Islamic law. Among these categories was the conceptual differentiation between ʿiba¯ da¯ t (laws dealing with matters of ritual and worship) and muʿa¯ mala¯ t (laws pertaining to human dealings and intercourses). In theory, all Islamic laws are divided into one of these two categories: ʿiba¯ da¯ t are laws that regulate the relationship between God and humans, and muʿa¯ mala¯ t are laws that regulate the relationship of humans with one another. As to issues falling under the category of ʿiba¯ da¯ t, there is a legal presumption in favour of literalism and for the rejection of any innovations or novel practices. However, in the case of muʿa¯ mala¯ t, the opposite presumption applies: innovations or creative determinations are favoured (al-as․l fı¯ al-ʿiba¯ da¯ t al-ʾittiba¯ʿ wa-l-as․l fı¯ al-muʿa¯ mala¯ t al-ʾibtida¯ʿ). The rationale behind this categorical division is that when it comes to the space occupied exclusively by how people worship the Divine, there is a presumption against deference to human reason, material interests and discretion. Conversely, in the space occupied by what the jurists used to describe as the pragmatics of social interaction, there is a presumption in favour of the rational faculties and practical experiences of human beings. Underscoring the difference between ʿiba¯ da¯ t and muʿa¯ mala¯ t was the fact that the two were not only identified as distinct and separate fields and specialties of law, but it was also quite possible to specialize and become an authority in one field but not the other ( fiqh al-ʿiba¯ da¯ t or fiqh al-muʿa¯ mala¯ t). Beyond this clear categorical division, negotiating the extent to which a particular human act or conduct, whether it be public or private, primarily involved ʿiba¯ da¯ t or muʿa¯ mala¯ t, was not a simple and unequivocal issue. For instance, there were lengthy debates as to whether the prohibition of zina¯ (fornication or adultery) or the consumption of alcoholic substances would fall under the category of ʿiba¯ da¯ t or muʿa¯ mala¯ t, or alternatively, some mixture of both categories. Nevertheless, as in the case of the debates regarding the parameters of Shariʿah and fiqh, although in principle there was a philosophical recognition that the spaces occupied by the sacred and profane required different treatments, in reality, it was the juristic method 26

What type of law is Islamic law?

that played the defining role in determining the function of text, precedent and rational innovation in the treatment of legal questions. It was not the legal presumptions attaching to either category but the institutional and methodological processes of each legal school of thought that most influenced the way issues were analysed and determined. It was the deliberative ability to demonstrate a commitment to a consistent interpretive methodology that determined legitimacy and validity within each school of thought.44 Importantly, a prominent jurist such as Abu Hamid al-Ghazali insisted that the entire discipline of fiqh is but a temporal discipline. Al-Ghazali argues that the very role of a faqı¯h ( jurist) is to resolve and negotiate conflicts among disputants who fight over material earthly things. Just because a jurist competent in resolving and adjudicating earthly disputes does not mean that such a jurist is knowledgeable about the affairs of the Hereafter.45 Moreover, al-Ghazali explains that jurists ( fuqaha¯ʾ) are experts in temporal things, but they are not necessarily experts in spiritual matters. Therefore, it is critical to distinguish these jurists from scholars who specialize in piety and spiritual matters ( fuqaha¯ʾ al-za¯ hir versus ʿulama¯ʾ al-akhira).46 The thrust of al-Ghazali’s argument is that competence over the deliberative and reasoned methods of law does necessarily imply competence in spiritual matters of personal piety. The sciences of law and piety are distinct and separate. Al-Ghazali’s discussion reflects the fact that the sacred and profane were differentiated and distinguished in legal practice. It is in the historical practice of the guilds of law, and especially on questions of procedure, jurisdiction, conflict of laws and the compulsory powers of courts, that one finds the most pronounced negotiations of the space and balance between the sacred and profane. For instance, throughout Islamic history, courts rarely took jurisdiction of matters involving ʿiba¯ da¯ t, such as the performance of prayers.47 In a rather large genre of literature dealing with the laws of adjudication (ah․ka¯ m al-qad․a¯ʾ), administrative and executive laws (ah ․ka¯ m al-h ․isba and al-siya¯ sa al-sharʿiyya), and the functions of the muh․tasib, who in classical practice were usually market inspectors, Muslim jurists differentiated between judicial and executive functions.48 Related and overlapping discussions are also found in treatises dealing with the private and public normative obligation to enjoin the good and resist what is wrong (al-amr bi-l-maʿruf wa-l-nahy ʿan al-munkar). In this literature and in the actual historical practice, courts did not take jurisdiction of a matter unless there was an actual or real conflict. Courts had the duty to issue ah ․ka¯ m ( judgments) and not fata¯ wa¯ (responsa). At the same time, the authority and discretion of the executive to dispense summary justice or deal out summary penalties was restricted.49 Among other limitations, in any particular case, if either the law or the facts were disputed, the matter had to be referred to the judiciary. Only the judiciary had the legitimate power to interpret the law and establish the facts in any dispute. Interestingly, although varying according to time and place, it was not unusual for litigants to appoint a wakı¯l (agent or lawyer) to argue on their behalf in civil cases, and it was common for litigants to solicit and obtain a fatwa in support from respected jurists, and judges considered such conflicting responsa as advisory or persuasive in authority. Furthermore, contrary to the unfounded generalizations that plague the field, again depending on time and place, very often there was an appellate process and sophisticated procedural rules regulating the circumstances under which a higher court may overrule a lower court within the same jurisdiction, or fail to recognize the judgment of another Islamic court from a different jurisdiction. Perhaps as a practical result of the epistemology of plural orthodoxy, in Islamic jurisprudence, a court’s judgment or finding was not equated with or considered the same as God’s judgment. At a normative level, a court’s judgment could not right a wrong or wrong a 27

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right, and it could not negate or replace the duties and responsibilities imposed by an individual’s conscience.50 Jurists argued that individuals do have an obligation to obey court decisions as a matter of law and order, but judicial determinations do not reflect or mirror God’s judgment.51 A classic example would be of a litigant who, for instance, follows the Hanafi school of thought, and who is forced to submit to the jurisdiction of a Shafiʿi court. The Hanafi litigant would have to obey the judgment of the court, not because it is correct, but because a duly constituted court possesses legitimate positive authority (sult․at al-ilza¯ m). Not surprisingly, the proper balance between the duty of obedience to the public order and the duty to follow one’s conscience, or school of thought, has been the subject of considerable jurisprudential debates.52 It was argued that at times, it becomes incumbent to disobey a ­lawful judgment or command, even if this might mean having to suffer negative repercussions. Typically, this involved situations where a person conscientiously believed that harm or injury would be done to innocent parties, or scenarios implicating personal virtue or honour, such as marital status. In the classical juristic tradition, there are situations where the state, acting through a judge, could rightfully punish disobedience to its commands, and yet an individual would have an obligation to disobey the state’s commands. In the Hereafter, God would reward such an individual for his sincerity, and at the same time, possibly reward the judge for his effort. Because of the reality of pluralist legal orthodoxy, in Islamic jurisprudence it is entirely conceivable, even where Shariʿah is the law of the land, that an individual legitimately would feel torn between his duties towards the public order and God. The legitimacy of the state and even the law were not absolute – both state and law performed a functional but necessary role.53 Beyond the fact that the state could not act as a proxy for God, legal determinations could not void the necessary role of personal beliefs or individual conscience because they did not replace the sovereignty of Divine judgments. Importantly, the space for individual conscience was not simply a product of legal pluralism. It is not only the diversity of legal opinions that allowed for a duality between the rule of law and rule of conscience, but the very nature of Islamic law. On many issues, the rule of law or the way a litigant would be treated by the legal system would not mirror how God would adjudge a matter in the Hereafter. Put differently, an act could be a sin before God, but this does not necessarily entail legal liability in this world; similarly, legal liability does not necessarily mean that an act is sinful. Sin and legal liability overlap, but in many situations, are not identical.54 A significant by-product of the institutions of legal pluralism was the rather fascinating, but little understood, practice of multiple territorially overlapping legal jurisdictions. There were many historical examples of governments establishing as many as four court judicial jurisdictions, each following a different madhhab, with a challengingly complex set of conflict of laws rules regulating subject matter and en persona jurisdiction.55 Normally, however, the predominant madhhab affiliation of the population of a region would play a determinative role on the madhhab followed by a court. Furthermore, frequently, there was a senior or chief judge settling issues of adjudicatory law within each madhhab. In addition, a common practice was to appoint a supreme chief judge who enjoyed ultimate appellate authority, as far as the positive law was concerned, over all the judicial jurisdictions. Although the research in this field is poorly developed, there is considerable evidence that the supreme chief judge, although personally belonging to a particular madhhab, in his official function, sought to resolve conflict among the jurisdictions through a synchronistic or conciliatory methodology known as al-tawfı¯q bayn al-madha¯ hib (resolving and balancing between the differences among the schools of legal thought), which was a well-developed jurisprudential field and specialty. 28

What type of law is Islamic law?

The rights of God and human beings Perhaps the clearest articulation in Islamic jurisprudence of the distinctive spaces occupied by the sacred and profane is the categorical differentiation between the rights of God (h ․uqu¯q Allah) and the rights of humans (h․uqu¯q al-ʿiba¯ d). Muslim jurists agreed that humans cannot benefit or harm God, and so unlike the rights owed to human beings, the rights of God do not involve any actual interests of God. Depending on the context, the word huquq (pl. of h ․aqq) referred to the province, jurisdiction, boundaries, or limits of God (h ․udu¯d Allah). Interestingly, ․huqu¯q al-ʿiba¯ d did not refer to public or common rights, but to the material interests and benefits belonging to each human being as an individual. The rights of God do not need a protector or vindicator because God is fully capable of redressing any transgressions committed against His boundaries or commands.56 But unlike God, human beings do need an agent empowered to defend them and redress any transgressions committed against their person or properties. Therefore, the state is not simply empowered, but obligated to enforce the rights and obligations owed to people and may not legitimately ignore or waive them away. The state was precluded from enforcing the rights of God because the state was not God’s representative, and God had reserved these rights to His exclusive jurisdiction and province. Muslim jurists clearly recognized the exceptionality and exclusivity of the sacred space, and even jealously guarded it from the encroachments of the profane. Ironically, however, it is in dealing with the issue of God’s clear boundaries and limits that the jurists most famously collapsed the sacred and profane into a single space, at least in theory if not in application. In what is known as the ․hudu¯d penalties, Muslim jurists asserted that there is a category of Divinely ordained punishments that apply to violations committed against a class of mixed rights (h ․uqu¯q mukhtalit․a), which are shared by God and human beings. As a category, mixed rights involve issues where the material interests or well-being of people are involved, but at the same time, there is a discernible Divine Will staking a specific claim for the Divine over these issues. In the case of the Divinely ordained ․hudu¯d penalties, for reasons not necessarily known to human beings, God purportedly not only explicitly determined the punishable act and the exact penalty, but also the exact process by which the crime is proven, and the penalty is carried out. Although not all the ․hudu¯d crimes were mentioned in the text of the Qurʾan, a general juristic consensus was said to exist as to the Divine origin of the penalties. In the classical tradition, fornication and adultery (zina¯ ), robbery (sariqa), consumption of alcohol, defamation (qadhf ), and apostasy (ridda) were the violations most commonly included within the ․hudu¯d. The real paradox of the ․hudu¯d is that while in contemporary Islam they are often imagined to be the harbinger and flagship of Islamic law, in the classical tradition the ․hudu¯d penalties were rarely applied precisely because of the space occupied by the Divine in defining and redressing the crime. On the one hand, by categorizing a crime under the ․hudu¯d, the definition of the crime and the appropriate penalty became sanctified and immutable. But, on the other hand, by placing it within the category of ․hudu¯d, the jurists effectively endowed the penalty with a largely symbolic role because the technical requirements and administrative costs of enforcing these sacred penalties were largely prohibitive. As with all matters involving the rights of God, as far as the state is concerned, it is imperative to tread cautiously lest in trying to uphold the bounds of God, whether through ignorance, arrogance or incompetence, the state itself ends up committing an infraction against the Divine. Prophet Muhammad’s injunction, which was adapted into a legal maxim, commanded that any doubt must serve to suspend the application of the ․hudu¯d. In addition to the presumption of innocence in application as to all criminal accusations, Muslim jurists often cited the injunction above in greatly circumscribing the application of the ․hudu¯d penalties through a 29

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variety of doctrinal and procedural hurdles. In general, repentance, forgiveness and doubt acted to prevent the application of the ․hudu¯d. In dealing with the rights of God, it was always better to forgive than to punish; repentance of the defendant acted to suspend the ․hudu¯d, and all doubt had to be construed in favour of vindicating the accused.57 As far as the classical jurists were concerned, the ․hudu¯d, like all matters implicating the rights of God, were better left to Divine vindication in the Hereafter. In most cases, instead of pursuing a ․hudu¯d penalty, the state proved a lesser included crime under a less demanding burden of proof, and applied lesser penalties, normally involving imprisonment, some form of corporal punishment, banishment, or a fine. Lesser penalties for non-h․udu¯d crimes, or lesser included crimes, fell into two categories: qis․a¯․s (tallion) or taʿzı¯r (penalties prescribed by the state for offenses against public interest). Qis․a¯․s was treated as a private recourse and right, where pardon or forgiveness was always preferable, but taʿzı¯r were thoroughly profane punitive measures left to the authority and jurisdiction of the state, applied to protect the public through deterrence. Classical Muslim jurists enunciated various principles regulating and restricting the powers of the state over taʿzı¯r punishments, such as the precept that no crime is committed unless there is prior notice, and the ban against ex post facto findings of guilt. Muslim jurists stressed that summary executive punishments are impermissible in all cases involving contested questions of fact or law, and that all such cases must be referred to the judiciary.58 Moreover, many classical jurists placed a limit on the number of lashes that could be imposed upon a defendant, typically with the cap ranging from 30 to 100 lashes, depending on the nature of the criminal offense and the record of the offender. Fundamentally, however, while ․hudu¯d punishments were greatly circumscribed, throughout Islamic history, what and how taʿzı¯r punishments were applied greatly varied from one time and place to another. By circumscribing the enforcement of the rights of the Divine, the classical jurists of Islam constrained the power of the state to act as God’s avenger.59 However, doctrinally the rights of God, as a concept, played an important normative and ethical role in the Shariʿah dynamics taking place within Muslim societies. The rights of God symbolically represented the moral boundaries of appropriate social mores and values in the public space. This does not mean, as some contemporary reformists have claimed, that the rights of God are equivalent to or substantially the same as public interests or space. Normatively, the Shariʿah is expected to pervade the private and public spaces by appealing to the private consciences of individuals and to societies as collectivities. But there is one way this could happen and that is through voluntary compliance. For the most part, Islamic jurisprudence invoked the compulsory powers of the state in order to enforce obligations or rights owed to people – not to God. Functionally, Islamic law was thought of, not as a means for empowering the state to act on God’s behalf, but as setting limits to the powers of the state through the imposition of the rule of law. Therefore, the greater legacy of the Islamic tradition deals with questions involving muʿa¯ mala¯ t or social intercourses and dealings, or the resolution of conflicts arising from competing claims and interests.

What happened to the classical Islamic legal system? With the advent of the age of Colonialism, the Islamic legal system was consistently replaced by legal systems imported from Western colonial states. The factors contributing to the deterioration and replacement of Islamic law are numerous, but primary among those factors was the pressure exerted by foreign powers for a system of concessions and special jurisdictions that served the economic and political interests of the colonizers, and a parasitical native elite that derived and maintained its privileged status from the financial, military and cultural 30

What type of law is Islamic law?

institutions of colonial powers. Frequently, colonial powers and their dependent native elites found that their economic and commercial interests were not well served by the pluralism and localized indeterminacy of the Islamic legal system. In response, some colonial powers such as Great Britain created hybrid legal institutions such as the Mixed Courts of Egypt and the Anglo-Muhammadan courts of India. Of greater significance, however, was the fact that colonial powers and their native ruling elites found that the organized legal guilds, and the system of religious endowments (awqa¯ f ) that supported these guilds, leveraged a considerable amount of power that was often used to resist the hegemonic powers of the modern state. Throughout the Muslim world, this led to a protracted process by which colonial powers, or in the post-colonial age, local nationalistic governments, consistently undermined the autonomy, and eventually completely controlled, the traditional legal guilds and the network of religious endowments, not only depriving them of any meaningful political role but also deconstructing their very legitimacy in Muslim societies. Perhaps more destructive to the Islamic legal system was the fact that the institutional replacement of Islamic law was accompanied by a process of cultural transformation that led to the deconstruction of the very epistemological foundations of Islamic jurisprudence. Colonial powers not only exerted considerable pressures toward greater legal uniformity and determinism, but in what has been described as a process of cultural invasion, both the ruling elites and the intelligentsia of various Muslim societies turned mostly to the West, and to a much lesser extent eastern Europe, for inspiration and guidance in all fields of the arts and sciences. Increasingly, educational institutions and systems in the Muslim world were fashioned or remodeled along the lines of the educational systems of the major colonial powers. From the beginning of the 19th century onwards, and to this very day, an academic degree from Western schools became a cultural symbol of prestige and privilege. In the legal field, a Western education became a powerful venue for upward professional mobility and social status, and this led to a marked deterioration in the position and authority of classical Muslim jurists as well as in the role of the centuries-old schools of Shariʿah law all over the Muslim world. The cultural impact of Colonialism upon Muslim societies was and continues to be immeasurable. In the 19th century, the Western-educated intelligentsia played a critical role in the birth of the reform movement that sought to modernize Islamic law. In response to the transplantation of European codes of law into the Muslim world, especially in the 1850s and 1860s, Muslim legal experts, most often trained in Western institutions, sought to reform Islamic law by making it more deterministic, uniform, and predictable. In most cases, this amounted to a process of codification, the most famous of which was the Mejelle (also known as Majallat al-Ah․ka¯ m al-ʿAdliyya) completed in 1877. But these efforts at reform meant challenging the epistemological foundations of the Islamic legal system and a radical reinvention of Islamic law from a common law-like system to a system tailored after the civil law, especially the Napoleonic Code of 1804. Very frequently, legal reformers unwittingly transformed Islamic law from a system of common laws united by shared communities of legal practice, methodological and analytical tools, technical linguistic practices, and a coherent system of authoritativeness and legitimacy, to nothing more than a compilation of deterministic commands. Throughout the Muslim world, legal codifications were understood to be a part of the necessary reforms of modernization, statehood and rule of law. Under the auspices of purported legal reforms, throughout the second half of the 19th century and the first half of the 20th century, Islamic courts and law were abolished and replaced by transplanted Western legal systems. The jurisdiction of Islamic courts were limited to family and personal law matters, and these courts enforced codified versions of Islamic personal law, structurally modelled after the civil law system.60 31

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Modern so-called Shariʿah-law codifications exist in tension with the inherited classical legal tradition because they limit the interpretive possibilities by imposing a positivist model upon Islamic law. In many ways, these Shariʿah-law codifications collapse the distinction between Shariʿah and fiqh, and while they may increase the predictability of the law, they also substantially narrow the available space for searching or negotiating the Divine Will. This is to say, structurally and epistemologically, these Shariʿah-law codifications exist in considerable tension with the inherited Islamic classical legal tradition. As discussed earlier, the substantial epistemological tension between modern codes of law and the Islamic classical legal tradition has led a number of scholars to argue that Islamic law was not law at all.61 As noted earlier, whether this is true depends on how we understand and define law.

What is Islamic law? I now return to the question of what kind of law is Islamic law? As discussed earlier, some contemporary scholars suggest that Islamic law might not be law at all. But what does this mean? As I argued above, Islamic law is neither natural law nor a positivist legal system. When we talk about the Islamic legal system, we are referring to a tradition of deliberative practice that is cumulative and continuous. This deliberative and cumulative interpretive practice forms a narrative community that shares a common linguistic practice, interpretive and expository methodologies, and instrumentalities of authority and legality. It is fair to say that all legal systems try to be authoritative and normative. But it is not the articulated commands, determinations, and specified rules that define Islamic law. The specified explicit rules pronounced by a legal system is not what defines this system. The positive commandments and rules are a by-product of the legal system, and not the legal system itself. This is why the articulated commandments and rules can be re-interpreted, altered, abrogated or replaced, and this does not re-define a legal system. This is why the specific determinations, commandments, or rules can be suspended, nullified, abrogated, or in other words, changed all the while the legal system remains the same. What counts is that the positive legal commandments are changed according to the rules of the game within the legal system. If the rules of law are changed whimsically or without following the interpretive dynamics established within a legal community, these amendments or changes will be seen as lacking authoritativeness, legitimacy, or in a word, legality. It is not the ․hudu¯d punishments or any other specific legal commandment that defines Islamic law. Any law could be changed and the legal system remains the same. However, for a law to change legitimately and authoritatively, the change must take place through the established interpretive and expository practices of the legal system, otherwise the change will fail to gain recognition and acceptance within the community of practitioners functioning within this legal system. This, however, begs the question: If the positive commandments or rules do not define a legal system then what does? Islamic law is founded on the Qurʾan and Sunnah. It is accurate to say that the cumulative deliberative practices of the practitioners of Islamic law drew legitimacy and, to one extent or another, inspiration from the Qurʾan and Sunnah. But it would not be accurate to say that Islamic law is derived from the Qurʾan and Sunnah. Those who have studied the cumulative discourses, debates, contestations and disputations of Muslim jurists through the course of 1,400 years would readily recognize that the Qurʾan and Sunnah play a legitimating role in the unfolding and articulations of the Islamic legal tradition. However, Islamic law is not simply derived or deducted from the Qurʾan and Sunnah. As a legal tradition, Islamic law unfolded through the robust activity of legal specialists who established a process of 32

What type of law is Islamic law?

continuous use, interpretation, exposition and expansion, and a technical linguistic practice that became the heart and soul of the legal system. The main instrumentality of the unfolding of the Islamic legal system was not legal deduction but reasoning through analogy and from likeness to likeness. This instrumentality would be very familiar to lawyers of the common law system: a similibus ad similia (from like to like), according to which jurists reason from one example to another and from one ratio legis to another. In theory, all the legal opinions emerge from the Qurʾan and Sunnah, but in reality, these legal opinions are derived from perceived similarities and differences from one case to another. What is critical to this process is that there is a continuous and cumulative practice and convention that is essentially discoursive by which jurists employ a linguistic practice to investigate, explore and deliberate upon the indicators of the Divine Will, and reason from one example to another. The indicators are investigated and deliberated in response to communal problems, inquiries, disputations and debates. The concept of convention here is essential and what I mean by convention is a deliberative practice of applied reasoning. The convention at the heart of Islamic jurisprudence is not a philosophical project and it is not necessarily theoretically systematic. Islamic law is not about an ultimate moral vision, and also it is not about an ontological vision about the correct order of things in the universe. This is not because Muslim jurists did not care about justice or ethics, but because the craft of the lawyer is to work within the bounds of the authoritative, interpretive, incremental, and cumulative. Muslim jurists worked incrementally from one interpretive example to another in a disciplined, deliberative process of investigating textual and communal problems. To do otherwise – to anchor legal determinations on ontological moral goals or ultimate ­principles – would risk undermining the legitimacy and authority of the entire juristic enterprise. Of course, occasionally on exceptional issues involving pressing public policy or ethical problems, jurists could and did use instrumentalities such as istih․sa¯ n (equity) or istis․la¯․h (breaking with on-point precedent) to achieve morally satisfactory results. But this was not done as a matter of convention or as a regular process because doing so would in due course undermine the integrity of the technical mechanics and legitimacy of the legal system. Part of the essential function of law is to direct actions by providing normative guidance. However, law does not always succeed in guiding the behaviour of its subjects. Law attempts to provide authoritative directives to autonomous agents in the hope of obtaining their deference. When or how often a legal system succeeds in directing the behaviour of agents is pertinent to evaluating the relevance of law, but obtaining compliance with its directives does not define a legal system. Compliance is relevant to evaluating the effectiveness of a legal system, but not its nature. Nevertheless, legal systems do attempt to provide normative guidance and obtain compliance and deference from a pertinent community. I am not arguing that legal systems are autonomous, or that jurists are disinterested in whether people obey the law. Jurists and the legal systems they represent are affected by sociological factors to the extent that their own legitimacy, prestige or material interests are impacted by the determinations they produce. However, in terms of their training and loyalty, jurists primarily work within their professional guilds and receive their most immediate feedback and incentives from fellow jurists who share their expertise and linguistic practice. This means that on most issues, jurists rely on the relationship of trust and deference they (the jurists) hope the legal system has built with its pertinent community, and that such a relationship will be sufficient to comply with the legal system’s normative commands.62 This view of law is very different from the one espoused by the legal positivism of Jeremy Bentham, John Austin or Hans Kelsen. However, law is not about rules or the threat of the use of force – law is about a process of reasoning, linguistic use, exposition and authoritativeness. 33

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Islamic law is quintessentially about the art of the faqı¯h ( jurist) – until the birth of the faqı¯h, there was no Islamic law and without the ‘science’ of fiqh, Islamic law cannot exist. Islamic law is constituted of the consistent and continued use or practice of the discipline of deliberative reasoning with the purpose of investigating the Divine Will as it applies to the community of believers. Without the Divine Will, Islamic law is no longer Islamic. Without a presumed community of believers who care about what God wants from them, Islamic legal reasoning would no longer be about practical problems but would become purely abstract. But what defines Islamic law is not whether a community of believers exists – what does define Islamic law is the cumulative traditions of interpretation and reasoning, linguistic practices and disciplined deliberations about the Divine Will as it applies to creation and the community of believers. What defines Islamic law is the convention consisting of numerous explorations, investigations, hypotheticals, debates and disputations about what God demands from the community of believers. Islamic law is not about what Muslims have done or practiced through history; it is about what a class of experts, including judges, have said Muslims should do, or at least what God wants them to do, through history.63 The primary instrument of Islamic law has been the sustained, deliberate and cumulative reasoning from one example to another, one case to another, and one disputation to another. This instrument is wielded and operated through the craftsmanship of jurists. Islamic law is a convention and practice, but it is a convention and practice of disciplined deliberation that is purposeful and cumulative. In many ways, Islamic law is the ongoing and continuing history of issues and problems, but only as such issues and problems have been understood, described, and resolved by jurists.

Notes * Professor of Law, UCLA School of Law, and the Omar and Azmeralda Alfi Distinguished Professor in Islamic Law. I am very grateful to Dana Lee, Zezen Zaenal Mutaqin, Misha Checkovich and my wife, Grace Song, for their invaluable feedback and assistance. 1 The claim that Islamic law is an extreme case of jurist’s law and casuistic in nature famously belongs to Joseph Schacht, An Introduction to Islamic Law (1964; repr. New York: Clarendon Press, 1982), 209. 2 See Baudouin Dupret, What is the Shari’ah? (London: Hurst & Co., 2018), 115. 3 Ibid., 133. 4 Ibid., 137–141. 5 See Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2013). 6 Hallaq describes this as the ‘ruin of Islamic law’. Wael B. Hallaq, ‘“Muslim Rage” and Islamic Law’, Hastings Law Journal 54 (August 2003): 1705–1720, 1712. 7 See Murteza Bedir, ‘Fikih to Law: Secularization through Curriculum’, Islamic Law and Society 11, no. 3 (2004): 386; Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave Macmillan, 2011); Dora Glidewell Nadolski, ‘Ottoman and Secular Civil Law’, International Journal of Middle East Studies 8, no. 4 (1977): 518; Haim Gerber, State, Society and Law in Islam: Ottoman Law in Comparative Perspective (Albany: State University of New York Press, 1994). 8 Ebrahim Moosa, ‘Recovering the Ethical: Practices, Politics, Tradition’, in The Shariʿa: History, Ethics and Law, ed. Amyn B. Sajoo (London: I. B. Tauris, 2018), 47. 9 H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71, no. 4 ­( February 1958): 593–629; Cristobal Orrego, ‘H. L. A. Hart’s Arguments against Classical Natural Law Theory’, American Journal of Jurisprudence 48 (2003): 297–324; H. L. A. Hart, ‘The New Challenge to Legal Positivism (1979)’, Oxford Journal of Legal Studies 36, no. 3 (2016): 459–475; H. L. A. Hart, ‘Law in the Perspective of Philosophy: 1776–1976’, New York University Law Review 51, no. 4 (­October 1976): 538–551; Dan Priel, ‘Toward Classical Legal Positivism’, Virginia Law Review 101, no. 4 ( June 2015): 987–1022; Andrei Marmor, ‘The Separation Thesis and the Limits 34

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of Interpretation’, Canadian Journal of Law and Jurisprudence 12, no. 1 ( January 1999): 135–150; Andrei Marmor, ‘Legal Positivism: Still Descriptive and Morally Neutral’, Oxford Journal of Legal Studies 26, no. 4 (December 2006): 683–704; Joseph Raz, ‘About Morality and the Nature of Law’, American Journal of Jurisprudence 48 (2003): 1–16; Joseph Raz, ‘The Identity of Legal Systems’, California Law Review 59, no. 3 (May 1971): 795–815; Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’, American Journal of Jurisprudence 19 (1974): 94–111; Joseph Raz, ‘Legal Principles and the Limits of Law’, Yale Law Journal 81, no. 5 (April 1972): 823–854. 10 Inclusive legal positivists, as opposed to exclusive legal positivists, believe that positive law is not necessarily separate from moral criteria. At times and under certain conditions, first order norms (or morality) should guide judicial behaviour. Whether inclusive legal positivism or what is also known as soft positivism is distinguishable from natural law is debatable. Kenneth Einar Himma, ‘Incorporationism and the Objectivity of Moral Norms’, Legal Theory 5, no. 4 (December 1999): 415–434; Kenneth Einar Himma, ‘H. L. A. Hart and the Practical Difference Thesis’, Legal Theory 6, no. 1 (March 2000): 1–44; Matthew H. Kramer, ‘On Morality as a Necessary or Sufficient Condition for Legality’, American Journal of Jurisprudence 48 (2003): 53–82; Matthew H. Kramer, ‘On the Separability of Law and Morality’, Canadian Journal of Law and Jurisprudence 17, no. 2 ( July 2004): 315–336; Matthew H. Kramer, ‘Throwing Light on the Role of Moral Principles in the Law: Further Reflections’, Legal Theory 8, no. 1 (March 2002): 115–144; Matthew Kramer, ‘How Moral Principles Can Enter into the Law’, Legal Theory 6, no. 1 (March 2000): 83–108; Matthew H. Kramer, ‘Coming to Grips with the Law: In Defense of Positive Legal Positivism’, Legal Theory 5, no. 2 ( June 1999): 171–200; W. J. Waluchow, Inclusive Legal Positivism (Oxford: Oxford University Press, 1994); Brian Bix, ‘Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate’, Canadian Journal of Law and Jurisprudence 12, no. 1 ( January 1999): 17–34; Brian Bix, ‘On the Dividing Line between Natural Law Theory and Legal Positivism’, Notre Dame Law Review 75, no. 5 (August 2000): 1613–1624; Brian Bix, ‘Jules Coleman, Legal Positivism, and Legal Authority’, QLR 16, no. 3 (Fall 1996): 241–254. 11 In Thomistic natural law theory, humans must actively participate in the eternal law of God by using reason in conformity with the natural law to discern what is good and evil. This obligation flows from the duty to do good and avoid evil. Daniel Mark Nelson, The Priority of Prudence: Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics (University Park: Pennsylvania State University Press, 1992); Steven A. Long, ‘Natural Law or Autonomous Practical Reason: Problems for the New Natural Law Theory’, in St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives, ed. John Goyette, Mark S. Latkovic and Richard S. ­Myers (Washington, DC: Catholic University of America Press, 2004), 165–193; Ralph McInerny, ‘On Knowing the Natural Law’, in The Ethics of St. Thomas Aquinas, ed. Leo J. Elders and Klaus ­Hedwig (Vatican City: Libreria Editrice Vaticana, 1984), 133–160; G. B. Siniscalchi, ‘Modified Divine Commands, Atheistic Moral Realism, and Thomistic Natural Law’, New Blackfriars 96, no. 1064 (March 2015): 419–444; Michael Betram Crowe, The Changing Profile of Natural Law (The Hague: Martinus Nihoff, 1977); John Goyette, Mark S. Latkovic and Richard S. Myers (eds), St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Washington, DC Catholic University of America Press, 2004). On the development of natural law theory from the ancient Greeks to the Christian thinkers of medieval Europe see, Fr R. O’Brien Waugh, ‘Natural Law’, University of New Brunswick Law Journal 16 (1966): 34–48; John Finnis, ‘Natural Law Theory: Its Past and Its Present’, American Journal of Jurisprudence 57 (2012): 81–102; Fulvio Di Blasi, God and the Natural Law: A Rereading of Thomas Aquinas, trans. David Thunder (South Bend, IN: St Augustine’s Press, 2001); Howard Kainz, Natural Law: A Reevaluation (Peru, IL: Open Court, 2004); Matthew Levering, Biblical Natural Law: A Theocentric and Teleological Approach (New York: Oxford University Press, 2008). 12 Robert P. George, ‘Natural Law’, American Journal of Jurisprudence 52 (2007): 55–76; Robert P. George, ‘One Hundred Years of Legal Philosophy’, Notre Dame Law Review 74, no. 5 ( June 1999): 1533–1550; R. George Wright, ‘Ministers of the Law: A Natural Law Theory of Legal Authority’, Journal of Law and Religion 26, no. 2 (2010–2011): 609–620; Philip Soper, ‘Some Natural Confusions about Natural Law’, Michigan Law Review 90, no. 8 (August 1992): 2393–2423; Philip Soper, ‘Law’s Normative Claims’, in The Autonomy of Law, ed. Robert P. George (Oxford: Clarendon Press, 1996), 215–247; Michael S. Moore, ‘Moral Reality Revisited’, Michigan Law Review 90, no. 8 (August 1992): 2424–2533; Michael S. Moore, ‘A Natural Law Theory of Interpretation’, Southern California Law Review 58, nos 1 & 2 ( January 1985): 277–398. 35

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13 In her well-known book Sinha discusses what she calls divine and prophetic theories of law, natural law theories, idealist theories, positivist theories, historical or Marxist theories, sociological theories, realist theories, phenomenological theories of law, and Critical Legal Studies. See Surya Prakash Sinha, What is Law? The Differing Theories of Law (New York: Paragon House, 1989), 53–213. 14 I am not discounting or ignoring sociological theories of law. Sociological legal theories often focus on the scientific analysis of legal practice as a system of behaviour and tend to see law as a system of social control. However, in my opinion, unlike positivist, natural law or interpretivist approaches, sociological approaches provide a useful methodology for critiquing the dynamics of power in legal practice but do not provide a satisfying way of understanding the nature of law. On sociology of law, see Roscoe Pound, ‘Sociology of Law and Sociological Jurisprudence’, University of Toronto Law Journal 5, no. 1 (1943): 1–20; Roman Tomasic, review of The Sociology of Law: An Introduction, by Roger Cotterrell, Australian Journal of Law and Society 2 (1985): 90–95; Donald J. Black, ‘The Boundaries of Legal Sociology’, Yale Law Journal 81, no. 6 (May 1972): 1086–1101; Frank Munger, ‘Sociology of Law for a Postliberal Society’, Loyola of Los Angeles Law Review 27, no. 1 (November 1993): 89–126; Rita J. Simon and James P. Lynch, ‘Sociology of Law: Where We Have Been and Where We Might Be Going’, Law & Society Review 23, no. 5 (1989): 825–848; Richard Abel, ‘What Else is Sociology of Law? Reflection on John Griffiths’s What is Sociology of Law?’ The Journal of Legal Pluralism and Unofficial Law 49, no. 3 (2017): 373–379. 15 See Shaheen Sardar Ali, Modern Challenges to Islamic Law (Cambridge: Cambridge University Press, 2016), 20–22. 16 For a sustained argument of Shariʿah as nomos, see Sohaira Z. M. Siddiqui, Knowledge and Law under the ʿAbbasids: An Intellectual Portrait of al-Juwaynı¯, (Cambridge: Cambridge University Press, 2018), 24–5, 199–106. 17 Subhi Mahmasani, Falsafat al-Tashriʿ al-Islami, 3rd edn (Beirut: Dar al-ʿIlm li-l-Malayin, 1961), 199–200; Muhammad Abu Zahrah, Usul al-Fiqh (Cairo: Dar al-Fikr al-ʿArabi, n.d.), 291; Mustafa Zayd, Al-Maslaha fi al-Tashriʿ al-Islami wa-Najm al-Din al-Tufi, 2nd edn (Cairo: Dar al-Fikr al-ʿArabi, 1964), 22; Yusuf al-ʿAlim, al-Maqasid al-ʿAmma li-l-Shariʿah al-Islamiyya (Herndon, VA: International Institute of Islamic Thought, 1991), 80; Muhammad ibn ʿAli al-Shawkani, Talab al-ʿIlm wa-Tabaqat al-Mutaʿallimin (n.p.: Dar al-Arqam, 1981), 145–151. 18 Khaled Abou El Fadl, Reasoning with God: Reclaiming Shariʿah in the Modern Age (Lanham, MD: Rowman and Littlefield, 2014), 298–9. 19 Abu al-Walid ibn Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Cairo: Dar al-Shuruq al-Dawliyya, 2004), 760. 20 Shams al-Din ibn Qayyim al-Jawziyya, Iʿlam al-Muwaqqiʿin ʿan Rabb al-ʿAlamin (Beirut: al-Maktaba al-ʿAsriyya, 2003), 3:13. 21 Intisar Rabb, ‘The Islamic Rule of Lenity: Judicial Discretion and Legal Canons’, Vanderbilt Journal of Transnational Law 44: 1299–1351, 1329–30 (2011); Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2015), 185–225; Rami Koujah, ‘A Critical Review Essay of Anver M. Emon’s Islamic Natural Law Theories’, UCLA Journal of Islamic and Near Eastern Law 14, no. 1 (2015): 1–28. 22 Intisar Rabb writes that Muslim jurists used ‘legal canons to thread the needle of power …’ See Intisar Rabb, ‘The Curious Case of Bughaybigha’, 661–883; ‘Land and Leadership in Early Islamic Societies’, in Justice and Leadership in Early Islamic Courts, ed. Intisar Rabb and Abigail Krasner Balbale (Cambridge, MA: Harvard University Press, 2017), 29. 23 Jurists often debated whether and to what extent moral laws are intuitively known or should be known. For instance, are the prohibitions against lying, cheating, stealing and murder known, or should they be known intuitively? Likewise, they debated whether the prohibition of fornication, adultery and other sexual crimes are intuitively or naturally known or should be known. 24 Mahmasani, Falsafat al-Tashriʿ, 59; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. edn (Cambridge: Islamic Texts Society, 1991), 285. 25 Muhammad Abu al-Harith al-Ghazzi, Mawsuʿat al-Qawaʿid al-Fiqhiyya (Beirut: n.p., 1995), 1:33; Ahmad ibn Muhammad al-Zarqa, Sharh al-Qawaʿid al-Fiqhiyya, ed. Mustafa Ahmad al-Zarqa, 4th edn (Damascus: Dar al-Qalam, 1996), 227–229; Mahamsani, Falsafat al-Tashriʿ, 200–202; C. R. Tyser (trans.), The Mejelle: Being an English Translation of Majallah-el-Ahkam-Adliya and a Complete Code on Islamic Civil Law (Lahore: Punjab Educational Press, 1967), 8. 26 Abu al-Maʿali al-Juwayni, Kitab al-Ijtihad min Kitab al-Talkhis (Damascus: Dar al-Qalam, 1987), 50–51. 36

What type of law is Islamic law?

27 Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi (Salt Lake City: University of Utah Press, 1992), 734–738. 28 Mahmasani, Falsafat al-Tashriʿ, 168; Kamali, Principles of Islamic Jurisprudence, 197; Hallaq, Islamic Legal Theories, 83–84. 29 See Ahmad Zaki Hammad, Islamic Law: Understanding Juristic Differences, 44. This statement has also been attributed to al-Shafiʿi. Another version of this report states, ‘Abu Hanifah is reported to have said: ‘We know [that] this [position] is one opinion, and it is the best we can arrive at. [If ] someone arrives at a different view, then he adopts what he believes [is best] and we adopt what we believe [is best].’ Abu Muhammad ibn Saʿid ibn Hazm, Kitab al-Fasl fi al-Milal wa-l-Ahwaʾ wa-l-Nihal (Egypt: al-Matbaʿah al-Adabiyya, 1317 A.H.), 2:46; Mahmasani, Falsafat al-Tashriʿ, 42. 30 Ahmad ibn ʿAbd al-Rahim al-Dahlawi, Shah Wali Allah, al-Insaf fi Bayan Sabab al-Ikhtilaf fi al-­ Ahkam al-Fiqhiyya (Cairo: al-Matbaʿa al-Salafiyya, 1385), 12; Jalal al-Din ʿAbd al-Rahman alSuyuti, ­I khtilaf al-Madhahib, ed. ʿAbd al-Qayyim Muhammad Shafiʿ al-Bastawi (Cairo: Dar al-Iʿtisam, 1404 A.H.), 22–23. 31 Shah Wali Allah, al-Insaf, 12; al-Suyuti, Ikhtilaf al-Madhahib, 22–23; Yasin Dutton, The Origins of Islamic Law: The Qurʾan, the Muwattaʾ, and Madinan ʿAmal (Richmond, Surrey: Curzon Press, 1999), 29; Patricia Crone and Martin Hinds, God’s Caliph: Religious Authority in the First Centuries of Islam (Cambridge: Cambridge University Press, 1986), 86. Incidentally, there is a disagreement over whether the Caliph in question was al-Mansur (d. 158/775) or Harun al-Rashid (d. 193/809). 32 Al-Juwayni, Kitab al-Ijtihad, 61. 33 Sayf al-Din Abu al-Hasan ʿAli ibn Abi ʿAli ibn Muhammad al-Amidi, al-Ihkam fi Usul al-Ahkam, ed. ʿAbd al-Razzaq ʿAfifi, 2nd edn (Beirut: al-Maktab al-Islami, 1402 A.H.), 4:183; Jamal al-Din Abi Muhammad ʿAbd al-Rahim ibn al-Hasan al-Asnawi, al-Tamhid fi Takhrij al-Furuʿ ʿala al-Usul, 3rd edn (Beirut: Muʾassasat al-Risala, 1984), 531–534; Muhammad ibn al-Hasan al-Badakhshi, Sharh al-Badakhshi Manahij al-ʿUqul maʿa Sharh al-Asnawi Nihayat al-Sul (Beirut: Dar al-Kutub ­a l-ʿIlmiyya, 1984), 3:275–281; Abu Hamid al-Ghazali, al-Mustasfa, 2:375–378; al-Juwayni, Kitab al-Ijtihad, 41; Abu al-Thanaʾ Mahmud ibn Zayd al-Lamishi, Kitab fi Usul al-Fiqh, ed. ʿAbd al-Majid Turki (Beirut: Dar al-Gharb al-Islami, 1995), 202–203; Shihab al-Din al-Qarafi, Sharh Tanqih al-Fusul fi Ikhtisar al-Mahsul fi al-Usul, ed. Taha ʿAbd al-Raʾuf Saʿd (Beirut: Dar al-Fikr, 1973), 440; Fakhr al-Din al-Razi, Al-Mahsul fi ʿIlm Usul al-Fiqh, ed. Taha Jabir al-ʿAlwani, 3rd edn (Beirut: Muʾassasat al-Risala, 1997), 6:34–35, 6:43–50; Zaki al-Din Shaʿban, Usul al-Fiqh al-Islami (Egypt: Matbaʿat Dar al-Taʾlif, 1965), 418–419. 34 Intisar Rabb describes al-Juwayni’s argument as substantive and procedural legal minimalism. See Intisar Rabb, ‘Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear’, in Law and Tradition in Classical Islamic Thought: Studies in Honor of Professor Hossein Modarressi, ed. Intisar Rabb, Asma Sayeed, Michael Cook and Najam Haider (New York: Palgrave Macmillan, 2013), 145–166. 35 On Islamic legal pluralism, see Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi (New York: Brill, 1996); Intisar Rabb, ‘Reasonable Doubt in Islamic Law’, Yale Journal of International Law, 40 (2015): 41–94, 90–91. Also see Muhammad Fadel, The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers (New Haven, CT: Yale University Press, 2017), 1–55. Fadel contends that Qarafi argued Islamic legal pluralism is hinged on judicial determinations. Once a judge issues a decision (h․ukm) the judge’s decision becomes God’s law and there is a moral obligation to obey such a judgment. 36 The Arabic is ‘kull mujtahid mus․¯ı b’ and ‘li-kull mujtahid nas․¯ı b’. 37 See Jasser Auda, Maqasid al-Shari’ah as Philosophy of Islamic law (Herndon, VA: International Institute of Islamic Thought, 2008); Idris Nassery, Rumee Ahmed and Muna Tatari (eds), The Objectives of Islamic Law: The Promises and Challenges of the Maqasid al-Shari’ah (London: Rowman and Littlefield, 2018). 38 See Sherman Jackson, ‘The Primacy of Domestic Politics: Ibn Bint Al-Azz and the Establishment of the Four Chief Judgeships in Mamluk Egypt’, Journal of the American Oriental Society 115 (1995): 52–65; Baber Johansen, ‘Truth and Validity of the Qadi’s Judgment: A Legal Debate among Sunnite Muslim Jurists from the Ninth to the Thirteenth Centuries’, Recht van de Islam 14 (1997): 1–26. 39 See George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981); George Makdisi, ‘The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court’, Zeitschrift fur Geschichte der arabisch-­islamischen Wissenschaften, ed. Fuat Sezgin (Frankfurt: Institut fur Geschichte der arabisch-islamischen 37

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40

41

42 43

4 4 45 46 47 48 49 50

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52 53 54

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Wissenschaften, 1984); Monica Gaudiosi, ‘The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College’, University of Pennsylvania Law Review 136 (1988): 1231–1261. Muhammad Amin ibn ʿUmar ibn ʿAbidin, ‘Nashr al-ʿArf fi Binaʾ Baʿd al-Ahkam ʿala al-ʿUrf ’, in Majmuʿat Rasaʾil Ibn ʿAbidin (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, 1970): 112–163; Muhammad Abu Zahrah, Usul al-Fiqh (Cairo: Dar al-Fikr, n.d.), 217–219; Muhammad Khalid Masud, Islamic Legal Philosophy: A Study of Abu Ishaq al-Shatibi’s Life and Thought (New Delhi: International Islamic Publishers, 1989), 226, 293–299. Muhammad Saʿid Ramadan al-Buti, Dawabit al-Maslaha fi al-Shariʿah al-Islamiyya, 6th edn (Beirut: Muʾassasat al-Risala, 1992), 207–216, 285–357; ʿAllal al-Fasi, Maqasid al-Shariʿah al-Islamiyya wa-Makarimuha, 5th edn (Beirut: Dar al-Gharb al-Islami, 1993), 137–140; Mahmasani, Falsafat al-Tashriʿ, 172–175; John Makdisi, ‘Legal Logic and Equity in Islamic Law’, American Journal of Comparative Law 33 (1985): 63–92; Kamali, Principles of Islamic Jurisprudence, 167–168; Hallaq, Islamic Legal Theories, 107–113; Dutton, Origins of Islamic Law, 34. Mahmasani, Falsafat al-Tashriʿ, 172–175; Kamali, Principles of Islamic Jurisprudence, 253–257. For instance, Najm al-Din al-Tufi (d. 716/1316) was widely criticized by his fellow jurists when he suggested that public interest could be an independent and sufficient source of law even with the existence of text that is on point on a particular issue. Mustafa Zayd, al-Maslaha fi al-Tashriʿ ­al-Islami wa Najm al-Din al-Tufi, 2nd edn (Cairo: Dar al-Fikr al-ʿArabi, 1964), 65–172; al-Buti, Dawabit alMaslaha, 178–189; Masud, Islamic Legal Philosophy, 165, 174–175; Hallaq, Islamic Legal Theories, 208; Ihsan Abdul Baghby, ‘Utility in Classical Islamic Law: The Concept of “Maslahah” in “Usul alFiqh”’, (PhD diss., University of Michigan, 1986), 166–170. See Sherman Jackson, ‘Fiction and Formalism: Toward a Functional Analysis of Usul Al-Fiqh’, in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 178. Abu Hamid al-Ghazali, Ihyaʿ ʾUlum al-Din, ed. Ahmad ʿInaya and Ahmad Zahwa (Beirut: Dar al-Kitab al-ʿArabi, 2008), 28. Ibid., 33. See Ibn Rushd, Bidayat al-Mujtahid, 759. Abu al-Hasan al-Mawardi, Al-Ahkam al-Sultaniyya wa-l-Wilaya al-Diniyya (Beirut: Dar al-Kutub al-ʿIlmiyya, 1985), 250; Abu al-Hasan al-Mawardi, Adab al-Qadi, ed. Muhammad Muhyi Hilal Sarhan (Baghdad: Matbaʿat al-Irshad, 1971): 14–16. Rabb, ‘Reasonable Doubt in Islamic Law’, 67–69. In this context, Ibn Rushd cites the Prophet’s narrative in which the Prophet explained that he (the Prophet) is but a human being, and the Prophet warned that in adjudicating disputes, if he rules in favour of an undeserving party, this ruling will not absolve the unjust litigant from liability before God in the Hereafter. The Prophet explained that he may be swayed by the arguments of the litigants one way or the other, and therefore, unknowingly rule in favour of the unjust party. But this judgment does not absolve the wrongful party from liability in the Hereafter. Ibn Rushd, Bidayat al-Mujtahid, 748. Mohammad Fadel (trans.), The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers (New Haven, CT: Yale University Press, 2017), 1–55. Fadel argues that the 13th-century jurist al-Qarafi did in fact maintain that a judge’s decision becomes God’s law and there is a moral obligation to obey such a judgment. Baber Johansen, ‘Truth and Validity of the Qadi’s Judgment: A Legal Debate Among Sunnite Muslim Jurists from the Ninth to the Thirteenth Centuries’, Recht van de Islam 14 (1997): 1–26. See Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001). For instance, even if an act would not be considered legal coercion, exercising undue influence or taking advantage of someone’s weakness could be a sin, even if not legally justiciable. Similarly, failing to feed a starving person who subsequently dies of starvation might not lead to criminal culpability in this life, but it is a grave sin. See Muhammad ibn Muhammad al-Shirbini, Mughni al-Muhtaj ila Maʿrifat Maʿani Alfaz al-Minhaj, ed. Muhammad Khalil ʿAyatani (Beirut: Dar al-Maʿrifa, 1997), 4:415; Muhammad ibn Ahmad al-Sarakhsi, Kitab al-Mabsutt, ed. Kamal ʿAbd al-ʿAzim al-ʿInani (Beirut: Dar al-Kutub al-ʿIlmiyya, 2001), 24:77; Abu Bakr ibn Masʿud al-Kasani, Kitab Badaʾiʿ al-Sanaʾiʿ fi Tartib al-Sharaʾiʿ (Cairo: Zakariyya ʿAli Yusuf, 1968), 9:4483; Dana E. Lee, ‘At the Limits of Law: Necessity in Islamic Legal History’ (Princeton University, unpublished dissertation, 21 June 2018); Khaled Abou El Fadl, ‘The Common and Islamic Law of Duress’, Arab Law Quarterly 2 (1991): 6.

What type of law is Islamic law?

55 Sherman Jackson, ‘The Primacy of Domestic Politics: Ibn Bint al-Aʿazz and the Establishment of the Four Chief Judgeships in Mamluk Egypt’, Journal of the American Oriental Society 115 (1995): 52–65; Joseph Escovitz, ‘The Establishment of Four Chief Judgeships in the Mamluk Empire’, Journal of the American Oriental Society 102 (1982): 529–31; Yossef Rappoport, ‘Legal Diversity in the Age of Taqlid: The Four Chief Qadi under the Mamluks’, Islamic Law and Society 10, no. 2 (2003): 210–228. See also E. Tyan, Histoire de l’oranisation judicaire en pays d’Islam, 2nd edn (Leiden: Brill, 1960). 56 Abou El Fadl, Reasoning with God, 320. 57 See Intisar Rabb, ‘Doubt in Islamic Law’, 185–225; Luqman Zakariyah, Legal Maxims in Islamic Criminal Law: Theory and Applications (Leiden: Brill, 2015). 58 Cherif Bassiouni, The Shariʿa and Islamic Criminal Justice in Time of War and Peace (Cambridge: Cambridge University Press, 2013), 132–144. 59 See Intisar Rabb, ‘Society and Propriety: The Cultural Construction of Defamation and Blasphemy as Crimes in Islamic Law’, in Accusations of Disbelief in Islam: A Diachronic Perspective on Takfir, ed. Sabine Schmidtke, Camila Adang and Hassan Ansari (Leiden: Brill, 2016), 434–62. 60 J. N. D. Anderson, Law Reform in the Muslim World (London: Athlone Press, 1976). 61 On the ‘invention of Islamic law’, see Dupret, What is the Shari’ah?, 133–164. 62 On agency, autonomy, deference and authority in Islamic law, see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority, and Women (Oxford: Oneworld Press, 2001), 96–133. 63 Incidentally, in their eagerness to reform Islamic law, some contemporary Muslims have attempted to popularize or ‘democratize’ Islamic law by contending that lay Muslims are entitled to practise ijtihad or that all Muslims have a right to participate in the production of Islamic law. As egalitarian as these arguments might sound, such arguments often lack systematic coherence, and they threaten to unravel the very logic of a legal system. Moreover, these egalitarian arguments often raise the specter of transforming Islamic law into the stereotypical paradigm of qadi justice or whimsical justice unfettered by evidence, precedent, or method. On qadi justice see Intisar A. Rabb, ‘Against Kadijustiz: On the Negative Citation of Foreign Law,’ Suffolk University Law Review 48, no. 2 (2015): 343–378.

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Part I

Jurisprudence and ethics

1 Shariʿah, natural law and the original state Ahmed Izzidien

Introduction Natural law proposes to traverse boundaries set up by unique legal epistemologies. In an attempt to do so, natural law presents an opportunity for delineating a depolarizing common ground for normally incompatible and competing legal theories. To characterize the dynamic when concepts of natural law appeared within the deliberations of legal theoreticians of the Muslim traditions, this chapter shall attempt to chart those ideas that presented in Islamic legal theories when they interacted with concepts of natural law. It shall consider at the intellectual challenges this dynamic produced and the legal theories that emerged. In terms of the organization of the chapter, it begins with the story of a boy who, to his surprise, finds himself marooned on an island. The boy attempts, based on first principles, to arrive at a formulation of law and a theory of being in the cosmos. For the second part, the chapter charts those ideas that came into being within Islamic legal traditions – from their formative period to contemporary times – that relate to natural law. The third and final part of the chapter considers how these deliberations came to form the political heritage that has articulated itself in parts of our world today.

The unexpected journey The story of the island-marooned boy. Building a case for natural law based on first principles. A young boy woke in his canoe as it edged itself onto the beach of a seemingly deserted island. He could not recall how it came to be that he had found himself adrift. He appeared to be in a state of amnesia. Otherwise healthy, he began to explore the island. Of the life he found were small yet organized colonies of insects. In his observation, he considered that the perpetuation of one colony was dependent on a previous one. It appeared that all living things on the island were in an existential need of a predecessor. Yet, he reasoned that to bring this chain of events into being, there must have been a moment in the past that needed no ­predecessor – otherwise, the boy reasoned, this chain of events could not have begun. This led the boy to hold that an absolute being must have existed, one without beginning. 43

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Further, if it was absolute, there would be no room for a ‘second’ absolute being, as to the boy, this would mean the first was not actually absolute – a necessary condition for the life he observed around him. Thus, if the boy could not have been, by definition, made absolute, and indeed was not absolute, he asked, what was his own nature? Given the absoluteness of the original being, the boy reasoned that the best state of being for any other being would be one that was able to derive the most, in every possible manner, from the absoluteness of the absolute being. That is, from absoluteness. For this, he reasoned that a non-absolute being would have to be the complete opposite of absoluteness, that is, a being that is absolutely and inherently in need ( faqı¯r bi-dha¯ tihı¯ ). Thus, the boy saw his inherent need and mortal nature as perfect for a being of his kind. This put him as a form of ‘key’ to the ‘lock’ that was the absolute being. As another absolute ‘lock’ could never be brought into existence by definition, a key was best placed to gain maximally from the said absolute lock. Thus he reasoned that he had been given a chance to gain from the absolute in the best possible manner. It appeared to him that the absolute being had a good will towards him. This was particularly true to him given that the absolute being – in being absolute (ghanı¯ bi-dha¯ tihı¯) – had no inherent need for him, by definition. As the boy began to live on the deserted island, he discovered more of his innate needs. Where he felt helpless and could not will for something to occur, he would consider: His own perfection, the best state of being for himself to be in, was the polar opposite of the Absolute being. Since the absolute being was by definition able to grant its own will, and since the absolute being, in wishing good for him, had made the boy its polar opposite, then by definition the boy should be inherently unable to grant his own will. The boy reasoned that the opposite of granting one’s will was to ‘ask’. The act of asking the absolute being became the ultimate realization of this polarity – one between the absolute and its opposite. In an analogy, the boy, short of being an absolute being that inherently did not require food, would find that its opposite state, one that was able to enjoy food, was the best state of being for him. Thus, to the boy, asking became a realization of the grace of the absolute being towards him, an essence of the relationship – mukh al-ʿiba¯ da. This led the boy to hold that the absolute would still be influential in the world today, otherwise there would be no apparent reason for instilling such a need to ask in him. As time passed, the boy felt an innate desire for certain elements on the island and an aversion to others. He was comfortable with what brought him benefit (mas․lah․a) yet not with harm (mafsada). For now, he could fish to his own desire; yet, he wondered, what if another like him were to appear? He could see either the domination of one over the other, with one gaining pleasure, the other sadness, or the cooperation of the two. He held that even if he were to dominate, he would not wish to be on the receiving end of such dominance. A person seemed innately repulsed by the idea of being on the receiving end of an act of unfairness. Thus he held that all transactions would be best based on this idea, this axiom, ‘Do onto others what you would wish upon yourself ’. He appeared to be able to discern a distinction between acts that he would wish for others – and by extension himself, and acts that he would not wish on others – and by extension himself. The first acts he called ‘Good’, the latter he called ‘Bad’. It appeared to the boy that, given his innate need, he would appreciate when he was unable to fish, due to injury for example, that another boy would help him. Based on the above axiom, he held that he too should be willing to help others with the same. Then one day a new boy appeared, then many more.

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The island’s society In living with the other boys, in enjoying the food of the island, the boy felt an innate gratefulness to the original source. However, the boy then realized, that he could choose not to thank the absolute being or those around him – though he would not wish the same for himself. Thus he realized that while he had been given the opportunity to gain maximally from the absolute being, he could also fall short of what he felt was ‘owed’ based on the axiom. Thus he called these ‘rights’ – the absolute being’s ‘rights’ and those of the other boys. Further, seeing as he had not brought the other boys into existence, he held that he had no say over them; they were inherently not his, thus not at his disposal. All of the boys including himself were, however, in the mind of the boy, of the absolute. Thus he came to the conclusion that while he had the best placement – inherent – in himself to live, he could fall short of these ‘rights’. Yet, to the boy, these were not unreasonable rights. They were in accordance with the axiom and they seemed innate. Thus it appeared that the absolute being had afforded him grace by giving him the opportunity to live life in a manner that was also in line with his innate nature. This being the case, and based on the first principles he had elaborated, the boy reasoned that any pain he endured must be due to a wisdom of the absolute that he had not yet realized. Then came the calamities. A number of disagreements and fights broke out between the boys. His ankle was badly injured. He felt the urge to retaliate, to become bitter and ­vengeful. Retreating for time to consider, he came to a realization: He seemed innately ­cognizant that in choosing between Good and Bad, he would have wished any other boy to take the Good option. This would have been the Good thing to do since he would want it for himself. He realized that while he could take the Bad option and strike down his adversaries, he could gain by acting on the Good, given his innate appreciation for it. While he may outwardly be in pain, inwardly, he felt innately at peace in choosing this option as he felt he had gained something he would not have otherwise, namely compassion and patience. These two qualities he would wish for others. Thus it appeared that given his innate appreciation for Good, he had gained by choosing to do Good. Yet, what about compensation? He held, according to the axiom and by extension his ‘rights’, that the boy who injured him should compensate him. Yet what ‘right’ would he have to force the boy to compensate him? He reasoned: One boy had no right over another – he had not created him. Thus to maintain the victim’s right to not be harmed, one could use force to deflect an attack. After such an attack, the offender then ‘owed’ what he had damaged. Such was in line with the axiom and in line with his ‘rights’. Further, even though the offending boy had acted in a Machiavellian manner, seeing harm as justifiable for personal gain, the offending boy still would not wish the same to be done to him. The axiom appeared inescapable, innate. Even if a person saw being unfair as justified for gaining power, the same person would not wish it on himself. There appeared to the boy to be an innate discontentment with unfairness. Further, in the offending boy’s own innate axiom, he also recognized it as ‘Bad’. His own self could hold him to account, and at heart, the offending boy would not want it for himself. The other boys, having subscribed to the same axiom and idea of ‘rights’, helped him obtain what was customarily known to be the amount of fish one could gain without such an injury. From that day, the boys etched in a piece of timber two axioms: ‘No one shall harm another’ and ‘Custom serves as precedent’.

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The idea of such etching was new to him and he quickly realized that the more boys that went against their innate axiom, the longer the list of ‘laws’ would become. Then an event occurred that challenged the very place of the first axiom. One of the young men had been caught by a wild animal. Armed only with spears, the others realized it meant the death of the boy if they attempted to spear the wild animal. While the axiom was that no one is to be harmed, they knew that the animal would turn and kill the younger boys trapped nearby. Not doing anything would result in a greater harm. Thus the boy reasoned that, in this case, throwing the spears was acceptable, though in and of itself a Bad act. The spears were cast, both animal and boy perished. Thus was born a new perspective – one based in circumstance, its premise: ‘An act can be acceptable though Bad – for its own sake – due to an impinging circumstance’. The main distinguisher between this and the axiom was that such circumstances, by virtue of the first axiom, must be ‘actively avoided and, where possible, removed’. Thus the third axiom became: ‘Harm must be removed’. None of the boys faced punishment, as their appeared intention was Good. The fourth axiom was born: ‘Actions are considered by intention’. These axioms continued to be etched into the plank of wood. This became useful to some, acting as a small and quick reminder where required. A market had grown where the fish were often caught. One day a disagreement broke out over an order of fish. One boy had paid another for some. However, as it transpired, the seller had caught no fish, but had made the sale based on what he expected to catch that morning. As an axiom was to treat others fairly, this was deemed an unfair transaction, as the buyer could not collect on his purchase. Therefore, such practice was stopped, and the seller returned the buyers money. As the number of those on the island grew, new circumstances came about. These entailed new considerations of past judgements made in light of the axioms. One such example was buying a boat to go fishing. Based on the judgement that it was unfair to sell something that was absent, the default expectation would be that a boat ought to be built first before it could be sold. However, given the great costs and time involved in constructing a new boat for fishing, a boy would find it difficult and highly risky to build if no buyer was potentially interested. This appeared to put the seller, the one with the skill to build, in a seemingly unfair position. As such, the judgement was re-evaluated. Sellers could sell an unbuilt boat but with the proviso that they provide the customer a full specification of what was expected of the boat to include, a time of delivery and guarantee. Thus the axiom: ‘Hardship brings ease’ was born, allowing for dispensations to be made where and when needed so long as the axioms were seen through. In such a case, the ‘law’ had been adjusted to meet the objective of the axiom. Hence the legal philosophy of the Island of Boys was articulated: The objectives of the axioms are of greater importance than the axioms. As the boys grew older, it was said that the boy, now a man, heard a voice from the heavens, a voice from the absolute. A set of axioms was revealed. They were: There should be no harming others nor the reciprocation of harm. Harm should be lifted. Actions are by intention. Certainty is not lifted with doubt. Hardship brings ease. Custom has authority. These laws are best lived according to the tradition ‘Love for your brethren what you love for your self ’. The boy was surprised to be the recipient of such a message, yet it came as no surprise to him that the axioms and the tradition were consistent with what had been practised. Here ends the story. 46

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Does the boy have religion? It may appear that the five axioms arrived at by the boy are in line with the five major axioms of Islamic jurisprudence (al-qawa¯ ʿid al-fiqhiyya al-kubra¯ ):1 the tradition ‘to wish for one’s brethren what one wishes for oneself ’, appearing in the sayings of Muhammad;2 the uniqueness, unity and absoluteness of God, being the attestation of the Muslim belief; the legal philosophy that ‘the objectives behind the law are of greater consequence than the laws themselves’, being a formulation of the spirit of Islamic law. All of these have led some to ask: Was the original nature of religion and law, as explained by the Prophet Muhammad, one of a ‘reminder’ of what humans were innately aware of, especially given that the term ‘reminder’ is often used in the Qurʾan to describe itself and the message (6:90)? In legal terms, the revelation of the Qurʾan is remembered by the community as a piecemeal affair: verses appeared in the context of situations.3 Qurʾanic laws did not constitute a system, but pointed to the elaboration of a basic legal structure.4 The Qurʾan often spoke of law as basically being constituted of the imperative of justice. With the lack of a set canon, the imperatives of ʿadl ( justice) and qis․․t (equity) were mentioned without being defined. The audience of the Qurʾan was assumed to be naturally familiar with these terms without the need of having defining texts. Indeed, the legal philosopher Ibn Rushd (d.595/1198) makes an observation that scholars of Islam are in wide agreement that the main tenants of belief, such as belief in God, can rest on rational deduction. Thus, he posits, why should it be the case that for other categories, such as law, one must shy away from reason? Indeed, Ibn Tufayl (d.581/1185) attempted to demonstrate with the story of Hay ibn Yaqzan that the human mind could, without any theological or intellectual instruction, attain truth.5

Why was the boy marooned on the island? In our story, the boy held that his nature was poised to gain maximally from the nature of the absolute being. The boy’s nature innately favoured Good over Bad. This was true even with the Machiavellian among the boys who were repulsed by the idea of themselves being treated unfairly. The ‘rights’ he felt he owed God and his society appeared both fair and in line with the axiom he had come to. Thus it appeared to him that his existence was one that came out of the grace of God. What of the Islamic source material on this question of ‘why God created the world’? The chapter now turns to the opinions voiced by interpreters of the Qurʾan on this topic. Reading through the Qurʾan sixty-two interspersed verses comment on the area.6 The key terms used in the Qurʾan are: to make apparent through circumstance (yabtalı¯), to determine or purify (tamh․¯ı․s), to reward (li-yajzı¯), to know (li-yaʿlam), God’s blessing (niʿmat Allah), and God’s method (sunnat Allah). I will summarize my view of these here before producing the views of the literature held on this topic. The crux of the verses appear to revolve around God creating humankind to have the opportunity to live a life that is both in line with what they already know to be good and right. They will experience circumstances that allow them to choose between good and bad (67:2; 3:186; 6:165; 21:35), and in doing so they will come to know, for themselves, whether they are true to what they hold to be innately good and rightful (33:24; 39:9; 3:140, 142, 166; 9:16; 29:2; 47:31; 3:141). Each circumstance will be within each person’s capacity (2:286), and each of these circumstances is integral to life going on (2:251; 22:40). Through these decisions, individuals will attain characteristics that match their choices (91:9). The highest virtue in life is given 47

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as that of witnessing, knowing and worshipping God (51:56; 2:21; 5:97) in a world created in truth (6:32; 44:38; 46:3) with rights – such as the virtue of justice and abhorrence of murder (7:29, 33; 6:151–152; 55:9). In His mercy, God sent prophets to humankind so as to remind them of such (6:90; 25:56) and everyone will be rewarded fairly for their choices (53:31; 35:30; 39:35). God will never be unfair to anyone (3:108; 28:59; 41:46). The message of the Qurʾan was also sent as a reminder that God wishes not for people to experience difficulty with the laws He has sent (5:6), but mercy (22:107) and grace (2:150).7 The chapter will now consider the main schools of thought found in the interpretation (tafa¯ sı¯r) literature of these verses. The chapter’s methodology in considering and presenting the interpretations has been to use all the interpretations (tafa¯ sı¯r) referred to in this footnote for each of the verses,8 but only to quote from those interpretations (tafa¯ sı¯r) that present a unique ‘added value’ to their peers, one that adds to the discussion – especially given that much of the tafsı¯r literature is at times repetitive.

Why create an island? When the early Muslims had completed their Hajj, Q. 5:3 was revealed, indicating that God completed His blessing and grace. This has been interpreted as the completion of the tenants of Islam, both their ordinary commands (ʿaza¯ʾim) and dispensations (rukhas․)9  – its laws.10 As such, the legal rulings (ah․ka¯ m) were seen as effectively one that brought a purification (tazkiya) and ease (yusr) – in line with the narration that the ‘Religion (Dı¯n) of Allah is ease (yusr)’11 and the narration ‘I was sent with the ․hanafiyya al-samh․a’, 12 one that is in accordance with Q. 21:107 indicating that the essence of the message and its laws was one of mercy to all humans – given that the phrase ‘to the worlds’ (li-lʿa¯ lamı¯n) refers in the verse to the word mercy (rah ․ma).13 The Qurʾan often uses the term yabtalı¯ and yabtalı¯yakum to refer to a reason for creating humankind. The two terms have often been presented within tafsı¯r literature as ‘He tests’ and ‘So that He may test you’. As the main schools of Islamic theology held that God has the foreknowledge of what will occur, many interpreters understood these two terms to mean that God creates a circumstance whereby it appears as if He is testing a group of people.14 Some interpreters have further said that in doing so it allows for God to establish proof for or against the person (qiya¯ m al-h․ujja) and that such allows for actions, which in becoming realized, qualify for reward or punishment. In the view of some interpreters, being in a situation that appeared testing to the individual allowed the term to be used due to the apparent similarity (musha¯ baha). Articulated in his tafsı¯r, al-Razi (d. 606/1209) comments that ‘the nature of testing is an impossibility in respect to God. What we actually are left with is [the act of ] taklı¯f ­(assigning duty)’15 – assigning duty (taklı¯f ) being the act of giving responsibility to someone to act in a particular rightful way. The phrase ‘to test’ can be seen to have been taken with this understanding, 16 whereby the test would determine if one ‘passes’ or does not ‘pass’.17 It is of note that the phrase ‘to test’ appears throughout the tafsı¯r literature despite its absence from the actual text of the Qurʾan.18 The second way of interpreting these two phrases, yabtalı¯ and yabtaliyakum, was given as: ‘[He] makes apparent’ and ‘[He] makes apparent to you’, in which difficult circumstances that one goes through are to allow a person to witness for themselves their own nature so that they may gain from such otherwise hidden knowledge. This interpretation rooted itself in the early usage of the terms, whereby these terms are ‘borrowed (mustaʿa¯ ra) to make apparent something that is hidden’, 19 and in commenting on Q. 6:165, to indicate that it refers to ‘the manifestation 48

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of the measure of the intellect in their making use of God’s gifts. Since God already knows the spiritual levels of people, the phrase balwa¯ was used, as it (a person’s inner level) does not appear to individuals except after it is acted out’. Indeed, the term al-bala¯ʾ has been defined as coming to the essence and purity of gold by melting it down to remove impurities, and the term ʾibtila¯ʾ, also has been defined as istikhra¯ j ma¯ ʿind al mubtalı¯ (making apparent what is within the person undergoing the circumstance). Such knowledge of oneself has been tied, especially in the more spiritually inclined tafa¯ sı¯r such as Ibn ʿAjiba’s (d. 1224/1809) and al-­Baydawi’s (d. 685/1286), as a blessing (niʿma), as it allows a person to gauge themselves. Qushairi (d. 465/1073) comments ‘what outwardly appears as a difficulty is in actuality a blessing (niʿma and minna) to the discerning’. He also quotes the tradition that ‘If God loves His people, He puts them through ʾibtila¯ʾ’.20 Indeed, the term itself formulated as bala¯ʾ indicates a blessing (niʿma) since it is said abla¯ hu Allah ibla¯ʾan wa-bala¯ʾan’ (when God blesses a person with something).21 Both interpretations do, however, come to the same conclusion that the outcome is for the benefit of the person and not for God’s own benefit, as God is believed to be omnipotent, without need, and prescient. It may also be of note that nowhere in the Qurʾan is ibtila¯ʾ used to refer to legal rulings (ah․ka¯ m). The term ibtila¯ʾ does not seem to appear in the recorded Sunnah in reference to law or law making. Rather, the term is often used to refer to testing situations that happen to humans, such as being afflicted with illness or hardship, or even in receiving good (21:35).22 This appears to point to an ontology of Islamic law, as one that does not intend to ‘test’ its subjects, but facilitates ease and grace for them. Although the boy came to this conclusion on ‘his being in the cosmos’, a number of ways of expressing this have been documented in books on Islamic theology. To these the chapter next turns.

The island in Muslim theological literature While the boy in the story viewed his own nature as being the opposite to the Absolute’s, along with his ability to recognize an element of Good and Bad as an indication of a ‘blessing’, the chapter now turns to four schools of thought that emerged in early Muslim history on the question of why God created humanity. The four schools of thought that this chapter shall consider are the Ashʿari, Maturidi, Athari and Muʿtazili. Each attempted its own reasoning (ijtiha¯ d) on the topic. All of these schools held that God created humankind through His Will, and that God is not in need of creation. They had different views on the question of what ‘motivated’ God to create, or put differently, the ultimate reason for God creating (al-ʿilla al-gha¯ʾiyya). The Ashʿaris believed that it was purely God’s Will, with no reason of any kind behind it, although they held that there was a concordance between God’s Will, grace and wisdom, as will be detailed further on in the chapter. They held that it was not theologically sound to attribute a reason to any of God’s acts. The Maturidi and Athari schools believed it was God’s Will and that He created the world out of wisdom and grace (tafad ․․dul).23 The Muʿtazila, however, while believing it to be God’s Will and an expression of His Wisdom like the Maturidis and Atharis, believed that such wisdom was not out of choice but rather that God was compelled to act in this manner.24 Each school expressed its reasons for taking these views, and in taking these views, they then had a premise from which to build a theory of the reason for law and law making. While a detailed account of these reasons can be found in the literature, this chapter, by virtue of its area, will focus on the legal element. 49

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It is of note that the answer to the question on ‘the reason for God acting’ then went on to inform how each school considered the notion of ibtila¯ʾ (to test/to make apparent). Given the view of the Maturidis and Atharis, namely that God created due to wisdom and grace, they then took the stance that humans were sent messages and rulings from God for their own benefit. The Maturidis held that ibtila¯ʾ was in reality used as a metaphor for when something is made apparent and observable. Furthermore, they held that God did not command creation in order to bring benefit to Himself, nor to repel harm from Himself; rather, He commanded them for mana¯ fiʿ (benefits) for humankind, and so that the consequences become apparent to the person, not apparent to God.25 Whereas with the Ashʿari view, that God did not create based on a reason – messages and rulings from God could not be said to be due to God wanting benefit for humankind. Rather, humankind was in a position of taklı¯ f (responsibility) for which they would be rewarded or punished.26 However, Ashʿari scholars did accept a concordance between benefit, wisdom and God’s rulings, as will be discussed further on. Muʿtazilis further viewed taklı¯ f as required in order for the believer to gain reward or punishment for carrying out acts (imtih․a¯ n).27 The chapter next considers the ontological authority of reason, being central to a discussion on natural law and Islam.28

The good and the bad in living on the island When the boy, using his axiom, began to discern between acts that he would wish on others and acts he would not, and termed the former ‘Good’ and the latter ‘Bad’, he began to define an ontology that has its parallels in Islamic theology. The Muʿtazili, Maturidi and Athari schools all accepted that one could, to a degree, discern between good and bad without scripture. The degree to which one could discern was a point of discussion between them. The technical terms used to describe qualifications were ․husn (pleasantness) and qubh․ (unpleasantness). For the Muʿtazilis, Maturidis and Atharis, acts are either ․hasan (pleasant) or qabı¯․h (unpleasant) either in and of themselves, or due to an inseparable characteristic, or due to other considerations. For the Muʿtazilis, textual revelation is solely to make clear those characteristics of ․hasan (pleasant) and qabı¯․h (unpleasant). This view was also taken up by the Karamiyya and a number of Shiʿa and Yazidiyya. It is often attributed to Jahm b. Safwan (d. 128/746), who opined that elements of knowledge (maʿa¯ rif ) can be known with the ʿaql (intellect) before revealed texts appear (the Sharʿ), that the intellect is able to discern ‘good’ from ‘bad’, and ․husn (pleasantness) from qubh․ (unpleasantness) without revelation. The Ashʿaris, on the other hand, took the position that nothing is inherently good or bad. God only makes things fall into either category based on His Will and not because anything necessitates such allocation.29 They believed that the ʿaql (intellect) does not indicate the ․husn nor qubh ․ of anything. Thus, for example, to the Ashʿaris, being unfair is not inherently definable as bad or good but only has the label of being ‘bad’ after God revealed that qualification to His Prophet. Legally, they held that there was nothing that obliged humans to anything without revelation. The Atharis and Maturidis took the position that human reason had an ability to discern ․husn (pleasantness) and qubh․ (unpleasantness), however, they also held that people cannot be judged according to this distinction until revelation had its say on the matter. This distinction has a bearing on law. Acts that are considered ․hasan (pleasant) or qabı¯․h (unpleasant) have the capacity of causing benefit (mas․lah ․a) or harm (mafsada) respectively, upon which legal determinations can be made. If one were to include in this legal determination 50

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the view of the Atharis and Maturidis, that the reason for creation was ultimately for wisdom and humankind’s own benefit, one arrives at a perception of what law and law making is – one that is distinct from the view that no such reason and no determination of benefit (mas․lah․a) or harm (mafsada) are possible by humankind. In the next section, the chapter considers the question of what indeed is required for law, and how natural law concepts began to manifest in the Islamic legal tradition.

What makes for law on the island? To the boy in the story, the axioms he arrived at appeared to go hand in hand with what was revealed to him. This affirmation, of the non-conflict of reason and revelation, is a consistent theme within legal and theological discourses in the Muslim tradition. Principles seen in the Qurʾan (17:15; 53:39; 5:1; 2:188; 4:28, 58; 17:34; 2:283, 173) all posit what appear as universal principles of justice without legally defining them. As the Prophet migrated to Medinah, verses and hadith specific in their rulings appeared in the context of situations, sometimes in response to Muhammad seeking guidance. Yet these rulings often maintained, within the same texts, that their intention and objective were to maintain the reasonableness, justice, and prosperity that stem from these universal principles. As an example of a form of contextual ruling, the Prophet had asked the people of Medina not to keep meat for more than three days after the Eid, but to donate what remained. The Companions in later years asked the Prophet if such a ruling still stood, to which the Prophet replied that the initial command was due to the presence of people in need at the time in Medina, and that their absence meant that the Companions could now store meat for themselves after the Eid and beyond three days.30 With the change of context and public interest came the change of the ruling, yet the universal principle of mas․lah․a (benefit/well-being) remained. Companions of the Prophet such as ʿUmar, ʿUthman and ʿAli appeared to have employed this methodology. They would at times avoid applying a textual ruling found in the Qurʾan or Sunnah because the context had changed. Applying the literal meaning of the text would, to them, have resulted in a loss in the objectives of the text. Numerous cases have been cited from the time of the Companions that appear to indicate such an approach was accepted and practised early on: Abu Bakr’s inclusion of the category of ‘grandfather’ instead of that of the ‘siblings’ in inheritance; the reclassification of some inheritance shares by ʿUmar; the selling of lost camels by ʿUthman b. ʿAffan (whereby proceeds would go to the treasury); ʿUthman allowing the Companion Tamdur al-Asadiyya to inherit from her ex-husband – who had divorced her on his death bed; the guarantee that ʿAli b. Abi Talib ordered craftsmen to abide by. These are all cited examples of practice that went against source texts.31 To them, the change they enacted allowed the law to remain true to principles of equity and justice, all such indicating that a qualification of these principles was possible. Shihab al-Din al-Qarafi (d. 684/1285), a 13th-century jurist, took to differentiating between what the Prophet said depending on context (maqa¯ ma¯ t al-khit․a¯ b al-nabawı¯ ) – differentiating ­between what the Prophet said as a human being, what he said as a leader, what he said as a judge, and what he said as a Prophet – all such differentiations having legal implications.32 Indeed, a nature of Prophethood appears to indicate that legislation to what is just and equitable is something that is to a degree innate. A hadith in this regard that may provide an indication of a framing of law and how law is expected to be is reported in the Muwattaʾ of Malik, which stating that the Prophet said that he ‘was only sent to complete good character’, indicating that ‘good character’, in principle, was already present pre-revelation. This may also be considered with the statement of the Qurʾan describing itself as a ‘reminder for the 51

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worlds’. Such positioning of Prophethood may begin to form an indication that the prophetic mission was more corrective and descriptive than prescriptive. It may be that given the fluid nature in which societies and contexts change and evolve, the Prophet avoided recording all the Hadith sayings. This was different to the collection of the Qurʾan, where verses were written down by companions on parchments at the time of the Prophet, as well as being committed to memory and passed on in full form. Much of the Hadith remained committed to memory. The view that early law relied on reasoning that was anchored in a few principles that were ‘natural’ and universal, such as the prohibition of oppression and injustice, appears early in the historical record of law making. Arriving at rulings (ah․ka¯ m) based on scripture in the first and second centuries of Islam was not primarily a matter of textual interpretation, but rather, of interrogating good judgement, local precedents, the practices of prior Muslims, and a limited body of revealed injunctions in order to address specific legal problems. 33 According to Khaled Abou El Fadl, justice and equity, as ultimate goals, tend to endow the agent with a considerable amount of discretion.34 The acceptance of disagreement on ah ․ka¯ m (rulings) has been attributed to the Prophet, which may imply that revelation also lent itself to individual reasoning and discretion. The use of pure logical reasoning developed thereafter to form a school of thought known as that of reasoned opinion (ahl al-raʾi). The school also considered its method to be in line with what was practised by the scholar Companions of the Prophet ʿAbdullah b. Maʿsud and ʿUmar b. al-Khattab, among others. This form of reasoning also manifested itself in a specific method for arriving at law, a method that became known as istih․sa¯ n ( juristic preference). It was driven by reasonableness, fairness, common sense35 and mas․lah ․a (benefit), set as deriving the most good and mitigating the most harm, both of which involved reasoning that did not appear to be directly based on revealed texts.36 The school then evolved into the Hanafi school for the most part, although it also found itself – albeit in smaller portion – within the Maliki and Hanbali schools. It offered a methodology of understanding the texts. Especially as the ahl al-raʾi were accepting of the Hadith. In considering the Hanafi school specifically, one comes across istih․sa¯ n as a method for reaching legal rulings. The mechanism appeared early in the Hanafi school. Indeed istih ․sa¯ n appears to have originally represented independent human judgement of expediency or public utility; and has come to be regarded by some as vestiges of the raʾi which survived in classical theory. Wael Hallaq sees it as being employed as a method of equity, driven by reasonableness, fairness and commonsense.37 Ibn Rushd defined istih․sa¯ n as being, in most cases, an attention to human interest and justice, one in favour of considerations of equity and justice, or in favour of a doctrine which might have been formally less systematic, but more practicable and appealing to commonsense.38 Thus one arrives at what appears as a theory of law, fluid and flexible, based on a number of universal principles. However, a second school, the School of the Texts (ahl al-athar), began to develop another method, one based more on the Qurʾan and Sunnah in their fullest ­capacity – one that also included the full record of memorized and written records of the Sunnah.

The ahl al-athar and an effect on the character of law The ahl al-athar or as․ha¯ b al-hadith, as they also were known, were proponents of entirely scriptural authority in theology and law. Their focus was often on the literal meaning of the texts, whereas the school of raʾi often focused on reasoning in order to arrive at a ruling that was in 52

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line with the spirit of the principles of revelation. For example, the charity given just before Eid, zakat al-fit․r, is described in the source texts as being of a number of categories, such as dates and wheat. The ahl al-athar limited what could be given in charity on this occasion to these categories, whereas the ahl al-raʾi school allowed for other categories including money to be given in charity instead, seeing the reason behind such a ruling as one of provision to those who are in need. A second illustrative example of how the two schools approached a text can be seen in a discourse on the juridical considerations of the hadith: ‘A judge must refrain from judging when in a state of anger (ghad ․ba¯ n).’ The rationally inclined school notes that the reasoning is clear from the text, namely distraction, thus they allow judges to perform their duties in a state of anger so long as that anger is little enough so as not to be a distraction. Hence, they manoeuvre the texts based on the principal reasoning as they see it.39 If one contrasts this with the textually based school, whereby the mind (ʿaql) is supposedly solely to manoeuvre within the texts, they argue that the conclusion ‘little anger does not qualify’ actually comes from the text itself, having used the form faʿla¯ n, which implies ‘filled with anger’. The reasoning for this epistemology was that if the premise is set in reverse, whereby the intellect is given precedence over the text, then the Shariʿah, in their view, would be utterly dismissible based on the decisions of a jurist’s reasoning. Thus they formulated the position that ‘the text must lead the intellect’ (al-nas․․s yasbiq al-ʿaql).40 It has been suggested that, given the debate in the third/ninth century with ʿIsa b. Aban (d. 221/836) and Abu al-Hasan al-Karkhi (d. 340/952) and his student Abu Bakr al-Jassas (d. 370/981), a method to stem and constrain reasoning in mas․lah ․a (benefit) to tie it to the text was needed by the ahl al-athar camp. This materialized in part with the rebuttals by al-Shafiʿi (d. 204/820) that laid a foundation to constrain what fell outside of qiya¯ s (textual analogy) and ijma¯ ʿ (consensus) – two methods used by the ahl al-athar to arrive at rulings (ah ․ka¯ m). This foundation went on to give rise to maqa¯․sid (textually based objectives of law).41 The ahl alathar and its followers began to formalize all aspects of law, setting up us․u¯l al-fiqh (principles of jurisprudence for arriving at legal rules) that essentially tied all legal thought and legal derivation to the source texts. Where no texts existed on a matter, and no analogy or use of consensus could be made, the theory of maqa¯․sid delineated an approach by this school of thought in order to arrive at legal rulings. In Abu Hamid al-Ghazali’s (d. 505/111) deliberation on benefit (mas․lah․a), he restricts it to ‘the upkeep of the intention (maqs․u¯d) of the law-maker’.42 Further, in his deliberation on unrestricted benefit (al-mursala), he comments, thus any mas․lah․a that does not ultimately protect an intention of the Qurʾan, Sunnah and ijma¯ ʿ, and is of the odd mas․a¯ lih․ that are not consistent with the ways of the law, [then in such a case, the mas․lah․a] is considered false and disqualified. Whereas any mas․lah․a that ultimately protects a sharʿı¯ (textually based) intention, then [it becomes the case that] this then affords us the knowledge that it is [indeed] an intention of the Book, Sunnah, and ijma¯ ‘ – and is [thus] not outside these us․u¯l (principles). However, it is not termed ‘an analogy’ rather a ‘mas․lah․a mursala’. Indeed if we interpret mas․lah․a to mean the protection of the objective of the law-maker, then there is no reason for a disagreement in following it, rather one must accept definitively that it is indeed a proof.43 Of note, however, is his careful choice of words in distinguishing benefit (mas․lah․a) as the protection of the objectives of the sharʿ (textual sources) and not the acquisition of benefit and mitigation of harm based on reasoning. 53

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In the development of maqa¯․sid (textually based objectives of law) was an attempt to prioritize, and rank, rulings (ah․ka¯ m) from the vantage of the Shariʿah itself. Rulings were categorized in a three-tier system where the maqs․ad al-d ․aru¯rı¯, or al-muna¯ sib al-d ․arurı¯ (necessity) takes precedent over the maqs․ad ha¯ jjı¯ (need) followed by the tah․sı¯nı¯ (luxuries).44 The theory on maqa¯․sid was further developed by al-Shatibi (d. 790/1388). He elaborated a mechanic within us․u¯l (principles of jurisprudence) using the maqa¯․sid frame of reference. On the concept of the three-tier categorization mentioned earlier, al-Shatibi opined that these were kulliyya¯ t (overall principles), and thus any juzʾiyya¯ t (subsidiaries) should be considered in light of these. In particular, as the kulliyya¯ t are among the necessities, thus it cannot be the case that a juzʾı¯ (subsidiary) goes against these. Should this appear to occur, then al-Shatibi holds that there must be a way to reconcile between the two because a juzʾı¯ (subsidiary) does not appear except with an inherent protection of these qawa¯ ʿid (axioms).45 The theory of maqa¯․sid formally set that the objectives of Islamic law were to protect one or more of the following: the intellect, religion, honour, wealth and lineage. Yet maqa¯․sid in this textualist formulation may be said to have come from a negative reading of the texts, in that, to some jurists, such as al-Ghazali, sanctions given in the source texts against acts such as murder and libel meant that the law’s objective was to protect life and honour. This textual formulation, it has been argued, was, in part, a method employed to restrict the open reasoning on the spirit of the law used by the ahl al-raʿı¯, which did not restrict in its practical deliberations the spirit of the law to a set. As the chapter next shall consider, the ahl al-athar were to have a profound and marked effect on the portrayal of the school of the ahl al-raʾi.

Influence of the ahl al-athar on the late raʾi school As it came to pass, the more pronounced the authority of the ahl al-athar became, the less freedom jurists had in expounding discretionary opinion. It was framed by the ahl al-athar as being antithetical to the notion of Prophetic authority, and raʾi inevitably acquired negative connotations. The textually based approach started to leave less room for human discretion, since its very existence appeared to demand that a choice be made between human and Prophetic authority. Despite the appeal to rationale, raʾi during the first century after the Prophet’s death was increasingly challenged by traditionalism, represented in the proliferation and gradual acceptance of a notion of Prophetic Sunnah expressed in the narrative of the hadith. Between the end of the second/eighth century and roughly the middle of the third/ ninth century, this traditionalism was to gain the upper hand, to be tempered in turn by the acceptance of a restrained form of rationalism.46 It may be argued that the spread of the athar school was so influential that later Hanafi texts began to claim that the Hanafis of the early period actually ascribed to the now commonly held position of orthodoxy, namely of placing the sources before one’s own reasoning on rulings. Some also claimed that the methodology of Abu Hanifa (d. 150/767) was misunderstood and largely based on a number of misunderstood definitions.47 Many still take the view that the difference between the two schools was at heart very minor and that the Hanafi school only took the approach it did due to the lack of source material, the prevalence of fabricators in its geographical proximity, and the new societies they met. The ahl al-athar, in their derivation of rulings from the revealed sources of the Qurʾan and Sunnah, relied heavily on analogy. Thus they allowed rulings for certain cases to be extended to new similar cases that had no precedent in the Qurʾan and Sunnah.48 This being the case, 54

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istih․sa¯ n ( juristic preference) was re-characterized as being the method by which a source text from which an analogy can be drawn exists, yet is dismissed for another analogy based on another source text. Thus the process was presented as a form of qiya¯ s (analogy), 49 one in line with the ahl al-athar school of thought. Along these lines, al-Jassas (d. 370/980) mentions that istih․sa¯ n materializes in two situations, the first being a case that is drawn to two different principles (yataja¯ dhabuhu as․la¯ n), with one of the principles being more worthy of the case than the other. As such, it is preferred (yustah ․san) to draw the analogy from the less worthy principle rather than the more worthy principle. Thus he defines it as leaving qiya¯ s (analogy) for a qiya¯ s that is more fitting.50 The second situation is where a ruling is not implemented because the case is to be considered one that is specific to that context and thus draws uniqueness (takhs․¯ı․s), even if the ʿilla (cause) for the ruling still persists. Al-Amidi (d. 631/1233) also joins the ranks of those late jurists who consider istih ․sa¯ n as little more than a form of qiya¯ s.51 Indeed, the proliferation of this definition has led John Makdisi to the view that both early and late jurists understood it the same way, namely as a determination of a solution based on either a direct provision in the Qurʾan, Sunnah or consensus, or reasoning by analogy from one of these two sources. However, this preference, according to Makdisi, is determined by the Qurʾan and Sunnah and not by appeal to conscience for which he gives examples using Bazdawi (d. 482/1086) and Sarakhsi (d. 483/1087).52 Thus, the ahl al-raʾi, in their most characteristic method for arriving at laws, are presented by later jurists as enacting the same principles as the ahl al-athar.

Was the later characterization of the ahl al-raʾi accurate? The chapter turns to the question of why there was such vehement opposition to ahl al-raʾi and its formulations (such as istih․sa¯ n), if indeed it was a school that used a similar methodology to the ahl al-athar. When considering the early polemics on this topic, it can be seen that there is a great amount of opposition to the method of istih․sa¯ n, to the general method employed by Abu Hanifa, and the school’s modus operandi. Indeed, the school of raʾi had become the target of vociferous attacks by scholars ascribed to the ahl al-athar. The scholars of raʾi were often met with skepticism by the majority of jurists as represented by the ahl al-athar.53 This was, in part, due to the method being devoid of direct textual reference from the viewpoint of the athari school.54 The main reason given in the historical record for the opposition of the ahl al-raʾi by the ahl al-athar is that they were accused of placing ‘opinion’ before source texts. In considering the level of the attacks made on the early Hanafi school, one finds, for example, al-Qadi ʿIyad (d. 544/1149) in his Tartib al-Madarik stating that ‘Abu Hanifa would put analogy and opinion (iʿtiba¯ r) before the sunan and athar, and [in doing so] has forfeited the principle texts, and taken to reason (ʿuqu¯l), choosing raʾi, analogy and istih ․sa¯ n ( juristic preference). Thereafter, he placed istih․sa¯ n before analogy and [in doing so] has gone far [from what is proper].’55 To substantiate the claim that Abu Hanifa forgoes the Sunnah, a whole chapter (kita¯ b) listing these occurrences is made by Ibn Abi Shayba (d. 233/849). In addition, Abu Hanifa was also attributed with believing in the tah․sı¯n of the ʿaql (declaring something pleasant by virtue of the intellect alone).56 The more literalist jurists, Ibn Dawud (d. 297/910) and the Zahiris, also rejected istih․sa¯ n.57 They thought it rendered licit what God declared forbidden. Istih․sa¯ n was also generally rejected by the Shafiʿis. Al-Shafiʿi wrote a book Ibtal al-istihsan (Annulling Juristic 55

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Preference) and is the author of the quote ‘man isth․sana fa-qad sharraʿ (he who adopts istih․sa¯ n has legislated)’, equating it with heretical usurpation of God’s role as the sole determiner of the law.58 This opposition by al-Shafiʿi poses a question. Had istih․sa¯ n been a simple matter of qiya¯ s (analogy), why was there a heavy backlash against it? Indeed, some of the ahl al-athar even claimed that later jurists deliberately reformed the original definition of istih ․sa¯ n to something more in line with the atharı¯ school of thought. Abu Is-haq al-Shirazi (d. 476/1083) launches his polemic by stating that istih․sa¯ n is falsehood because it is leaving qiya¯ s for that which a human prefers based on their own opinion without evidence. He then claims that later members of the school of Abu Hanifa differed among themselves, each defining it differently. However, he concludes by mentioning al-Shafiʿi and Bishr al-Marisi (d. 219/833) as having judged it as departing from qiya¯ s by way of human preference without any evidence. Al-Shirazi then makes the claim that such was their actual school of thought.59 Makdisi, as mentioned previously, stated that al-Amidi supported a view that istih ․sa¯ n was never more than a form of qiya¯ s.60 Yet in returning to the source text for this translation, alAmidi lists istih․sa¯ n as retracting a ruling due to the presence of a source text, consensus, or other means. Al-Amidi does not mention what the term ‘other’ refers to. Had istih․sa¯ n been as straightforward as qiya¯ s, as has been claimed, the question may be asked, why did the early raʾi school avoid a straightforward definition? Indeed, recorded definitions of istih․sa¯ n given previously (p. 52 onwards) seem to indicate a departure from the qiya¯ s it has been attributed to. Also of note are the opinions expressed by al-Hattab (d. 954/1547) of the Maliki school who indeed mentions that the best definition that has been given of istihsan is that it is ‘an evidence that comes to the mind of the mujtahid and finds itself well received but difficult to express’. He quotes Ibn al-Hajib (d. 646/1249) as saying that this definition is what is maʿmul (officially sanctioned) itifaqan (by agreement). Even the claim that few sources existed at the time and location of the early school has been countered by the fact that Iraq was one of the regions most populated with Companions of the Prophet. Most of the Companions had lived in or visited Kufa and Basra. Kufa had no fewer than seven of the leading scholar Companions.61 Furthermore, it is recorded that within the geography of the ahl al-athar, such as Medina, there emerged some of the leading scholars who used raʾi such as Rabiʿa (d. 136/754) and Malik (d. 179/795). Yet with raʾi being seen as an expression of rationalist and utilitarian tendencies, it was wholly expunged by those opposed to this form of reasoning, and hence, al-Shafiʿi’s overwhelming opposition to istih․sa¯ n.62

Taqbı¯h. and tah.sı¯n in law – its relation to natural law It may be suggested that irrespective of whether istih ․sa¯ n ( juristic preference) is simply a qiya¯ s (analogy) or otherwise, it still does not appear to answer the question, how does a jurist decide that one qiya¯ s is more appropriate than another without actually reasoning on the outcome? What is it that makes a jurist sway away from one qiya¯ s to another? If it were the text that made the jurist sway, then arguably the jurist would not have enacted the first qiya¯ s. Furthermore, istih․sa¯ n in its later formulation is said to be enacted after the outcome of the first qiya¯ s seems out of place, wrong, or incongruent to the jurist. How would this be possible without a degree of qualification of the outcome, a degree of tah ․sı¯n and taqbı¯․h (considering an element pleasant or unpleasant), in the mind of the jurist? It appears, whether directly or indirectly, that a jurist here is enacting a tah ․sı¯n and taqbı¯․h on the outcome of the ․hukm (ruling) before deciding to seek an alternative qiya¯ s. It also assumes 56

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the jurist is able to qualitatively and quantitatively characterize what is expected of revelation on minor rulings. The best answer to give to this question may be to say that jurist is seeking the objectives of Islamic law (maqa¯․sid). The problem with this answer is that according to the promoters of the ahl al-athar, including al-Ghazali, the maqa¯․sid are not to be used to negate or dismiss a text; the maqa¯․sid are only to be used when no source text exists at all. If one were not to allow a text to be used because of the jurist’s view of maqa¯․sid, then he/she would be enacting a methodological error by qualifying the outcome of a text in light of the maqa¯․sid, and thereby dismissing the text or enacting it. It is no surprise that al-Shafiʿi saw in istih․sa¯ n a form of legislating without the source texts – a form of natural law. Furthermore, maqa¯․sid, in the ahl al-athar school, are not to be used to establish the mana¯․t (applicability) of a text. The school rather takes the position that it is the role of the text to establish the maqa¯․sid and not the reverse. Thus, in allowing a jurist to consider the outcome, they are inherently suggesting that, like the ahl al-raʾi did, there is a spirit of law that supersedes and overrides the source texts. It may be of note that this observation applies to the later definition of istih ․sa¯ n, one that reframes it only as a form of analogy (qiya¯ s). The earlier definition of istih․sa¯ n was even more audacious whereby a text is not enacted due to a subjective assessment of the jurist that seeks an outcome that is more reasonable than is suggested by a literal framing of a text. Perhaps this is why the early ahl al-athar exhibited such opposition to the concept at hand. Such an opposition also appears to be in line with the accusations made of Abu Hanifa as having leanings towards tah ․sı¯n (declaring something pleasant).63 Indeed, a narration attributed to him, ‘Ignorance is not an excuse for not believing in God due to what the person sees in the creation of the heavens and earth, and in the creation of themselves’, appears to be in line with part of the Muʿtazali view that did not require the presence of a prophet for responsibility. Although, late Hanafis tried in a number of ways to re-interpret this away from that consequence. The effects of this alleged form of tah ․sı¯n (declaring something pleasant) may also be said to be present in his taʿlı¯l (reasoning) in a number of acts of worship – acts normally considered by even the Malikis who practised maqa¯․sid extensively – to be out of the scope of taʿlı¯l by virtue of them (the acts of worship) being taʿabbudı¯ (simple commands to be carried out without rationalization). Abu Hanifa also undertook taʿlı¯l in the masa¯ʾil (issues) of zakat and expiations, setting them in terms of ‘value’ instead of ‘specific types mentioned in the texts’.64 It appears that the early form of istih․sa¯ n lent itself to a form of natural law, whereby the jurist sought that which brings about equity and justice despite what some of the source texts said on the matter. This form of law making appeared anchored in principles of justice, compassion and equity, principles that the Qurʾan also appears to see as innate to humankind. However, as Bernard Weiss posits, from an historical vantage point, istih․sa¯ n was eventually assimilated into the textual sources and was thereby deprived of its independent status. In fact, reason, custom, equity or public interest became concepts fettered and limited by the juristic method.65 Accordingly, istih․sa¯ n was eventually considered to belong to the category of tarjı¯․h (the acceptance of one of two conflicting rules as ‘weightier’ than the other).66 The Muʿtazili school had its own effects on fiqh and us․u¯l – given their acceptance of an objective and discernible ‘good’ and ‘bad’ within nature. This was seen to permeate their discussions of law, for example, in the definitions of the five categories of responsibility (obligatory, recommended, indifferent, disapproved and forbidden), the definition of obligatory (wa¯ jib) included the term ʿaqlan (by virtue of the intellect), 67 where the Ashʿaris only used the term sharʿan (by virtue of the texts).68 The distinctions found their way into practical considerations, for example, the difference of opinion between these schools on ‘God commanding 57

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that which cannot be humanly carried out’ (taklı¯f ma¯ la¯ yut․a¯ k) had a direct implication on the question of the ‘actions of one who is compelled by force to act against their will’ (taklı¯f almukrah), such as one being forced to inflict pain on others by a third party at pain of death or serious injury.69 Another example is that of the ‘status of a person to whom revelation has not reached’. The Maturidis held they are responsible (mukallaf ) for believing in God (ı¯ma¯ n) and not attributing to God what is repulsive. Whereas the Ashʿaris held that no such responsibility exists whatsoever. The Muʿtazilis differed by stating that they are responsible (mukallaf ) for believing in God and responsible for every act that the mind can independently reach.70 Thus, in their formulation, they held that acts could be accounted for without recourse to revelation, an articulation of a form of natural law in their deliberations.

Does the logic of law making require a fixed methodology in order to work? Considering the nature of how the two different schools of ahl al-raʾi and ahl al-athar approached law and law making, the question could be asked, is it humanly possible, within the cognitive mapping of the human mind, to suspend one’s evaluative judgement on fairness, purpose and reason behind law, given that many cognitive studies have determined that the perception of fairness and teleological reasoning appear in humans from an early age to be applied in their environment?71 In theorizing on law, it may be possible to draw dogmatic or ideological stances that may not necessarily meet these requirements. Although, when these said stances come to interact with the real world, changes are bound to face them. Law would either have to adapt or it may, in this regard, not be applicable. In this regard several opinions within the four Madhabs arrived at notably similar conclusions to that of the ahl al-raʾi.

Theological investments, legal quagmires and human nature The ahl al-athar school realized that not all law could be based on the few occurrences found in the source texts, the Qurʾan and Sunnah. Therefore, they needed to devise methods by which rules could be drawn but only from the sources. While these jurists, and indeed later jurists, had the theological point of order that the mind cannot undertake tah․sı¯n or taqbı¯․h (to declare something pleasant or unpleasant), that ‘good’ and ‘bad’ do not inherently exist, and that God created humanity as a result of a ­command – one with no specific reason behind it, one may ask the question, how were new laws going to be tied in to the original laws? While the Ashʿaris believed that it was false to say that ‘the reason ah ․ka¯ m (rulings) were legislated by God was to benefit humankind’, they noticed that there was, in general, an iqtira¯ n (concordance) between the ah․ka¯ m and mas․a¯ lih ․ (benefits) that they brought to humankind. This concordance was one that came out of the experience of ah ․ka¯ m but not one necessitated by the intellect. To the Ashʿaris, the intellect had no say as to whether such mas․a¯ lih ․ were compulsory, or even allowed.72 Thus they afforded a form of taʿlı¯l (reasoning) for rulings by expressing that such benefits were ‘what was customarily expected of rules’ ( ja¯ʾat bihı¯ al-ʿa¯ da). Yet, they held that it was not the case that one necessitated the other. With this they then came to view that the rulings were in accordance with benefits to humankind, and that this concordance was a grace from God.73 Although, they maintained that ‘grace’ was not ‘the reason’ for God ordaining rulings. Thus, even though they opposed the principle of taʿlı¯l, they found that it was needed for law to function, and for legislating new laws for new contexts. The Maturidis, Atharis, and 58

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Muʿtazilis did not face this issue due to their theology, which had the position that reasons (ʿilal) were inherent in rules (ah ․ka¯ m) and their locus was inevitably benefit (mas․a¯ lih ․) to humankind. Further, in the determination made by the schools of jurisprudence that emanated from the ahl al-athar school, the place of mas․lah․a was also found to be in need of an avenue of expression even when the sources were available, though they had initially held that such mas․lah․a cannot be considered when source texts are available. This circumstance is probably best witnessed when they faced the question ‘what course of action is to be taken when a benefit goes against the source texts?’ They categorized the source texts (nus․u¯․s) to be of two types: specific (kha¯․s․s), such as the prohibition of asking for a woman’s hand in marriage after she has become engaged; and general (ʿa¯ mm), such as the rule not allowing the sale of an unspecified item. Furthermore, they looked at these texts as having one of two characters: one that is definitive (qatʿı¯ ) in its meaning and its authenticity, and one of doubtfulness (z ․annı¯) in either its meaning or authenticity. If a benefit (mas․lah․a) were to contradict a non-definitive text (nas․․s), be it in meaning or authenticity, then according to the Shafiʿis (those who were most opposed to raʾi), if application of the nas․․s causes a temporary harm (d․arar ʿa¯ rid․), then the benefit is permitted out of necessity, and the lesser of two evils. While in the Hanbali school, the as․․ha¯ b of Ahmad b. Hanbal held that benefit could act to specify (tukhas․․sis․) a text (nas․․s) if there is a contradiction between the benefit and the text. That is, the benefit becomes a special case not covered by the text, i.e. an exception. This also is the case for the Maliki and Hanafi schools. In terms of scope, the Maliki school held that all general texts (nus․u¯․s) of the Qurʾan and Sunnah are considered as not being definitive in meaning.74 Examples where this has been applied are in not requiring a person to undertake taklif / a qasam (to take an oath) when there is an unsubstantiated counter claim to their property. Furthermore, within the school, certain ongoing customs (al-ʿurf al-ʿamalı¯) can act to specify a general text as well as restrict a general source text (nas․․s).75 The later Hanafi school also allowed such exceptions to the Qurʾan and Sunnah due to benefit (mas․lah ․a),76 such as bearing testimony based on ‘hearing’ in certain cases.77 Another example is of the sale of seasonal produce ahead of its fruition where the crop is one that gives an indication of an expected produce, despite source texts prohibiting gharar (ambiguity in contractual obligations) and the sale of what one does not have. The Malikis used a term known as qiya¯ s khafı¯ (subtle analogy) in those situations in which normal application of analogy (qiya¯ s) appeared to produce an improper outcome. They used this in order to put forward a mas․lah․a juzʾiyya (partial interest).78 Where a ‘custom’ goes against the text, the later Hanafis have specified allowances whereby what is customarily known in a society is considered instead of the text on the issue. An example they use is that of the conditions of a contract (shuru¯․t), such as the ‘sale of keeping promise (alwafa¯ʾ) as it was a customarily known, type of contract despite it being an inadmissible condition (shart․ fa¯ sid).79 Such also applied to similar cases involving forms of interest (riba¯ ) in certain food stuffs.80 In time, according to Mustafa al-Zarqa, analogy (qiya¯ s) itself began suffering from an excess of use, leading the Malikis towards relying on other forms of deduction.81 Thus it appears that in setting formalized structures that did not quite fit the nature of the original character of law and law making of the early period, the ahl al-athar schools resorted to exceptions and further qualifications to try to release themselves from the quagmire that they had set up. It appears that while the ahl al-athar set out with a number of ideological and theological commitments, they found that eventually they required fine tuning in order to arrive at a more workable outcome. One that was in all possibility attainable with raʾi. 59

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Ahl al-raʾi and a means to natural law The early formulations of the school of raʾi, as previously described, granted a degree of ontological authority to reason by virtue of the reasoning process required of the mind in order to come to law that is just, equitable, and fair. Furthermore, as the principles of justice, equity, and fairness were recognized by the Qurʾan, giving the impression that these are expectedly innate, it may be argued that this ontological authority is much more comprehensive than has been granted to Islamic legal theory. It may be stated that with both the principles and contextual rulings that came to afford and promote justice and fairness, the expectancy that human reasoning is a must within the raʾi-based school may be seen as, at times, a form of natural law that places innate principles as central, with law making around them as fluid. Any legal rulings of the text can thus be seen as, at times, contextual demonstrations of these principles that must be continually reconsidered in light of them, but not despite them. It appears thus that the raʾi view of law and law making allows for a more dynamic and less dogmatically restricted characterization of the legal process and law making. Furthermore, it also appears to promote a view of law that allows for the preservation of arguable universal principles common to all humankind – principles that cannot be overridden for political or ideological expediency.

The polity and humankind on the island The discussion in Islamic literature on how government might serve justice is remarkably similar to 17th-century Western discourses on the state of nature or the original condition of human beings. One view – advanced by Ibn Khaldun (d. 808/1406) and Abu Hamid alGhazali (d. 505/1111) – argued that human beings are by nature fractious, contentious and not inclined towards cooperation. So, government is necessary to force people to cooperate with each other, contrary to their nature, and to promote justice and the general interest.82 Ibn Khaldun held that humans are both social beings as well as political by nature, and that humans are leaders by nature due to the istikhla¯ f (vicegerency) they were created for. Further, he held that the reality of kingship (mulk) is a communal necessity for humanity, and it entails dominance (taghallub) and force (qahr), which are the effects of anger and animalistic tendencies. Furthermore, given this state of being, a society, to Ibn Khaldun, needs a deterrent as well as a ruler who can judge between the various competing claims that rise due to the multiplicity of interests among the inhabitants of society, without which there would be chaos and the extinction of humankind. He finds credibility for this by stating that protection of humans is one of the necessities of the objectives of Islamic law.83 That being said, he has also been attributed with the stance that if people could live by God’s law, then there would be no need for a leader, a view also expressed by the Muʿtazilis.84 Al-Ghazali held the opinion that politics in itself does not hold the ability to undertake its stated objective except through a process of education and purification of the self. Furthermore, the direction of a human in society and society as a whole towards goodness as well as the provision of security cannot be organized except with a sult․a¯ n mut․a¯ ʿ (an authority that is obeyed). He draws readers to his observation of what trials and tribulations occur at the time of the death of a sultan – a situation that if left unchecked, leads to chaos, bloodshed and poverty. He builds his theory stating that this life has been created as a means to the next, and thus had it been one where justice ran throughout [i.e. was the status quo], then no discord would occur, and the tasks of 60

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the jurists would cease. However, it is one where desires run throughout, and thus discord was born and as such there was dire need for a sultan to manage their affairs, and the sultan was in need of a canon by which he could manage them with.85 Competing with the above theories are al-Mawardi (d. 450/1058) and Ibn Abi al-Rabiʿ (d. 688/1289) who argued that God created human beings weak and in need so that they would cooperate due to necessity. Cooperation would limit injustice by restraining the strong and safeguarding the rights of the weak. Furthermore, they believed that God created human beings different from one another so that they would need each other to achieve their aims. In this school of thought, human beings by nature desire justice and will tend to cooperate in order to achieve it. Even if human beings exploit the divine gift of intellect and the guidance of the law of God, through cooperation, they are bound to reach a greater level of justice and moral fulfilment, and the ruler ascends to power through a contract with the people, pursuant to which he undertakes to further the cooperation of the people with the ultimate goal of achieving a just society.86 However, al-Mawardi puts forward the theory that the ruler enjoys considerable discretion over ostensible legal issues that qualified jurists have come to by virtue of duties to uphold and carry out the law, ensure continued existence of the Muslim community, and preserve the sanctity of the public sphere.87 The Muʿtazili qadi ʿAbd al-Jabbar (d. 415/1025) held that a leader’s role was twofold, the first part relating to religion, the other to the matters of ‘worldly affairs’ (dunya¯), whereby the leader must bring benefit and mitigate harm in both. On the human element of society, Islamic schools of thought held that the human ‘self ’ (nafs) has the capacity for three spiritual levels: the nafs al-amma¯ ra bi-l-su¯ʾ (the self that invites to bad), the nafs al-lawwa¯ ma (the self that is constantly blaming and disciplining itself ), and the nafs al-mut․maʾinna (the self that is tranquil). Each of these is attainable, and thus, human action can lean to good or bad or both, depending on the person’s spiritual state. With such a framing, the necessity of law may have been seen, in part, contingent on how many in society had achieved which levels. Many theories on policy began to be developed by al-Farabi (d. 339/950), Ibn Sina (d. 427/1037) and Ibn Taymiyya (d.728/1328), yet they remained largely theoretical. In one case, al-Shatibi’s theories have influenced contemporary Muslim democrats, in a manner that shifts policy from one of dogma and ideology, to one that advocates for the achievement of the maqa¯․sid. They use the theories of law to be able ‘to serve the interests of humankind’ to include the protection of life, religion, progeny, wealth and the intellect.88 However, many have taken a step further and widened the scope of maqa¯․sid to include ‘freedom’ and ‘environmental protection’ among others. Yet some have criticized this approach of not being true to the textually based locus used by al-Shatibi. However, defenders of the approach see the theory of maqa¯․sid as facilitating a widening in the scope of Islam beyond texts, to allow for its own development in a manner that is also of benefit to people – whether it is mentioned by the Shariʿah or not.89 Indeed, the maqa¯․sid methodology, according to Andrew March, has allowed for a practicality in relation to concrete circumstances in which Muslims live, yet claim for this practicality on a traditional foundation.90 In such constructs, terms do not matter as much as the content and the outcome (maʾa¯ l). A non-­Muslim country that is just is more favourable than an unjust Muslim country. God upholds a just non-Muslim country but not an unjust Muslim country.91 As such, the view taken on governance is that it ought to be based on the establishment of benefit and the mitigation of harm.92 Indeed, al-Shatibi has been seen to offer a more realistic philosophy of religion and law by some secular writers. This can be seen, for example, in the work of Aziz al-Azmeh who commends elements of the philosophy in such terms and in particular al-Shatibi’s deliberation and use of mas․lah․a (benefit) in his discourse.93 This formulation has, for al-Misiri, allowed 61

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for a relative depolarizing whereby focus is shifted to the outcome of laws that have universal appeal.94 It has been suggested, however, that post-Westphalian models of state do not hold a compatibility with the premises of Islamic forms of governance.95 Although Muslim jurists debated political systems, the Qurʾan itself did not specify a particular form of government. However, it did identify a set of social and political values that are central to a Muslim polity. Three values are of particular importance: pursuing justice through social cooperation and mutual assistance (49:13; 11:119); establishing a non-­ autocratic, consultative method of governance; and institutionalizing mercy and compassion in social interactions (6:12, 54; 21:107; 27:77; 29:51; 45.20).96 Yet while the Qurʾan, when speaking on political matters such as shu¯ra (consultation), holds the process in high esteem, jurists, arguably, as a result of their contexts, began to consider existential questions – those that were tied to the inevitable direction of the Muslim p­ opulous – in very legal terms instead of philosophical. With shu¯ra, there was an emergence of two ‘valid’ legal arguments, one determining it to be legally binding, the other not.97 Given that power, at the time, was vested in a leader to choose any legal view considered valid, rarely did it become binding. Thus shu¯ra neither played a central role in pre-modern Muslim reasoning on the Islamic state nor was ever institutionalized prior to the 19th century.98 Had the approach to this been one that considered it in philosophical terms, based in reason, instead of fully textual in nature, that the prosperity of a community was contingent on shu¯ra¯ , a position that is largely accepted today as a pre-condition for natural progress, stability and seamless transfer of power, the question of whether shu¯ra¯ was binding or not need not have been answered given the existential repercussions of the omission of shu¯ra¯ in the world. Therefore, it may be suggested that such omission was a factor in the approach to governance given at al-Ghazali’s time, whereby he saw the necessity, as alluded to earlier, of a sult․a¯ n mut․a¯ ʿ (an authority that is obeyed) to avoid bloodshed. Indeed, al-Mawardi, under certain conditions, recognized the legitimacy of usurpation as a means of coming to power in the provinces of Muslim lands. It is arguable that this thought began to institutionalize the idea that an unjust ruler was better than conflict. It may be suggested that the net effect this had over the centuries was to limit the possibility of civic change and institutionalize injustice, with tacit approval from many jurists. These competing views on a divine command ethic largely remain until today. They present elements of Islamic jurisprudence – with which Islamic ethics are constructed – that are seemingly unresolved. This is in part due to the first principles upon which competing views have built their hermeneutics to approach the texts. The epistemology that initially guided the development of the early raʾi jurisprudence process, a process that by its nature was welcoming of reason and new forms of knowledge and discovery, is now considered by some as largely lost, with one of the poignant consequences being the spread of trenchant authoritarianism in contemporary legal determinations.99 It has been found that authority lends itself to a form of legal formalism, one where the law appears to the person holding this schema as complete and univocal.100 Not surprisingly, it has also been found that those holding such attitudes, whereby law is seen as unchanging, exaggerate the role of the text and minimize the role of the human agent who interprets it.101 Nowhere can this be seen better than in the tensions today between two schools of thought. The first wishes to see the development of fiqh and reinstate an epistemology of reasoning in it, using the progress that the social sciences and natural sciences offer, the development of governance that best meets the aspirations and innate nature of humanity, and the continued development of international law that stemmed in part from natural law102 as a project that continues to hold prospects for collaborative progress around shared ground and shared principles. The second 62

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school continues to entrench a status quo of unreasonableness in Islamic law, dogma and authoritarianism in both religion and governance, all the while relying on political precedent and the legal traditions of past centuries to do so. While scholars, state actors, students and institutions continue to work within the field, with some attempting to adhere to authoritarian ideology and others taking more reasoned approaches, much of the discourse appears limited by a lack of consideration of first principles, and their thorough development. Herein lies opportunity for new ideas.

Notes 1 Jalal al-Din al-Suyuti, Al-Ashbah wa-l-Nadhaʾir, vol. 1 (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990), 7, 50, 76, 90; Muhammad Hashim Kamali, ‘Legal Maxims and Other Genres of Literature in Islamic Jurisprudence’, Arab Law Quarterly 20(1) (2006): 77–101. 2 Muhammad ibn Ismaʿil al-Bukhari, Sahih al-Bukhari (Darussalam, 2000), 4. 3 A. Kevin Reinhart, ‘Origins of Islamic Ethics: Foundations and Constructions’, in The Blackwell Companion to Religious Ethics, ed. William Schweiker (Oxford: Blackwell Publishing Ltd, 2005), 244–53. 4 Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 24. 5 Judging by the number of manuscripts, the story had wide readership, finding its way in translation to Hebrew in the 13th and 15th centuries, Latin in the 15th century, English in the 15th and 17th centuries, Dutch in the 17th century and German in the 18th. It was thanks to its Latin translation and publication in Oxford in 1671 by the English Orientalist Edward Pococke that the story ‘The Younger’ entered into Western thought – most famously through Defoe’s Robinson Crusoe. See Gerhard Böwering, Patricia Crone and Mahan Mirza, The Princeton Encyclopedia of Islamic Political Thought (Princeton, NJ: Princeton University Press, 2013), 241. 6 These verses either directly, or indirectly, refer to an ʿilla (reason) for God’s creation of humankind and the circumstances in which they find themselves in life. 7 The formulation comes from my own determination. It finds its parallels and precedent in early schools of thought such as the Maturidi and Athari schools in addition to that expressed by classical maqa¯ sidian determinations as found in al-Alusi, al-Tabari, al-Razi, al-Qurtubi and Ibn ʿAshur. 8 Al-Tabari, al-Zamakhshari, al-Razi, al-Qurtubi, Ibn Kathir, Ibn ʿAtiyya, Abu Hayyan, Al-Biqaʿi, Abu al-Suʿud, al-Alusi, Ibn ʿAshur, al-Shinqiti. The collection includes the Athari, Muʿtazili, Ashʿari and Maturidi schools of theology. 9 Abu al-Qasim al-Zamakhshari, Tafsir al-Kashshaf (Beirut: Dar al-Kutub al-ʿIlmiyya, 1998), v. (2:150). 10 Tahir b. ʿAshur, Tafsir al-Tahrir wa-l-Tanwir (Tunisia: Al-Dar al-Tunisiyya li-l-Nashr, 1984), v. (2:150). Abu ʿAbdullah al-Qurtubi, Al-Jamʿi li-Ahkam al-Qurʾan (Dar al-Kitab al-ʿArabi, 2004), v. (2:150). 11 Muhammad Ismaʿil al-Bukhari, Sahih al-Bukhari, 9. 12 Ahmad b. Hanbal, Musnad al-Imam Ahmed (Dar al-Hikma li-l-Tibaʿa wa-l-Nashr, 1988), pt (21788). 13 Ibn ʿAshur gives theological credence to this by referring to the Maturidis and Hanbalis. 14 Abu al-Suʿud al-Amadi, Tafsir Abi al-Suʿud (Riyadh: Maktabat al-Riyadh al-Haditha, 1971), v. (6:165). Mahmud al-Alusi, Tafsir al-Alusi (Dar al-Fikr al-Islami al-Hadith, 2000), v. (40:26). Muhammad al-Biqaʿi, Tafsir al-Biqaʿi (Dar Ihyaʾ al-Turath al-ʿArabi, 2001), v. (30:24). 15 Muhammad al-Razi, Tafsir al-Razi (Dar al-Fikr, n.d.), v. (6:165). 16 Abu ʿAbdallah al-Qurtubi, Al-Jamiʿ li-Ahkam al-Qurʾan, v. (40:26). 17 Ahmad al-Tabari, Tafsir al-Tabari (Darussalam, 2007), v. (6:165). 18 Ibid., v. (6:168). 19 Tahir b. ʿAshur, Tafsir al-Tahrir wa-l-Tanwir, v. (6:165). 20 Ahmad al-Haytami, Al-Zawajir, vol. 1 (Beirut: Dar al-Maʿrifa, n.d.). 21 Abu ʿAbdullah al-Qurtubi, Al-Jamiʿ li-Ahkam al-Qurʾan, v. (37:106). 22 Al-Haytami, Al-Zawajir, vol. 1, 2398. 23 Ahmad al-Tayib, Mawsuʿat al-Mafahim al-Islamiyya al-ʿAmma, vol. 1 (Cairo: Al-Majlis al-Aʿla li-lShuʾun al-Islamiyya, n.d.), 473. 24 ʿAbd al-Jabbar al-Asdabadi, Al-Mughni fi Abwab al-Tawhid wa-l-ʿAdl, vol. 6, n.d., 48. 63

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25 Abu Mansur Al-Maturidi, Taʾwilat Ahl al-Sunnah Tafsir al-Maturidi (Beirut: Dar al-Kutub al-­ ʿIlmiyya, 2005). 26 Muhammad b. Al-ʿArabi, Al-Mahsul fi Usul al-Fiqh, ed. Husain Al-Badri, vol. 1 ( Jordan: Dar al-Bayariq, 1999). 27 Muhammad Al-Zarkashi, Al-Bahr Al-Muhit, ed. Omar Al-Ashqar, ʿAbd al-Sattar Abu Ghudda, and Muhammad al-Ashqar (Kuwait: Wazarat al-Awqaf al-Islamiyya, n.d.). Hasan al-Attar, Hashiyat Al-ʿAttar ʿala Jamʿ al-Jawamiʿ, n.d. 28 Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010), 3. 29 Abi al-Maʿali ʿAbd al-Malik al-Juwaini, Al-Irshad ila Qawatiʿ al-Adillah fi Usul al-ʿItiqad, ed. Muhammad Musa and ʿAli ʿAbd al-Hamid (Egypt: Maktabat al-Khanji, 2002), 258. Abu Hamid al-Ghazali, Al-Mustasfa min ʿIlm al-Usul, ed. Muhammad Al-Ashqar, vol. 1 (Beirut: Muʾassasat al-Risala, 1997), 113. 30 Ibn Hajar al-ʿAsqalani, Fath al-Bari sharh Sahih al-Bukhari, ed. A. Ali, vol. 10 (Beirut: Dar al-­ Maʿrifa, 1959), 27. 31 ʿAbdullah b. Bayyah, ʿIlaqat Maqasid al-Shariʿa bi-Usul al-Fiqh (London: Al-Furqan Islamic Heritage Foundation, 2013), 40. 32 Ahmad al-Qarafi, Al-Ihkam fi Tamyiz al-Fatawa ʿan al-Ahkam wa-Tasarrufat al-Qadi wa-l-Imam, ed. ʿAbd al-Sattar Abu Ghudda (Halab, Iran: Maktabat al-Matbuʿat al-Islamiyya, 1995). 33 David R. Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law (Ann Arbor, MI: American Oriental Society, 2011), 26. 34 Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (London: Oneworld Publications, 2014), 27. 35 Wael Hallaq, The Origins and Evolution of Islamic Law, 116. 36 Ibid., 145. 37 Ibid., 252. 38 Ahmad Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (Herndon, VA: International Institute of Islamic Thought (IIIT), 2005), 480. 39 Abu Is-haq al-Shatibi, Al-Muwafaqat, ed. ʿAbdullah Diraz, vol. 1 (Beirut: Dar al-Maʿrifa, 1998), 81. 40 Ibid. 41 ʿAbdullah ibn Bayyah, ʿIlaqat Maqasid. 42 Abu Hamid al-Ghazali, Al-Mustasfa min ʿIlm al-Usul, vol. 1, 139–40. 43 Ibid., 139–69. 44 ʿAbdullah ibn Bayyah, ʿIlaqat al-Maqasid, 24. 45 Abu Is-haq Al-Shatibi, Al-Muwafaqat, 171–6. 46 Wael Hallaq, The Origins and Evolution of Islamic Law, 147. 47 Muhammad al-Shahrastani, Al-Milal wa-l-Nihal (Cairo: Muʾassast al-Halabi wa-Shurakaʾuh, 1968). 48 Majid Khadduri, ‘The Maslaha (Public Interest) and Illa (Cause) in Islamic Law’, New York University Journal of International Law and Politics 12 (1979–80): 213. 49 Ahmad al-Saʿati, Nihayat al-Wusul ila ʿIlm al-Usul (Mecca: Umm al-Qura University, n.d.). 50 Ahmed al-Jassas and al-Nasamai, Al-Fusul fi al-Usul (Usul al-Jassas) (Kuwait: Ministry of Awqaf and Islamic Affairs, 1994), 223. 51 Ibid. 52 John Makdisi, ‘Legal Logic and Equity in Islamic Law’, The American Journal of Comparative Law 33(1) (1985): 63–92. 53 Hashim Kamali, ‘The Interplay of Revelation and Reason in the Shari’ah’, in The Oxford History of Islam, ed. John L. Esposito (Oxford: Oxford University Press, 2000), 112. 54 ʿAbd al-Karim Zaidan, Al-Madkhal li-Dirasat al-Shariʿa al-Islamiyya (Beirut: Muʾassasat al-Risala, 1995), 131. 55 ʿIyad b. Musa, Tartib al-Madarik wa-Taqrib al-Masalik li-Maʿrifat Aʿlam Madh-hab Malik (Morocco: Wazarat al-Awqaf al-Islamiyya, n.d.), 90. 56 Ahmad ibn Taymiyya, Darʾ Taʿarud al-ʿAql wa-l-Naql, ed. Muhammad Salim, vol. 9 (Riyadh: Jamiʿat al-Imam, n.d.), 49; ʿAbdullah ibn Bayyah, Fatawa Fikriyya ( Jeddah, Saudi Arabia: Dar al-Andalus al-Khadra, n.d.), 80–3. 57 Devin Stewart, ‘Muh․ ammad B. Da¯ʾu¯d Al-Z ․ a¯ hirı¯’s Manual of Jurisprudence’, ed. Bernard G. Weiss, Studies in Islamic Legal Theory (Leiden: Brill, January 2002), 118. 58 Ibid. 64

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59 Zafar Ishaq Ansari, ‘Islamic Juristic Terminology before Ša¯ fiʿı¯: A Semantic Analysis with Special Reference to Ku¯fa’, Arabica 19(3) (1972): 255–300. 60 Makdisi, ‘Legal Logic and Equity in Islamic Law’. 61 Ahmad Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm (Damascus: Dar al-Qalam, 2012), 197. 62 Wael Hallaq, The Formation of Islamic Law, 470. 63 Ahmad ibn Taymiyya, Darʾ Taʿarud al-ʿAql wa-l-Naql, 9:49. 64 ʿAbdullah ibn Bayyah, ʿIlaqat al-Maqasid, 50. 65 Khaled Abou El Fadl, Speaking in God’s Name, 35. 66 Bernard Weiss, ‘Interpretation in Islamic Law: The Theory of Ijtiha¯ d’, The American Journal of Comparative Law 26(2) (1978): 199–212. 67 ʿAbdu ʿAli Al-Ansari, Fawatih al-Rahamut bi-Sharh Muslim al-Thubut, vol. 1 (Beirut: Dar Ihyaʾ al Turath al-ʿArabi wa-Maktabat al-Muthana, n.d.), 61. 68 Jamal al-Din al-Isnawi, Nihayat al-Sul ʿala Minhaj al-Wusul lil-Baydawi, (Beirut: Dar al-­Kutub al-ʿIlmiya, n.d.), v. (1:59); Abu Bakr Ibn al-ʾArabi, Al-Mahsul fi Usul al-Fiqh, v. (1:96). 69 Ibid., 1:25. Muhammad al-Zarkashi, Al-Bahr al-Muhit, 1:358. Ahmad ibn Taymiyya, Al-Fatawa al-Kubra, ed. M ʿAta and M ʿAttar, (Cairo: Dar al-Raya lil-Turath, n.d.), v. (14:118). 70 Muhammad Imarah, Rasaʾil Alʿadl wa-l-Tawhid, 2nd edn (Cairo: Dar al-Shuruq, 1988), 286. Abu Mansur al-Maturidi, Al-Tawhid, ed. Fat-hallah Khalif (Beirut: Dar al-Mashriq, n.d.), 221–4. Abu Hamid al-Ghazali, Al-Mustas․fa min ʿIlm al-Usul, vol. 1 (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, n.d.), 61. 71 Kiley Hamlin, ‘Moral Judgement and Action in Preverbal Infants and Toddlers: Evidence for an Innate Moral Core’, Current Directions in Psychological Science 22(3) (1 June 2013): 186–93; Stephanie Sloane, Renée Baillargeon, and David Premack, ‘Do Infants Have a Sense of Fairness?’ Psychological Science 23(2) (1 February 2012): 196–204; Deborah Kelemen, Joshua Rottman and Rebecca Seston, ‘Professional Physical Scientists Display Tenacious Teleological Tendencies: ­Purpose-Based Reasoning as a Cognitive Default’, Journal of Experimental Psychology. General 142(4) (November 2013): 1074–83. 72 Taqi al-Din ʿAli ibn ʿAbdul-Kafi Subki, Al-Ibhaj fi Sharh al-Minhaj, vol. 3 (Egypt: Dar al-Tawfiq al-Masriyya, n.d.), 43. 73 Ibid. 74 Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm, 132. 75 ʿIsmat Ahmad Fahmy Abu Sinna, Al-ʿUrf wa-l-ʿAda fi Raʾy al-Fuqahaʾ (Cairo: Dar al-Basaʾir, 2004), 91–8, 123. 76 Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm, 134. 77 Muhammad ibn ʿAbdin, Rad al-Muhtar, 1st edn, vol. 4 (Al-Amiriyya, 1955), 375. 78 Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm, 96. 79 Majallat al-Ahkam al-Sharʿiyya, n.d., 118–19, 403. 80 Ibn ʿAbdin, Rad al-Muhtar, 4:187. 81 Ahmad Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm. 82 Khaled Abou El Fadl, Islam and the Challenge of Democracy: A ‘Boston Review’ Book (Princeton, NJ: Princeton University Press, 2015), 19. 83 Ibn Khaldun, The Muqaddimah: An Introduction to History, vol. 2 (Princeton, NJ: Princeton University Press, 1958), 155. 84 Böwering, Crone, and Mirza, The Princeton Encyclopedia of Islamic Political Thought, 36. 85 Abu Hamid al-Ghazali, Al-Iqtisad fi al-Iʿtiqad (Cairo, 1910), 96. 86 Khaled Abou El Fadl, Islam and the Challenge of Democracy, 22. 87 Böwering, Crone and Mirza, The Princeton Encyclopedia of Islamic Political Thought, 198. 88 Azzam Tamimi, Power-Sharing Islam? (Liberty for Muslim World, 1993), 53. 89 Rached Ghannouchi, Al-Dimuqratiyya wa-Huquq al-Insan (Beirut: Arab Scientific Publishers, 2012), 29. 90 Andrew March, Islam and Liberal Citizenship: The Search for an Overlapping Consensus (Oxford and New York: Oxford University Press, 2009), 264. 91 Ghannouchi, Al-Dimuqratiyya wa-Huquq al-Insan, 50. 92 Ibid. 93 Aziz Azmeh, Al-ʿAlmaniyya min Mandhur Mukhtalif (Beirut: Markaz Dirasat al-Wiħda al-­ʿArabiyya, 2008), 62. 94 ʿAbd al-Wahhab al-Misiri, Al-ʿAlmaniyya al-Juzʾiyya wa-l-ʿAlmaniyya al-Shamila (Cairo: Dar alShuruq, 2001), 164. 65

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95 Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2012). 96 See also Khaled Abou El Fadl, Islam and the Challenge of Democracy, 4. 97 Böwering, Crone and Mirza, The Princeton Encyclopedia of Islamic Political Thought, 200, 220. 98 Ibid., 116. 99 Khaled Abou El Fadl, Speaking in God’s Name, 1. 100 David Lyons, ‘Legal Formalism and Instrumentalism – A Pathological Study’, in Evolution and Revolution in Theories of Legal Reasoning: Nineteenth Century through the Present, ed. Scott Brewer (Abingdon: Taylor & Francis, 1998), 258. 101 Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (San Francisco: Harper Collins, 2009), 98. 102 Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press, 2014), 14, 80.

Select bibliography and further reading Azmeh, Aziz. Al-ʿAlmaniyya min Mandhur Mukhtalif (Lebanon: Markaz Dirasat al-Wiħda al-ʿArabiyya, 2008). Bayyah, ʿAbdullah bin. ʿIlaqat Maqasid al-Shariʿah bi-Usul al-Fiqh (London: Al-Furqan Islamic Heritage Foundation, 2013). El Fadl, Khaled Abou. Speaking in God’s Name: Islamic Law, Authority and Women (London: Oneworld Publications, 2014). Ghazali, Abu Hamid al-. Al-Mustasfa min ʿIlm al-Usul. Ed. Muhammad Al-Ashqar (Egypt: Muʾassasat al-Risala, 1997). Hallaq, Wael Hallaq. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2012). Ibn Khaldun. The Muqaddimah: An Introduction to History (Princeton, NJ: Princeton University Press, 1958). Isnawi, Jamal al-Din al-. Nihayat al-Sawl ʿala Minhaj al-Wusul lil-Baydawi (Beirut: Dar al-Kutub al-­ ʿIlmiya, n.d.). Makdisi, John. ‘Legal Logic and Equity in Islamic Law’. The American Journal of Comparative Law 33(1) (1985): 63–92. March, Andrew. Islam and Liberal Citizenship: The Search for an Overlapping Consensus (Oxford and New York: Oxford University Press, 2009). Misiri, ʿAbd al-Wahhab al-. Al-ʿAlmaniyya al-Juzʾiyya wa-l-ʿAlmaniyya al-Shamila (Cairo: Dar al-Shuruq, 2001). Qarafi, Ahmad al-. Al-Ihkam fi Tamyiz al-Fatawa ʿan al-Ahkam wa-Tasarrufat al-Qadi wa-l-Imam. Ed. ʿAbd al-Sattar Abu Ghudda (Halab, Iran: Maktabat al-Matbuʿat al-Islamiyya, 1995). Raysuni, Ahmad al-. Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (­Herndon, VA: International Institute of Islamic Thought (IIIT), 2005). Reinhart, A. Kevin. ‘Origins of Islamic Ethics: Foundations and Constructions’. In The Blackwell Companion to Religious Ethics, ed. William Schweiker (Oxford: Blackwell Publishing Ltd, 2005), 244–53. Subki, Taqi al-Din ʿAli b. ʿAbdul-Kafi. Al-Ibhaj fi Sharh al-Minhaj (Egypt: Dar al-Tawfiq al-Masriyya, n.d.). Suyuti, Jalal al-Din al-. Al-Ashbah wa-l-Nadhaʾir (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990). Vishanoff, David R. The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law (Ann Arbor, MI: American Oriental Society, 2011). Zaidan, ʿAbd al-Karim. Al-Madkhal li-Dirasat al-Shariʿah al-Islamiyya (Beirut: Muʾassasat al-Risala, 1995). Zarkashi, Muhammad al-. Al-Bahr Al-Muhit. Ed. ʿUmar Al-Ashqar, ʿAbd al-Sattar Abu Ghudda, and Muhammad al-Ashqar (Kuwait: Wizarat al-Awqaf al-Islamiyya, n.d.).

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2 ‘God cannot be harmed’ ‐ ‐ ‐ On H · uquq Allah/H · uquq al-ʿIbad continuum Wael Hallaq

I The sharʿı¯ concept of ․haqq1 navigates the cosmological-sociological spectrum robustly, from one end to the other. H ․ aqq is not only the Truth of the divine as ontology, but also the theological and supra-deontological source of that which is socially just (ʿadl), right (mustaqı¯m), and equitable (qist․). H ․ aqq is God as one and many, this being a ‘dualistic’ presence of His saturating the world in its unity, plurality and particularity. That which is right and equitable is derivative of the Truth, for the Truth, tautologically, encompasses all that is right and equitable. Like all else in the phenomenological world – the world that is explained nowadays through phenomenology and the sociology of knowledge – the very idea of ․haqq is itself a derivative of the real and not always a fully comprehensible concept as presumably appearing in the divine vulgate, a concept whose contents and boundaries remain subject to an indefinite and unceasing interpretive and intellectual quest of the human mind. The derivative is also no more than an approximate copy of the original, for the very challenge of the divine to the human kind – whose originary dilemma was the very concept of rational ‘autonomy’ represented in the Edenic Fall – is precisely the endless exercise of the mind to uncover the moral and ethical in worldly and social phenomena. As a derivative, then, ․haqq acquires different meanings within the various and varied intellectual and commentarial-textual traditions that made up much of the discursive formations of Islam for the 12 centuries prior to colonial conquest. In Sufism, for instance, al-H ․ aqq acquired socio-cosmological meanings of spirituality and piety that raised the bar of ethical engagement in the world through care of the self and individualistic self-definitions and redefinitions of behaviour. But the bar was admittedly not for everyone to reach, having an exclusivity that is eloquently attested by the survival to the end of the sojourn of a select but 2 small group of birds in ʿAttar’s powerful Mant․iq al-T ․ ayr. If the higher forms of Sufism were not for everyone, the Shariʿah was designed and specifically intended precisely to engender internal discipline and to regulate human behaviour in psychological ways across the entire social spectrum, leaving no type of person or recognizable space unregulated, be it a woman or a man, a minor or a major, the mentally firm or 67

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infirm, a proprietor or dispossessed, a free person or a slave, and so on. But it also integrated into its own concepts of justice an array of disciplines and ideas, ranging from moderated forms of mysticism, to logic, theology, adab and poetry.3 Due to its structural centrality, ․haqq had therefore to be defined simultaneously as a theological, moral, and legal concept, having navigated the waters that have flown and continue to flow from the divine to the humanly subordinate and even earthly banal. If the world is made by one mind, then it must be interconnected, and if all its parts relate to each other – which they do – then every part is as important as the next, and all, small and great, are seen to exist in symbiosis. The meanings and imperatives that attach to the concept must thus vary from one stage of the flow to the next. They must accommodate each resting place on the sojourn downward. The purest and most perfect form – that which we may characterize as the ideal or highest desideratum – lies at the source of the flow, where al-Lawh․ al-Mah ․fu¯․z is kept.4 But the proverbial water must flow further down, treading the physical world of humans and their social habitats, languages, customs and forms of knowledge, all of which being explicitly admitted by the entire range of Muslim intellectuals who discoursed on it as varied in the extreme. The Shariʿah’s domain, specialized yet extensive, begins at the point at which the divine Word reaches the realm of human understanding, the Word itself being stratified and diffused in its Manifestation (tajallı¯) throughout the Signs (a¯ ya¯ t) of Creation (khalq) as well as those of the Qurʾan sentential structure. Language, like any physical and intangible creation, is itself a divine a¯ ya (sign) that not only expresses thought but is also itself endowed with performative power (‘And We said to it “Be”, and so it became’) (2:177; 6:73; 16:40).5 Thus the performativity that engenders the regulative mode (those moral codes and rules governing human behaviour) is nothing more than the tail end of the mode in which the world itself was created. In this account, there is neither a Hobbesian moment nor secondary causes where God created a self-regulating world and left it to humans to run as they like, without boundaries that are conceived to always control and adjudicate human behaviour (legal or otherwise) by the highest standards of ethics. This ‘downward’ trajectory of ․haqq meant the non-separation of the low from high principles from which the concept emanated. In this trajectory, God is ever-present and most explicitly involved in regulating the social order. As we will see, the communal and collective, as much as the individual and particular, appear always as the locus of God’s heavy involvement, without positioning any of these in opposition or conflict with the others. The lower the flow of the moral code and its regulative domain, the more autonomy is granted to the individual.6 Yet, however thick this autonomy may be, it remains metaphorical at best, for just as humans cannot really own any material objects in the world, they cannot possess rights that are not derivative. Ownership of tangible matter and rights is never absolute, an intended tenuousness that did a performative work of immense importance, in terms of redistribution of wealth and much else. If ․haqq is the consequence and effect of divine volition, then it is also a divine providence and bounty, seen to derive its moral thrust and juridical rules from revelatory textuality as adapted to human circumstance and surround. Although this textuality merely intimates and gestures (ı¯ma¯ ʾ) at God’s will, leaving the moral-juridical challenge of living life as an ultimately human determination and decision (li-yabluwakum ayyukum ah ․sanu ʿamalan) (Q. 18:7; 67:1–2; 11:17.), the originary ․huqu¯ q, even in their indeterminate and inextricably abstract forms, are Allah’s and Allah’s alone. For Muslim jurists, theologians and other intellectuals, this affiliation with the divine amounted not only to a construction of the world that escaped the trappings of sceptical nihilism (which they encountered at every turn), but also ensured a 68

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morally derived legal culture that gave the concept of the rule of law a robust and particularly thick meaning. Yet, the strength and seriousness of the derivatives depend on the staying power and potency of that of which they are derivatives. Just as there is no single ․haqq devoid of God’s presence, there cannot be any ․haqq without a suffusive layer in it of human interest and welfare, even though it may appear to be a purely ordained ․haqq of God. As al-Shatibi (d. 790/1388) pointedly sums up the matter, every Sharʿı¯ value (h․ukm) must ineluctably contain a ․haqq of an individual believer (li-lʿiba¯ d) that is geared toward serving (an interest) either in this World or the Next, this (being based on the principle that) the Shariʿah was created for the purpose of serving the interest of Muslims.7

II H ․ aqq encompasses a range of meanings that are intimately connected to judicial decision, owned property (ma¯ l mamlu¯k), the property itself, the very attribute of ownership, entitlement,8 and all in rem and in personam claims. It signifies a legal stipulation that determines a right – over something or someone – or an obligation, thus covering the entire range of so-called religious obligations, civil rights, social codes of proper conduct, and the rights and obligations ruler and subjects possess within the body politic. This definition must always account for an essential connection between a right and a person to whom the right will ultimately be connected. The existence of an actual ․haqq (as opposed to a nominal one) without a person or entity associated with it thus becomes a conceptual and ontological impossibility, since a right must by definition presuppose a connection to, or implication of, a conception of person, subject or entity.9 The ontological-cosmological span of ․haqq’s range allowed the jurists to create a tripartite typology in which the ․huqu¯q are classified as God’s rights (h․uqu¯q Allah), believers’ rights (h․uqu¯q al-ʿiba¯ d), and a mixture that straddles the two. The latter was further sub-divided, in a graded manner, into those ․huqu¯q that belong more (gha¯ lib) to God and those belonging more to the ʿiba¯ d. Before proceeding, the term individual requires some clarification since any explication of ․huqu¯q al-ʿiba¯ d seems to invoke the individual and his or her ‘rights’.10 ‘Individual rights’ or ‘rights of the individual’ must henceforth be taken to refer not to the modern meaning of ‘individual’ but rather to the ‘believing individual’ and/or ‘believing individuals’, the subject and object of taklı¯f. In this designation, ‘belief ’ is emphatically a necessary condition, since ․huqu¯q arise because of the ontological presupposition of belief. The distinction is thus not between an individual as opposed to a group, a collective, or society at large, but rather between believers and God; or between considerations pertaining to the individual as the locus of personal rights and some areas of particularly grave communal concern and foundations of worship. It is, in other words, modulating the individual in communal space, as it is no less modulating the communal in the larger environment of creation. It would nonetheless be incorrect in this context to arrogate a supra-human status to God in terms of the ․huqu¯q of non-ʿiba¯ d, for much of ․huqu¯q Allah are in fact ․huqu¯q that relate to, and are often exclusively associated with, society at large, even when these take abstract or metaphysical forms. The point here is that the subject of distinction is not between the social collective and the private individual, or the private and the public – binaries that are distinctly modern. Rather, the distinction is between spheres in which there arises great concern with matters related to 69

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communal welfare and its moral fabric, on the one hand, and those related to private interests and the sacredness of individual rights within communal contexts, on the other. To speak of the distinction as one that pits the individual against the group would thus be misleading, since, as we will see, many ․huqu¯q Allah pertained to individual rights while a number of ․huqu¯q al-ʿiba¯ d pertained to collective or group interests. To anticipate my concluding argument in part, the distinction was intended to assert continuities on the spectrum of these ․huqu¯q while at the same time attempting to find an explanation for the right balance between and among the various relevant considerations in the resolution of each matter falling on any given point of the spectrum. As much as the discourse of ․huqu¯q Allah/h․uqu¯q al-ʿiba¯ d was heuristic in purpose (and it was), it had too many exceptions, overlapping, and grey areas to make it constitutive of originary – and thus reflective of the actual – conditions that gave rise to legal doctrine and constructive reasoning.

III It was a pervasive and consensus-like understanding among jurists and theologians alike that God’s rights are generally, though not exclusively, intended to regulate the sphere of ‘public’ interest where things in the world belong to no one person or group in particular. They are attributed to God, one jurist declared, because of the crucial importance of this sphere, let alone the profound concern that a coercive or oppressive (political) power (ah․ad min ­al-jaba¯ bira) might attempt to control it as his own, and to do with it as he likes.11 This seems to be a manifestation of providence rather than defining powers of control or rule. Clearly, the designation of God here is nominal, for it was understood by everyone that God the Self-Sufficient does not need to be given such honours or privileges, because, having created them Himself, He owned them ab initio and without qualification. Nor can He be harmed by conceding these rights, but fragile humans on the other hand can, and easily so.12 The jurists generally identify two distinctly different areas of the law that they deem to fall under God’s ․huqu¯q. The first and readily identifiable area is that of the conventionally categorized ʿiba¯ da¯ t, the so-called ‘rituals’ involving prayer, fasting, pilgrimage, alms-tax and a host of related branches of the law such as encouraging right and averting evil, commission of oaths, and generally acts related to niyya, where deliberate intent is an essential pre-­condition for right practice.13 The other area is what may be called in pre-modern Shariʿah the ‘public’ sphere of criminal offences, 14 including ․hudu¯d, discretionary punishments (taʿzı¯r), order on highways, public roads, ports, and public edifices, such as mosques, some waq fs, markets, bridges, etc. There is, however, yet another area that straddles these different domains, namely kaffa¯ ra¯ t, ‘mixing penalty and worship’.15 These are forms of expiation for a variety of infractions ranging from having sexual intercourse during Ramadan fasting to breaking an oath.16 These ․huqu¯q are generally said not to be subject to negotiation or reduction in their requirements of validity, procedure, or implementation. Nor are they subject to clemency, amicable settlement, or concession of any sort.17 For instance, while ‘individual’s rights’, such as debts, can be forgiven, God’s rights are not subject, without legal cause,18 to human bargaining of any sort, be they ․hudu¯d crimes or infractions as innocuous as a seemingly simple prayer. Whatever ․haqq the ʿabd can lawfully relinquish is not one that can be claimed by God.19 Thus, punishment of sariqa-theft20 or adultery, once established by a court of law, cannot be disposed of by the forgiveness of the theft victim or of the spouse of the adulterer, respectively. Nor, still, can God’s rights devolve upon the heirs, for these rights expire upon the expiry of the concerned charge, whether his or her faults relate to acts of worship or criminality. 70

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Nonetheless, the uncompromising appearance of ․huqu¯q Allah is somewhat deceptive, for in certain matters of the law, ․huqu¯q al-ʿiba¯ d do take precedence over their counterparts on grounds of the law’s obligation to be lenient or forgiving.21 Withdrawal (ruju¯ʿ) of zina¯ confession, for instance, has the power to annul the ․hadd punishment;22 and so does repentance for the commission of highway robbery.23 Al-ʿIzz ibn ʿAbd al-Salam (d. 660/1262) enumerates several cases in which ․haqq al-ʿabd supersedes that of God, but one particular example demonstrates the intimacy and mutuality of the relationship between the two categories. As is well known, jihad is a right of God, leaving the emir as the supreme commander of its campaigns. In modern military conduct, the general’s order in the battlefield reigns supreme, the violation of which could lead to the serious charge of subordination or desertion. As I have shown elsewhere in the context of a comparison between the modern state and Shariʿah with regard to conscription,24 the Shariʿah bestowed substantial autonomy over the combatants, passing over the commanding general’s orders. According to Sharʿı¯ regulations of armed engagement, combatants are permitted to withdraw (inhiza¯ m) from the battleground should they themselves – individually or collectively – estimate that defeat is inevitable due to being outnumbered (idha¯ arba¯ ʿadad al-kafara ʿala¯ aʿda¯ d al-isla¯ m).25 In this picture, the Schmittian decision to invoke the absolute exception collapses in the face of individual moral and political autonomy that eviscerates sovereignty’s absolute hold over life and death. Far from being Schmittian, ․huqu¯q Allah are set aside in favour of ․huqu¯q al-ʿiba¯ d, precisely in one of the most crucial moments of the political, the body politic, and of the state’s architecture of life and death. This autonomy relates to another feature that can be misleading to a modernly conditioned mind. Some Hanafi jurists held the position that a victim of a crime that is potentially classifiable within the category of ․huqu¯q Allah may opt for a private settlement, in effect preempting governmental interference.26 Only if he or she decides to sue in a court of law does the court decision become a matter of ‘state’ enforceability. There were some jurists who held opinions seemingly similar to the modern state’s model, whereby sultanic authority is granted an autonomous right to prosecute these categories of offences through Shariʿah courts. But it was by these courts’ law, not the government’s, that these ․huqu¯q were adjudged. We need not overstress, furthermore, that the very possibility of this ‘individual’ autonomy is absent from the modern state on principle (think, in particular, of homicide or of such examples as deserting the battlefield). H ․ uqu¯q al-ʿiba¯ d, on the other hand, pertain to the range of interests any person must enjoy, beginning with his right to buy and sell, gift, collect or forgive loans, entitlement to bloodmoney, damages, and her right to spousal support, alimony and the like. As intimated earlier, contrary to God’s rights, these rights can be forgiven, demanded, declined or otherwise. They are also liable to legacy, as in the case of children inheriting the right of their parent against a debtor (madı¯n) or ‘misappropriator’ (=usurper=gha¯․sib). Whereas these rights are elaborated by the jurists with a keen eye to prevent interference by any external authority or agent, the opposite, as we saw, was not true. H ․ uqu¯q Allah seem to be more malleable, negotiable and less ‘absolute’ than ․huqu¯q al-ʿiba¯ d. No reduction of God’s rights, whatever its extent, can, after all, hurt Him in the least. But the straddling of many ․huqu¯q over the two categories necessarily entailed a constant search for balance.27 Certain legal spheres may conjoin God’s and believer’s rights, in which case one type of right may overshadow or dominate over the other. Among the ․hudu¯d, qadhf directly affects a person’s reputation and standing in the community, but God’s rights  – ­according to the Hanafis28 – take precedence since the offence has public ramifications, affecting, as it were, the entire realm of social and communal value. The individual here is a 71

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microscopic instance of society at large, and his or her rights in this respect capture and distill the rights of all individuals making up the community (or so-called society). Homicide, on the other hand, represents an otherwise ‘mixed’ area of the law where the individual’s rights dominate over those of God’s. As attested in the Qurʾan and hadith, God has a right or at least a regulative interest in murder, since the heinousness of the crime surely affects the entire community in which it occurs. It is a ‘crime against the community’, if not ‘against humanity’,29 properly speaking. Yet, the harm is also very specific, directly and most perniciously affecting the victim and by extension the victim’s kin who have, furthermore, the statutory power to determine the type of penalty or even opt for forgiveness.30 There would probably be no difference between qadhf and homicide in terms of ․huqu¯q classification had it not been for the statutory Qurʾanic verse, one that lacks parallel in the case of qadhf, a comparatively less heinous crime. It would seem that customary law in the case of homicide was so entrenched within tribal structures of the pre-Islamic Near East that a degree of autonomy was granted the victim’s kin in opting for one of the three courses of action available to them. 31 As an offence, qadhf must have possessed weaker roots in agnatic or communal structures (especially in Iraq), thus allowing Hanafi fiqh to take individual agency out of the law. Social good and public interest thus cannot be always fixed as an ever-present consideration, not least for the reason that homicide is a significantly harder crime on society than qadhf is, and yet the ․huqu¯q of the individuals involved (the victim’s kin) override those of God. Historical analysis here might legitimately make demands on legal analysis of doctrine and reasoning, in that rationalization of doctrine must be recognized to have come subsequent to particular and often isolated historical developments. Both qis․a¯․s and qadhf acquired their substantive content and formal shape prior to the rise of the doctrinal distinction between ․huqu¯q Allah and ․huqu¯q al-ʿiba¯ d. Which is also to say that the doctrine of ․huqu¯q is, indeed, a post eventum justification that dialectically but mildly (if not externally) contributed to the refinements in legal doctrine at a later stage (mostly after the third/ninth century, when the legal system had already taken its general shape). We therefore cannot make too much of it in the way of showing the ‘naturalistic assumptions’ on the basis of which fiqhı¯ analysis and reasoning created and distributed rights, duties and public commitments.32

IV But it is also a tall claim to argue for the equation of ․huqu¯q Allah with political power. Some scholars make strong claims in this regard, equating ․huqu¯q Allah with ‘state’ control, while others adopt a mitigated version of these claims in favour of a graded landscape whereby the more the ․huqu¯q inch towards God the more discretion political power has over them. Such theories may not have taken sufficient notice of two important considerations: First, the jurisdiction of political power must be understood in a highly constrained sense, for the role of that power was executive, not legislative nor judicial. The ‘state’ (in our context an inaccurate term at best) did not legislate ․huqu¯q Allah, nor did it adjudicate them as a matter of substantive law. According to some jurists, the sultanic executive can prosecute certain offences irrespective of whether or not the victim initiates a lawsuit. But prosecution here must be understood to mean the bringing of violators before Shariʿah courts and executing those courts’ judgments against them, with nearly no other function or role in between. In the majority of cases, the executive only enforced the courts’ verdicts, and this on the terms of a law that was not of its own making. Any subsidiary sultanic enactments within these spheres were administrative in the thinnest sense of the word,33 meagre in substance, 72

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sporadic in appearance and generally ephemeral (often repealed upon the death of the sultan issuing them).34 Furthermore, these administrative measures often came to reinforce and elaborate on fiqh’s subject matter. Second, the claim has a short travelling span. As we saw, a significant part of ․huqu¯q Allah was not of interest to political authority because they were deemed to be matters of worship. Aside from managing pilgrimage logistics, securing roads to Mecca and occasional direct management in the levy of zakat, the greater parts of the arka¯ n lay outside of the reach of political power. The little understood technologies of the self (significantly residing within the subjective performative power of the arka¯ n) were and continued to be until the present of no interest to political power, not even to the modern state or its legislative arm of social engineering. To arrogate intimate connections between ․huqu¯q Allah and political power is not only to misunderstand both ․huqu¯q Allah and political power in pre-modern Islam, but also to subscribe to unfounded and colonialist ideas of ‘Asiatic despotism’, ideas initially constructed precisely to justify and rationalize Europe’s colonialist ventures in Asia and Africa. Perhaps it is not out of place to note here a representative Orientalist understanding of these ․huqu¯q, one that is both incoherent and anachronistic. In an article on the subject, Baber Johansen is at pains to navigate a narrative that genuinely attempts to reconcile his own, though culturally engrained, biases that emit an ‘Asiatic despotism’ narrative with a fiqhı¯ counter narrative that insisted on the supremacy of Shariʿah’s rule of law. His choice characterization of ․huqu¯q Allah is the attribute of the ‘absolute’, a term that recurs in the article with astounding frequency. It is not surprising then to read in Johansen that ‘in the public sphere’ the jurists ‘expect the individual to act as servant of the public interest. Therefore the private legal person may not derive any personal advantage from his role as servant. This is obvious for the “claims of God” which consists of acts of worship. No worldly reward is granted to the individual legal person if he performs his prayers or fasts during Ramadan’.35 Why prayer or fasting now belongs to the ‘public sphere’ (a purely modern conception with specifically modern political contents and connotations) is not clear. In fact, Johansen does not trouble himself with explaining the qualitative difference between ‘penal law’ and the arka¯ n ­(inaccurately labelled ritual law) insofar as they both equally belong to ․huqu¯q Allah. If there is any meaning to ‘privacy’ or ‘private domain’, it is precisely in that sphere which no political agency can penetrate: that between the believer’s mind and heart and his or her God. This is the inner core of the ‘private’, something that the genius of the modern state understood so well that with all its powers of domination and social engineering, it did not as much attempt to enter that domain, at least not openly or directly. But prayer is at one and the same time a ‘political’ concept, not only because of the assembly rights that it trumps in a group setting, but also because of its role in the construction of a robust notion of positive liberty, a notion that is nothing if not pregnant with political implications.36 I, of course, need not rehearse here the relationship between what Johansen calls ‘reward’ and the potent concept of positive liberty that the technologies of the self engender. This much-neglected form of liberty gains specific and special importance in cultivating a subjectivity that does have its own reward (to which mass movements of Sufism surely could attest). To portray the arka¯ n as mere ‘rituals’ is to miss the power that prayer and fasting and pilgrimage, among others, engender in the production of ‘rights’ and ‘duties’ that define the quality of ‘freedom’.37 This is consistent with the argument I made elsewhere that these arka¯ n construct a moral subjectivity that transcends but does not ignore politics, government, or any aspect of material life. If anything, this technology – which is moral in the first instance – constructs a subject whose engagement with the minutiae of worldly life is as important as dedication of the moral self to the ethical design of transcendental power. 73

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Instead of viewing the relationship of prayer and fasting to ․huqu¯q Allah in this vein, Johansen sees them as indicative of servitude, no more than an aspect of the manifestation of ‘surrender’, for which Islam is so well known in Johansen’s Europe. To be in the realm of ․huqu¯q Allah is then to stand in the ‘role as a servant’. That’s all the Muslim subject can do vis-à-vis political power. In fact, it seems that this is just the beginning of servitude and unprivilege, not their middle or culmination. The process of servitude can even be elided into subtraction of rights, a servitude that not only exploits labor but devours whatever wealth remains in the possession of the ‘state’s’ subject. It is not just in prayer and fasting that servitude appears, but also in ․huqu¯q Allah’s provinces of taxation and criminal law, ‘especially in … theft (sariqa)’. The owner of the stolen property can bring the case before the qadi and request punishment of the thief. But if he does so, he forsakes his claim to financial compensation for his property. Private claims and liabilities cannot be regulated by means of public punishment: al-h․add wa-l- ․dama¯ n la¯ yag˘atmiʿa¯ n (sic.; yajtamiʿa¯ n). If the government makes use of its absolute prerogatives, it does not do so in order to secure private advantages to private legal persons. If a ‘claim of God’ is fulfilled, it excludes the fulfillment of any ‘claims of men’ resulting from the same action. The public and the private interests cannot be interchanged. God does not tolerate any sharing of his claims with individual legal persons.38 Aside from positing oppositional binaries and mutual exclusions of ‘interests’, the ­Muslim God here is made to resemble Europe’s Christian God as practised by the medievalist C ­ atholic Church: selfish, intolerant and even vengeful (we even notice that ‘God’s rights’ now takes over the native and Arabicate ‘h․uqu¯q Allah’, which our author uses nearly everywhere else). In this imagination, God sets himself apart from the very society he created and does so in virulently oppositional and hostile ways. It is an imaginary narrative that contradicts the very raison d’être of the ․huqu¯q theory, subverting it and eviscerating its social and ethico-­humanistic intentions. The ․huqu¯q theory was set up not only to define the limits of, and protect, individual and private ‘transactions’ but also, and perhaps more importantly, to prop up the technologies of the self and social control as integral to the kingdom of God on earth. God here is both sociology and anthropology; He is economics and practical theology, learning and mercantile dealings. Far from setting Himself apart from society, God is society and its interests. If zakat’s exclusive raison d’être is to aid the poor, and if it is simultaneously a ․haqq Allah, then God is either the poor or their embodiment. This charitable institution was not a social project whose function is to contain crises that are the result of excesses committed, in the name of a particular political organization, by one class against another: rather, it was an epitome of a paradigmatic structure that enabled charity and philanthropy on the widest societal scale ever possible. The zakat, ․sadaqa¯ t and waq f 39 (this latter claiming an average of 50% of all real property in the Muslim world)40 extended so far and wide, and so deeply into the social institutions of Islam across the centuries and regions, that ‘God’ here acquires a diametrically opposite function and image to that which Europe’s Christian God occupied. H ․ uqu¯q Allah, as ‘God’ implemented them in real practice within the redistributive wealth institutions and social practices, stood in comparative antithesis to the extraordinary wealth expropriated by Europe’s Catholic Church for the expansion of its own power. It is also no less curious that Hanafi law in Johansen’s account is emphatically characterized as ‘proprietor’-oriented, yet the same school that places such a premium on ‘proprietorship’ subordinates the entire range of its proprietary principles when political authority shows 74

‘God cannot be harmed’

up on the discursive scene. This quashing of proprietary rights is double-edged, furthermore. The ‘state’ does not only engage in oppressing individual rights to property and to transacting in respect of these properties, however lawful these may be, but it extends its dominion further to exercise a measure of punitiveness at the expense of the proprietary individual. It is either the rights of the ‘state’ or of the individual, but not both. ‘If a “claim of God” is fulfilled, it excludes the fulfillment of any claims of men.’ This interpretation is in fact both factually incomplete and interpretively wrongheaded. We have seen that while there are rights that exclusively belong either to God or ‘man’, there are many more that contain a mix of the two. The ‘mix’ is a main theme of the jurists’ discourse, one that preoccupied them without respite. A number of distinguished jurists argued that strictly speaking all ․huqu¯q straddle the God-human spectrum.41 Second, even if Johansen’s interpretation of Hanafi law is correct (which it is not), then which Hanafi jurists adopted such positions as he describes in the quoted passage above? What might Johansen make of those who proffered different views, within and without the Hanafi school? How did pluralistic doctrine affect actual practice? An answer to these questions may be a tall order within the confines of this space: focusing on Johansen’s interpretation of Hanafi doctrine might nonetheless be sufficient to show the unjustifiable casting of ․huqu¯q in political terms (and much less despotic political terms). It is the universal juristic doctrine in Sunnite Islam that restoration of the stolen property and the penalty of amputation are in principle required.42 Abu Hanifa (d. 150/767) and every member of his school accepted this doctrine. The only condition that Abu Hanifa – together with some other Hanafis, Thawri (d. 161/778) and Ibn Abi Layla (d. 148/765) – insisted on was that the stolen property be itself (‘ayn) still in existence and retrievable. Otherwise, he held that the meting out of penalty precludes compensatory damages. Malik and his colleagues in the school added that if the thief is well-to-do, then the plaintiff can indeed pursue damages (that is, even if the stolen object itself is not retrievable) but this right is waived if the thief is poor. Ibn Rushd (d. 520/1126) explains that the doctrine which combines punishment with restitution is based on the reasoning that sariqa trumps ․haqq Allah and ․haqq al-ʿabd together, which is to say that even if the stolen object itself is not to be found, a monetary compensation is to be made instead, and alongside the punishment. Abu Hanifa and his followers held that insistence on compensatory damages and penalty would amount to punishing the same offence twice. For them, the amputation penalty stands in lieu of damages (inna al-qat․ʿ huwa badal min al-ghurm),43 with the distinct implication that the issue for them is one of fairness towards the thief: however offensive his or her deed, he or she should not be punished twice for the same offence. And this is precisely what al-Shaʿrani argues. In his al-Mizan al-Kubra (The Great Balance, a work that attempts to show how al-Shariʿah al-samh ․a¯ ʾ balances and evens things out in its approaches to society and life44), this jurist explains that the reasoning behind the various doctrines on this point are concerned exclusively with the defendant and not the plaintiff or executive authority. In the case of the Hanafi single punishment as well as in the case of waiving the plaintiff’s right to restitution when the thief is bankrupt, the reasoning is one and the same: in the first case, leniency that is intended to avert double punishment; and in the second case, sympathy with the thief ’s poverty. The thief deserves ‘leniency because there is a whiff of an excuse, namely, his need and poverty’.45 The Hanafi doctrine thus seems more concerned with fairness towards the defendant than with even preserving the integrity of the individual’s proprietary rights, however inviolate these latter were. But it should not escape us that proprietary rights are invoked only insofar as the stolen property remains in existence, which is to say that if it is not in existence, the demand that the thief be punished and simultaneously be required to secure debts to pay 75

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for what he or she stole would have been deemed both excessive and oppressive. Poverty, in other words, defeats wealth, and this is a view that would a fortiori preclude the interests of executive power, routinely seen as potentially and inherently abusive. Thus a proper reading of juristic discourse on this matter squarely militates against Johansen’s interpretation. The single, rather than dual, punishment both protects the defendant from two punishments for one offence and affords the plaintiff the option of securing his or her property if he or she so chooses to do. But latent misinterpretation does not stop here, nor is it devoid of self-contradiction. ­Johansen’s notion of the ‘absolute’ straddles the two divides of his narrative: on the one hand, it is an oppressive ‘absolute’, doing the work of the European narrative of ‘Asiatic despotism’, and, on the other hand (when Johansen faces the reality of the jurists and their persistent discourses), it is the Shariʿah’s unwavering and resilient defense of individual and communal rights against possible forms of oppression. He recognizes that The lawyers try to protect the rights of the individual against all possible infringements by the authorities. They do this by closely defining those actions of the political authority that are legitimized as ․huqu¯q Allah, thereby narrowing down the possibility of state interference in the affairs of the private legal persons.46 After spending numerous pages speaking of the ‘absolute’ character of ․huqu¯q Allah as the domain in which the ‘Islamic state’ has ‘absolute’ rights, Johansen now makes the transition to the jurists’ world and attributes partial will and agency to them: they ‘try’. But ‘trying’ turns out to be more than the term implies, even by Johansen’s account. Just before the end of the article, ‘trying’ begins to acquire intense connotations. For ‘the Hanafite lawyers,’ he writes, the ․huqu¯q Allah are the transcendent and religious sphere of the ․huqu¯q al-ʿiba¯ d and the necessary framework for their survival. This is why the ․huqu¯q Allah are recognized as absolute by the Hanafite lawyers, and for this reason the government is the trustee of the public interest.47 Any government trespassing these frontiers risks the demolition of its own legitimacy. This is not all, however. A ruler ‘interfering with the ․huqu¯q al-ʿiba¯ d should be treated just like any other person’,48 a juristic doctrine that – I have elsewhere argued – amounts to the absence of any immunity associated with government personnel.49 It appears that the main point Johansen is attempting to drive home is captured in the following passage: ‘the government is entitled to exercise its absolute prerogative only in order to protect the realm of the exchange relations of the private owners. Government action loses its absolute character as soon as it interferes with the “claims of men”’.50 It remains unclear what this ‘absolute’ means. All we can assert with confidence is that only towards the end of Johansen’s account does it begin to have no place in the sphere of ․huqu¯q al-ʿiba¯ d. The jurists, he now seems to say, guarded these ․huqu¯q with prejudice. In fact many of them – as Anver Emon has shown and as our discussion above has suggested 51 – ­insisted on the preponderance of ․huqu¯q al-ʿiba¯d over ․huqu¯q Allah when the two competed for priority of consideration. But what meaning, one might ask further, does this ‘absolute’ bear in ․huqu¯q Allah if: (a) ․huqu¯q Allah were systematically identified, reasoned and legislated by a civil population of jurists – private individuals whose erudition and learning (ʿilm) in effect constituted the ‘legislative’ organ through which the law of the land was constructed and articulated?; (b) the law, in its substantive and procedural components, was administered by a judiciary that emanated from, and operated within, that autonomous community of jurists 76

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(a community that flourished within a legal epistemology and system of education of its own making, having been largely isolated from sultanic interference or management/governmentality; or, to put it in Foucaultian terms, from any recognizable form of bio-power)?; and (c) the verdict was the work of an autonomous judiciary? What remained in all this was essentially the execution of the verdict, undoubtedly the business and task of the executive. The architecture of the modern state in this picture is entirely absent, an architecture under whose overwhelming spell Johansen seems to be writing. The sultanic executive was no such state, not even equivalent to its executive branch. The sultanic executive did not command the legislative or the judiciary, except for managing the outer organization of the court system; it did not make law to speak of (especially when we compare its qa¯ nu¯ns and extra-Sharʿı¯ administrative legislation with the modern ‘administrative state’);52 it did not carve out the private and public spheres, the boundaries of which the modern state delineates, controls and constantly negotiates in accordance with a calculus of power that has itself as its own teleology.53 But most importantly, the sultanic executive was not invested in the logic of juristic reasoning and its teleology, which is to say that it saw its function as limited to an enforcer of the law and, most especially, the enforcer of the punishments of ․huqu¯q Allah, without this always implying that when people litigated within the sphere of ․huqu¯q al-ʿiba¯ d, the government was not at times entrusted with the same duty of enforcing court decisions.54

V Representing the common doctrine, al-Shatibi insists that there are no ․huqu¯q that exclusively belong to the individual, ones that are stripped of any trace of God’s ․haqq. This, al-Shatibi seems to argue, is an ontological impossibility. But equally impossible – based on the cardinal premise that the Shariʿah’s raison d’être is serving nothing less than the best interests of ­Muslims – is any ․haqq that is exclusively God’s, for the ʿiba¯d are, after all, the matrix and locus of every ․haqq; without them there would be no ․huqu¯q in the first place. It is customary for jurists, al-Shatibi says, to explain God’s ․huqu¯q as those areas or points of the law where the ʿabd has no choice, no agency, or no say (la¯ khı¯rata fı¯hi lil-mukallaf ),55 and whether these points or areas were rationally intelligible or not (as in the case of certain ‘rituals’). We may, for instance, understand why we should pray, but it is not entirely clear why the specific timing of these prayers, why, in other words, these five times, and not others, or why five and not four, seven or eight. Another way of delimiting the space of these ․huqu¯q would be to say that any ․haqq relating to the Hereafter is God’s right, whereas ․haqq al-ʿabd would be that which relates to her concerns and interests in this life. Which is also to say that the essentially transcendental (and thus not entirely intelligible) defines the boundaries of God’s ․huqu¯q, while that which belongs to normative human conduct defines the limits of it counterpart. The distinction then appears to be between ʿiba¯ da¯ t and ʿa¯ da¯ t, the former being ‘exclusively’ God’s while the latter ‘exclusively’ the believer’s. But in all of this, al-Shatibi is summing up a diversity within unity, bringing the divine to bear upon the human and vice versa. Despite the persistence of typology and classification (which authorize the moral and the legal, splitting and joining at once, at times delineating enforcement and at others alleviating the unbearable) there remains a constant and equally stubborn flow and counter-flow between these ‘rights’. They rarely ever seem to clash, and never are they defined in oppositional terms, but are rather conceived as constituting a continuity on a spectrum, and with each other. The highflying sufi who has already arrived at a stage that dispenses with the techniques of the Shariʿah would find the ebb and flow of ․huqu¯q not only most natural for those who need basic guidance but also descriptive of the limitless diversity within the 77

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greater unity. Little wonder then that al-Shaʿrani wrote al-Mizan al-Kubra. For the jurist-sufi or sufi-jurist, these divisions and forced categorizations ultimately serve these techniques, simplifying the rationalized foundations of moral-legal obligation. Neither narrative negates the other; if anything, these are mutually enhancing performative discourses that seek to assert their own imperatives at best, but always within an overall unifying moral epistemology and teleology. They are themselves integral to the great variety whose teleology is One and the same. For the world is ultimately interconnected through One Logic, One Structure and One Matter. Categorization is an old performance, but oppositional fragmentation of categories is endemic to our modern forms of knowledge. To superimpose the latter on the former is to make the Other speak a language it never knew. It is to make the Other even more distant and less intelligible than it already is.

Notes 1 In classical Arabic, ․haqq is the singular form of ․huqu¯q, but it is also an abstract noun signifying the idea, phenomenon or concept as an intangible entity. The plural form, however, was nearly always grounded in particular and concrete rights. In modern Arabic, the plural form has come to mean the abstract notion of ‘rights’, and when combined with kulliyya (college), it referred to the modern ‘law school’, where students learn about ‘rights’ as well as laws that give rise to rights. Although terminological designation is not always significant or instructive, it is significant that the move from the pre-modern ‘madrasa’ to the ‘kulliyyat al-h․uqu¯q’ signalled a shift in understanding the concept of ‘law’ as a coercive state system: whereas ʿilm and dars (learning and study) embodied the technologies of the self that engendered a particular form of hermeneutics – that is, where moral techniques of the self and ethical hermeneutical apparatus came together as a union – the ‘kulliyyat al-h․uqu¯q’ mainly connotes the technical study of the law as a system of rights. This shift is paradigmatic, in the sense of deep change within the structural central domains of culture and social constitution. On paradigms and central domains, see Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2013), 6–13. 2 Farid Ud-Din Attar, The Conference of the Birds, trans. Af kham Darbandi and Dick Davis (New York: Penguin, 1984). 3 Cf. Shahab Ahmed’s What is Islam? (Princeton, NJ: Princeton University Press, 2016), in which he misinterprets my writings on the subject and attributes to me – as well as to others – an excessively narrow understanding of Shariʿah’s range and cultural embeddedness. On my theoretical and substantive reservations with regard to the terminology of ‘law’ and ‘legal’, see Wael Hallaq, Sharı¯ʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 1–6, a work which Ahmed lists in his bibliography but which he does not seem to have read. On the paradigmatic stature of the Shariʿah in terms of its engagements with various other central and peripheral domains, including mysticism, adab and much else, see The Impossible State, 6–15, and ch. 5. 4 Q. 85:22. 5 See also Wael Hallaq, ‘Moral Cosmology and the Structure of Life’, in Re-Citing the Qurʾan to Modernity (in progress). 6 On qualifications pertaining to the concept of ‘individual’, see section II of this volume. 7 Abu Is-haq al-Shatibi, Al-Muwafaqat fi Usul al-Ahkam, ed. Muhammad Muhyi al-Din ʿAbd al-­ Hamid, vol. 2 (Cairo: Maktabat M. ʿAli Subayh, 1970), 233. 8 As in Q. 70:24–25. 9 ‘Subject’ or ‘entity’ is intended to enlarge the scope of definition beyond the natural person so that institutions like waq f (which are no less embedded in a matrix of ․huqu¯q) are also taken into account. 10 Of course a proper, nuanced and full explanation of ․huqu¯q al-ʿiba¯ d (as well as ․huqu¯q Alla¯ h) requires a near comprehensive account of the fiqh, discussing each of these ․huqu¯q in its theoretical, substantive and juridical contexts. But then this begs the question, for if such an account of fiqh is assumed, then the need for an explanation of the ․huqu¯q would become superfluous. 11 ʿAlaʾ al-Din al-Bukhari as cited in al-Mawsuʿa al-Fiqhiyya, 45 vols (Kuwait: Wazarat al-Awqaf wa-lShuʾun al-Islamiyya, 1993–2006), XVIII, 8. 12 ʿAli b. Muhammad Sayf al-Din al-Amidi, Al-Ihkam fi Usul al-Ahkam, ed. ʾAbd al-Razzaq ʿAfifi, 4 vols (Riyadh: Dar Sumayʿi, 2003), II, 332; Abu ʿAbdullah Badr al-Din al-Zarkashi, Al-Manthur fi 78

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14 15 16 17 18 19 20 21

22 23 24 25 26

27 28 29 30 31 32

al-Qawaʿid, ed. Muhammad Ismaʿil, 2 vols (Beirut: Dar al-Kutub al-ʿilmiyya, 1421 AH/2000 AD), I, 299–300. See Hallaq, Sharı¯ʿa, 229–30; Al-Shatibi, Muwafaqat, II, 333. Al-Shatibi expands the scope of niyya beyond the conventional delimitation, thereby including virtually the entire sphere of muʿa¯ mala¯ t. From sales to giving loans and from marriage to divorce and pecuniary familial support, niyya is to be present (giving a loan thus can be a merely self-interested transaction of profit, but when intention is present it would be motivated by a genuine feeling of extending support to a fellow Muslim (kama¯ idha¯ aqrad ․a imtitha¯ lan li-l-amri bi-l-tawsiʿa ʿala¯ al-Muslim). For qualifications with regard to the use of such terminology, see Hallaq, Sharı¯ʿa, 308–9. Al-Zarkashi, Manthur, I, 299. Ibid., I, 299, 203–4. Although withdrawal of zina¯ confession, for instance, has the power to annul the ․hadd punishment. See n. 23 below. Some jurists permitted forgiveness by way of repentance in certain offences. See Al-Zarkashi, Manthur, I, 300. Ahmad b. Idris al-Qarafi, Al-Furuq aw Anwar al-Buruq fi Anwa’ al-Furuq, ed. Khalil Mansur, 4 vols (Beirut: Dar al-Kutub al-ʿilmiyya, 1998), I, 256. Sariqa-theft is a ․hadd, to be distinguished from a theft that does not meet the procedural requirements of ․hadd, an offence categorized as, and punished by, taʿzı¯r. ʿIzz al-Din b. ʿAbd al-Salam, Al-Qawaʿid al-Kubra al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam, eds. Nazih Hammad and ʿUthman Damiriyya, 2 vols (Damascus: Dar al-Qalam, 2000), I, 255ff. The section dedicated to this theme is entitled ‘Fı¯ma¯ Yuqaddam min H ․ uqu¯q al-ʿIba¯ d ʿala¯ H ․ aqq al-Rabb Rifqan bihim’. It is also instructive that in another section (I, 252ff.), where he speaks of ․huqu¯q alRabb as having priority over ․huqu¯q al-ʿiba¯ d, Ibn ʿAbd al-Salam casts the priority as being motivated by ‘advancing the interests of the ʿiba¯ d in the Hereafter’. This common doctrinal attitude, needless to say, in effect reflects a theistic humanism no less interested in the welfare of human beings than secular humanism is, albeit providing a different rational articulation of the world as well as a different understanding of what the concept of interest signifies. Al-Zarkashi, Manthur, I, 299. Muhammad b. Ibrahim al-Baquri, Tartib al-Furuq wa-Ikhtisaruha (Beirut: Dar Ibn Hazm, 2005), 397. Here al-Baquri reports al-Qarafi’s pondering over why this heinous crime – alongside that of heresy (another ․haqq Allah) – is trumped by nothing more than repentance. Hallaq, The Impossible State, 92–5. Ibn ʿAbd al-Salam, Al-Qawaʿid al-Kubra, 255. See also Hallaq, The Impossible State, 94–5, for other jurists’ doctrines upholding the same legal norm. Baber Johansen, ‘Sacred and Religious Element in Hanafite Law – Function and Limits of the Absolute Character of Government Authority’, in Islam et Politique au Maghreb, ed. E. Gelner and J.C. Vatin (Paris: Centre National de la Recherche Scientifique, 1981), 298–300. Johansen does not cast the matter as I have, for he departs, as we will see, from the assumption that a victim of theft would want both his property restituted and the thief punished by amputation. This assumption is overloaded with the normativity of the state’s role as the ultimate prosecutor that possesses its own rights to punish and discipline. In the absence of the apparatus of state and its institutional presence in pre-modernity, the conditioned belief in such rights may have been either thin or virtually absent. For further information, see section IV in this chapter. If not in the creation of rules and legal values, then at least in using these categories in rationalizing the law ex post factum. ʿAbd al-Wahhab b. Ahmad b. ʿAli al-Misri al-Shaʿrani, al-Mizan al-Kubra al-Shaʿraniyya al-Mudkhila li-Jamı¯ʿ Aqwal al-Aʾimma al-Mujtahidin wa-Muqallidihim fı¯ al-Shariʿah al-Muhammadiyya, ed. ʿAbd alWarith Muhammad ʿAli, 2 vols (Beirut: Dar al-Kutub al-ʿilmiyya, 1418 AH/1998 AD), 222. Q. 5:32; ‘He who kills a (human) life … has killed all humankind.’ Muhammad b. Ahmad b. Juzayy, al-Qawanin al-Fiqhiyya, ed. Muhammad Dannawi (Beirut: Dar al-Kutub al-ʿilmiyya, 2006), 255–8. Retaliation, blood-money or forgiveness. Anver M. Emon, ‘H ․ uqu¯q Alla¯ h and H ․ uqu¯q al-ʿIba¯ d: A Legal Heuristic for a Natural Rights Regime’, Islamic Law and Society 13, no. 3 (2006), 325. Further evidence in support of this claim is the general absence of discussion of these ․huqu¯q from us․u¯l al-fiqh works, especially in the parts related to ʿilla and taʿlı¯l. For an instance of the limited use of these ․huqu¯q in debating issues of us․u¯l, see al-Amidi, Ihkam, II, 331–3. It is also plausible to argue that legal reasoning leads to the classification of legal 79

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33

34 35 36

37 38 39 40 41 42

43 4 4 45 46 47 48 49 50 51 52 53 54 55

issues in terms of these ․huqu¯q but the categorization of ․huqu¯q itself cannot, on its own, be utilized to conduct legal reasoning in the fullness of its process. Evidence in support of the mostly descriptive (as opposed to prescriptive) nature of ․huqu¯q is represented in the manner in which the madha¯ hib differed in classifying and understanding these ․huqu¯q, for it is certainly the madha¯ hibs’ general legal principles (which often varied between and among them greatly) that generated the different understandings and classifications of ․huqu¯q, not the other way around. An insightful lead into the debate about the descriptive/prescriptive is Walter E. Young’s review of Behnam Sadeghi’s book, The Logic of Law Making in Islam (Cambridge: Cambridge University Press, 2013), in Journal of the American Oriental Society, 136, no. 1 (2016), 227–30. Thinnest because modernity gives ‘administrative regulation’ a thick ‘Weberian’ definition that was utterly unknown to Muslim jurists and sultans. On the modern administrative state as a ‘bloodless constitutional revolution’, see Gary Lawson, ‘Rise and Rise of the Administrative State’, Harvard Law Review 107 (April 1994), 1231–54. On these themes, see Hallaq, The Impossible State, and Leslie Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003). Johansen, ‘Sacred and Religious Element,’ 299 (emphasis mine). On these implications insofar as the citizen and citizenship are concerned, see Hallaq, The Impossible State, 89–110. The premier elaboration of the concept of negative liberty is of course Isaiah Berlin’s essay ‘Two Concepts of Liberty’, in Liberty: Isaiah Berlin, ed. Henry Hardy (Oxford: Oxford University Press, 2008), 167–217. Berlin’s unqualified fear of positive liberty was so evident that he left this concept sorely underdeveloped (pp. 178–81), though sufficiently provocative as to expose the entanglements of negative liberty with capitalism and political economy of the liberal state. See also Charles Taylor, ‘What’s Wrong with Negative Freedom?’, in The Idea of Liberty: Essays in Honor of Isaiah Berlin, ed. Alan Ryan (Oxford: Oxford University Press, 1979), 175–93. This theme potentially constitutes a fertile research interest that remains entirely neglected, but one that deserves far more attention and investment than the nearly useless but nationalistic interests in such questions as, say, the ‘origins of Islamic law’. Johansen, ‘Sacred and Religious Element’, 299. See Miriam Hoexter, ‘H ․ uqu¯q Alla¯ h and H ․ uqu¯q al-ʿIba¯ d as Reflected in the Waq f Institution,’ Jerusalem Studies in Arabic and Islam, 19 (1995), especially at 136–7. Hallaq, Sharı¯ʿa, 142–6, and especially 402. See the concluding section in this chapter. Abu al-Walid Muhammad b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid, ed. ʿAbd al-­R azzaq al-Mahdi (Beirut: Dar al-Kitab al-ʿArabi, 1424/2004), II, 700. ‘In principle,’ because if the stolen object is retrievable, the restitution of the object as well as the ․hadd penalty become both required (ajmaʿu¯ʿala¯ akhdhihi minhu idha¯ wujida bi-ʿaynihi). Ibid, 700–1. For a general but useful account, see Emon, ‘H ․ uqu¯q Allah,’ 367–72. See the Introduction to Shaʿrani’s Al-Mizan al-Kubra, especially I, 11. Ibid., II, 228: ‘al-taghlı¯․z ʿala¯ al-sa¯ riq bi-wuju¯b al-ghurm in ka¯ na mu¯sirran bi-khila¯ fi al-muʿsir, fa-khuffifa ʿanhu li-anna lahu ra¯ ʾih․at ʿudhr li-ma¯ ʿindahu min al-fa¯ qa wa-l-h․a¯ ja.’ Johansen, ‘Sacred and Religious Element’, 299 (emphasis mine). Ibid., 301. Ibid. Hallaq, The Impossible State, 68. Johansen, ‘Sacred and Religious Element’, 301. Emon, ‘H ․ uqu¯q Alla¯ h’, 381–2. See also section III in this chapter. See n. 34. See Hallaq, The Impossible State, ch. 4. As, for instance, in the case of imprisonment for non-payment of pecuniary debts. Al-Shatibi, Muwafaqat, 233.

Select bibliography and further reading Amidi, ʿAli b. Muhammad Sayf al-Din al-. Al-Ihkam fi Usul al-Ahkam. Ed. ʿAbd al-Razzaq ʿAfifi, 4 vols. Riyadh: Dar Sumayʿi, 2003. Emon, Anver M. ‘H ․ uqu¯q Alla¯ h and H ․ uqu¯q al-ʿiba¯ d: A Legal Heuristic for a Natural Rights Regime’, Islamic Law and Society, 13, no. 3 (2006). 80

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Hallaq, Wael. Sharı¯ʿa: Theory, Practice, Transformations. Cambridge: Cambridge University Press, 2009. Hoexter, Miriam. ‘H ․ uqu¯q Alla¯ h and H ․ uqu¯q al-ʿiba¯d as Reflected in the Waqf Institution’. Jerusalem Studies in Arabic and Islam, 19 (1995). Ibn ʿAbd al-Salam, ʿIzz al-Din. Al-Qawaʿid al-Kubra al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam. Eds. Nazih Hammad and ʿUthman Damiriyya, 2 vols. Damascus: Dar al-Qalam, 2000. Ibn Juzayy, Muhammad b. Ahmad. Al-Qawanin al-Fiqhiyya. Ed. Muhammad Dannawi. Beirut: Dar al-Kutub al-ʿIlmiyya, 2006. Ibn Rushd, Abu al-Walid Muhammad. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid. Ed. ʿAbd al-Razzaq al-Mahdi. Beirut: Dar al-Kitab al-ʿArabi, 1424 AH/2004 AD. Johansen, Baber. ‘Sacred and Religious Element in Hanafi Law – Function and Limits of the Absolute Character of Government Authority’. In Islam et Politique au Maghreb. Ed. E. Gelner and J.-C. Vatin. Paris: Centre National de la Recherche Scientifique, 1981. Qarafi, Ahmad b. Idris al-. Al-Furuq aw Anwar al-Buruq fi Anwaʾ al-Furuq. Ed. Khalil Mansur, 4 vols. Beirut: Dar al-Kutub al-ʿIlmiyya, 1998. Shaʿrani, ʿAbd al-Wahhab b. Ahmad b. ʿAli al-Misri al-. Al-Mizan al-Kubra al-Shaʿraniyya al-Mudkhila li-Jamiʿ Aqwal al-Aʾimma al-Mujtahidin wa-Muqallidihim fı¯ al-Shariʿah al-Muhammadiyya. Ed. ʿAbd alWarith Muhammad ʿAli, 2 vols. Beirut: Dar al-Kutub al-ʿIlmiyya, 1418 AH/1998 AD. Shatibi, Abu Is-haq al-. Al-Muwafaqat fi Usul al-Ahkam. Ed. Muhammad Muhyi al-Din ʿAbd al-Hamid, 4 vols. Cairo: Maktabat M. ʿAli Subayh, 1970. Zarkashi, Abu ʿAbdullah Badr al-Din al-. Al-Manthur fi al-Qawaʿid. Ed. Muhammad Ismaʿil, 2 vols. Beirut: Dar al-Kutub al-ʿIlmiyya, 1421 AH/2000 AD.

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3 Balancing this world and the next Obligation in Islamic law and jurisprudence Omar Farahat

The concept of legal obligation is as ubiquitous as it is puzzling. It is hardly contentious that a legal system should aim to impose and ensure the fulfilment of obligations. This is an aspect of law making and enforcement that legal subjects experience routinely. Yet, what obligation consists of, what its imposition, breach or satisfaction exactly mean, are all matters that generate significant conceptual confusion and disagreement.1 The concept of obligation in Islamic law and jurisprudence is no exception to this. Whereas the idea that legal subjects are bound in various manners by the prescriptions of the Sharı¯ʿa is hardly problematic, how to conceive of this legal and moral bond is a much less straightforward matter. In Western jurisprudence, the idea of legal obligation has received a wide array of explanations ranging from the command of the social order,2 social pressure generated by widespread ­recognition,3 and the duty to perform a course of action determined by the law to be in accordance with the common good.4 In the discipline of principles of Islamic jurisprudence (us․u¯l al-fiqh), obligation or compulsoriness (wuju¯b) is typically conceived as one of five standard degrees of normativity that also include recommendation (nadb), permission (iba¯․ha), reprehension (kara¯ ha) and prohibition (manʿ). In classical us․u¯l literature, which presupposes the need for divine revelation for the determination of the normative status of actions, those five degrees are determined by jurists on the basis of various revealed indicants (adilla) through the use of a range of methods that the discipline of us․u¯l al-fiqh elaborates at length. In this essay, I will argue that the rise of obligation in Islamic legal thought is the result of the balancing of considerations pertaining to divine authority and the practicality of human this-worldly needs. The general underlying principle of the rise of legal obligation in Islamic jurisprudence is, unsurprisingly, one that stems from divine authority. It is by God’s design and commandment that certain actions come to have particular moral and normative values. This principle leaves the door open for different understandings of how this divine determination is made: either strictly through revelation, or by endowing the natural order with normative value. Within this overarching scheme of obligation, we find that a broad permission is granted to humans to shape and create obligations vis-à-vis one another in matters pertaining to their financial and familial dealings through unilateral or mutual expressions of will. Whereas direct divine injunctions often operate as the broader limit of what may be legitimately contracted among legal subjects, we note that the vast majority of obligations 82

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with which treatises of substantive law are concerned are ones that arise from free expressions of will, including contracts, oaths, donations, among others. Conversely, outside of the strict realm of worship, direct divine commandments mainly intervene to impose broad prohibitions that represent the ‘outer’ limits of contractual freedom. Ultimately, we can understand legal obligation in Islamic jurisprudence as the outcome of an interplay between considerations of faithfulness to revelation, and the practical imperatives of human concrete interests. By advancing this framework for the understanding of legal obligation, we will be able to rethink some of the assumptions that appear in the contemporary study of Islamic jurisprudence. The reliance on divine revelation and treatment of obligation as part of a range of assessments has often resulted in what I take to be anachronistic understandings. One of those explanations consists of viewing obligation (wuju¯b) as properly ‘legal’ as opposed to recommendation (nadb), which is supposedly merely ‘ethical’.5 As we will see, both the ­ethical and the normative or ‘legal’ sides of those five degrees of assessment were inextricably intertwined in the way they were conceived by classical Muslim jurists. A second anachronistic categorization consists in seeing obligations related to worship (ʿiba¯ da¯ t) as distinctly private, as opposed to transactional obligations (muʿa¯ mala¯ t) which, by contrast, are public and therefore properly belonging to a legal system.6 I will argue in this chapter that the primary conceptual distinction between worship and transaction rested in the manner in which the obligation arose and the place of those acts in a larger understanding of human action, rather than just the private or public nature of the act. This distinction highlights an important characteristic of the Islamic law of obligations, namely the authority that human consent has in the production of binding duties. Declarations of intent, including mutual ones such as contracts, or unilateral such as oaths, produce binding obligations in largely the same manner that divine pronouncements do. It becomes clear from this discussion that the ‘command of the sovereign’ model of explanation of obligations does not fit the image conveyed to us in classical treatises of Islamic jurisprudence.7 I will argue that obligation was seen primarily as a reason for action among many, and that the possibility of reward or punishment was not particularly central to this understanding. Rather, classical jurisprudents started from a given theory of action that viewed humans as actively engaged in choice-making at each instant of their conscious existence, and that sharʿı¯ obligations (i.e. obligations drawn from divine revelation) came to provide reasons for agents to act in one way rather than the other. This theory of obligation permeates all distinctions between obligation, recommendation, worship and transaction, and provides a more robust framework for understanding those distinctions as they were produced within the classical tradition. These claims will be made in three sections. In the first section, we will discuss the concept of obligation as it is formulated as part of a network of related ideas in the classical theory of us․u¯l al-fiqh. In the second section, we will examine the different explanations given to the worship–transaction distinction. In the third and final section, we will look at some examples of each of these types and study how they were conceived and explained in treatises of substantive law ( fiqh).

The concept of obligation in classical jurisprudence In this section, I will advance a framework for the conceptualization of obligation in Islamic jurisprudence. It will be shown that, while divine determination of norms and values is the primary and fundamental condition for the rise of legal obligation, the imposition of obligation did not correspond to a strict model of sovereign command backed by punishment. 83

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Rather, as we shall see, obligations were primarily seen as reasons or interventions that serve to make one possible course of action more preponderant (ra¯ jih ․) than others. The idea of ­reason-giving as preponderance meant that punishment, for many jurists, was not decisive in the definition of obligation. Furthermore, the deontic function of reason-giving was seen as closely linked to the moral value of the action, even if jurists vehemently disagreed on whether or not this moral value can be conceived of independently of divine speech. The imposition of obligation in Islamic jurisprudence is typically conceived as a dual parallel process. On the one hand, a pronouncement (h ․ukm) has to be made in relation to the normal status of the performance of a given action or abstention.8 This pronouncement or assessment applies to that type of action in relation to all legal subjects in a particular set of circumstances. On the other hand, a determination has to be made in relation to the mental conditions of a given agent to decide whether he or she is capable of bearing obligations ­(taklı¯f ) in relation to all action-specific pronouncements (ah ․ka¯ m) taken together. In other words, the subject-matter of taklı¯f is the condition of a particular agent in relation to all actions in general, whereas the subject-matter of ․hukm is the status of a particular action or abstention in relation to all mentally capable legal subjects in general. This bipartite framework features in classical us․u¯l al-fiqh as prominently as the juristic attempts to define discipline itself, which typically come in the opening lines of us․u¯l treatises.9 For example, Ab¯u H ․ a¯ mid al-Ghaza¯ lı¯ (d. 505/1111) defined Islamic jurisprudence as the science of ‘knowledge of revealed judgments (al-ah․ka¯ m al-sharʿiyya) associated with the actions of legally capable subjects (al-tha¯ bita li-afʿa¯ l al-mukallafı¯n)’.10 We can see in this definition that the ․hukm-taklı¯ f dichotomy runs as deep as the conception of Islamic jurisprudence itself. The normative status of action is viewed as a characterization that attaches to a type of action or abstention by virtue of divine speech.11 This revelation-centric view of obligation involved a correspondence between values and norms. Actions are good, for an Ashʿari like al-Ghazali, to the extent that they have been demanded by divine revelation, and actions properly considered as firmly obligatory (wa¯ jib) are a sub-category of all such actions that are considered good. The same is true of matters regarding which revelation commands abstention: they are evil by definition, and a subset of those actions is firmly prohibited (h․ara¯ m). The inextricable link between the good and evil character of actions (h․usn wa-qubh․), and their characterization as obligatory, prohibited, or otherwise, seems to have been widely accepted by scholars of different trends of thought. For example, Muʿtazilis, such as Abu al-Husayn al-Basri (d. 436/1044), maintained that the values of actions can be determined independently of revelation by observation of certain natural properties, yet they agreed with their opponents that the status of actions as obligatory or prohibited followed by necessity from such evaluations.12 Unlike contemporary legal theory, therefore, where a certain conception of moral value may or may not be seen to coincide with what is deemed legally obligatory,13 the conceptual inextricability of obligation and moral goodness was not a matter of significant disagreement in Islamic jurisprudence. Importantly, this correspondence between value and norm permeated the conceptualization of various degrees of normativity of actions without any conceptual distinction between the properly legal and the purely moral as some modern authors have suggested.14 Al-Ghazali conceives of the standard five-part categorization of actions as corresponding to three basic types of norm-generating divine speech: demanding action (iqtid․a¯ ʾ al-fiʿl), demanding abstention (iqtid․a¯ ͗ al-tark) and granting the option to either commit or omit the action (al-takhyı¯r bayna al-fiʿl wa-l-tark).15 This categorization, in al-Ghazali’s thought, follows the view that no assessment can be made of any action without divine revelation, and that any normative status must be conferred by divine speech. This 84

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is a position that was not shared by all jurists, many of whom argued that actions were permissible before revelation.16 Aside from the disagreement on the normative status of actions before or without revelation, the main point for our purposes is that wuju¯b, among other assessments, was defined in terms of enjoinment through divine revelation. This corresponds to the first characteristic of imposition of obligation with which we are concerned. Obligation results from some divine determination, either by endowing acts with intrinsic values, or by indicating those norms through revelation. The assertion that the obligatory nature of an action follows from a divine injunction may appear to correspond to a command-of-a-sovereign model of obligation. According to this model, obligation would be the result of the expression of will of a sovereign, and the fulfilment of obligation would follow from the need to avoid the threatened consequences. This conception of legal obligation was famously attacked by H. L. A. Hart in The Concept of Law, where he argued that many of the ‘internal’ features of a modern legal system, such as the authority granted to individuals to create their own obligations wilfully, contradict such view.17 Hart was of the view that it was social pressure stemming from a broad recognition of the authority of a legal system that created obligation, not the command of a sovereign. Hart’s modification of the classical positivistic account of legal obligation came under recent scrutiny, notably by F. Schauer, who argued that the avoidance of the threat of coercion is indeed an accurate account of the formation of legal obligation in a modern legal system.18 While the theocentric nature of the formation of obligation in Islamic jurisprudence may suggest that it more clearly accords with a command-of-a-sovereign conception of obligation, it in fact does not. In his discussion of the ‘definition of the obligatory (h ․add al-wa¯ jib)’, al-Ghazali explained that there are a number of possible ways in which one can conceive of obligation. Saying that the obligatory is ‘that which is associated with obligation’ is clearly unhelpful, since it does not explain what obligation is. Another possibility is to say that ‘the obligatory is that for which one is rewarded and for the omission of which one is punished’.19 Other definitions include ‘that which one may not intentionally omit’, ‘that which renders the legal subject a disobedient (ʿa¯․siyan) in case of omission’ and ‘that the omission of which leads to blame from a legal standpoint’.20 Al-Ghazali neither objects nor adopts any of those views on obligation. He appears to dismiss them as unfit as proper definitions, yet not entirely inaccurate statements of what it means for something to be obligatory. To reach a proper definition of obligation, he argued, one must look at the core of the thing being studied. Obligation, he explained, is one of the attributes that are attached to actions (ʿawa¯ rid․ al-afʿa¯ l). The view of obligation as an attribute that is attached to actions was also shared by al-Basri.21 Other types of attributes of action include their degree of difficulty, whether they can be known, acquired, invented, among other forms.22 Obligation is, also, an attribute of action, but one that relates exclusively to its status that follows from divine revelation (nisbatiha¯ ila¯ khit․ab al-sharʿ faqat․). In relation to their attributes that follow from divine speech, actions can be divided into three categories: 1) actions in relation to which revelation grants legal subjects the option (takhyı¯r) to commit or omit them; 2) actions regarding which commission should be more likely (tarajjah․a) than omission; 3) actions regarding which omission should be more likely than commission.23 This tripartite classification reveals a number of important things about the conceptualization of obligation in al-Ghazali’s jurisprudence. First, as we have already seen, the default status of action is to be free from obligation. For al-Ghazali, this pertains to all actions before revelation, which are devoid of ․hukm altogether. Second, human action is portrayed as an exercise in the weighing of options: at any given moment in the life of a legally capable person, they are faced with reasons to commit or omit any range of actions that are available to them. The effect of the enjoinment (iqtid․a¯ ʾ) of action or omission by 85

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divine revelation is the preponderance (tarjı¯․h) of commission over omission or the reverse, as the case may be. Divine revelation does not merely promise reward and punishment as a means of norm-making, but gives reasons for the believers to give more weight to some actions rather than others in the process of practical reasoning.24 In spite of fundamental differences in the way they conceptualized the rise of moral value, al-Basri largely agreed with al-Ghazali’s classification of actions, while maintaining that good and evil properties were prior to the formation of obligation and prohibition.25 The rise of revealed obligation as reason-giving, therefore, does not fully accord with the view of obligation as command of a sovereign backed by a threat of punishment. The enjoinment that leads to preponderance of commission or omission, which is the process that creates obligation in al-Ghazali’s view, relies on revelation’s power in advancing truths about the world, its origin, and the meaning of moral action. The mere enjoinment or solicitation of action through divine speech is sufficient to give the faithful a reason to commit the action. In attempting to distinguish between actions that are preponderant (ra¯ jih․) but not fully obligatory (i.e. nadb) and fully fledged obligations (wa¯ jib), some jurisprudents resorted to the idea of the possibility of other-worldly punishment, although they rarely identified obligation itself with the need to avoid punishment. Others conceptualized obligation as ‘the elimination of the possibility of committing the opposite’.26 Al-Ghazali argued that what separates the merely preponderant from the specifically obligatory is the ‘feeling of [the possibility of ] punishment’ that arises from revelation.27 It is not the promise or threat of punishment, but only the inner conviction that punishment may occur in case of omission that distinguishes a firmly obligatory action from one that is enjoined but not required in the proper sense. Al-Ghazali did not advance the promise or threat of punishment as a condition of obligation because he maintained that God cannot be bound by any promise or obligation. If God decided to release all sinners from punishment, that would be fully just.28 But in holding that the sensation of the possibility of punishment is a condition of obligation, al-Ghazali departed from some of his illustrious predecessors, such as the Abu Bakr al-Baqillani (d. 403/1013), who argued that divine command alone is sufficient to create obligation without the need for any reference to punishment.29 Those subtle disagreements notwithstanding, it is clear that the threat of punishment was not as central to classical Islamic jurisprudence as it was for the ‘hard’ positivists’ conceptions of obligation.

ʿIba¯da¯t and muʿa¯mala¯t: a framework for benefit and obedience In the previous section, we saw that obligation was broadly understood as an assessment of a particular act made by divine determination and intended to make the performance of this act preponderant over other courses of action. The image of an authoritarian top-down imposition of duty does not adequately capture this conception of obligation. This image becomes even less applicable once we examine the range of considerations that are seen to underlie obligations in Islamic legal thought. We will see in this section that each case of legal assessment of an act typically involved a balancing of considerations pertaining to immediate gain in this world and potential gain in the next. The intricate balancing of considerations manifested itself in the delegation of duty-imposition to the free expression of human will in cases that involve immediate gain or worldly interest. This exercise in articulation of interests can be most clearly seen in the conceptualization of acts of worship as opposed to transactional dealings. One of the most widespread distinctions in the substantive areas of Islamic law consists in dividing the body of practical norms between norms of worship (ʿiba¯ da¯ t) and norms 86

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of transaction (muʿa¯ mala¯ t). The distinction is frequently invoked in modern scholarship to suggest a certain separation between the private and public domains in Islamic law, and, going even further, to suggest that there was a distinction between the ‘legal’ matters in the proper sense, and purely spiritual and subjective matters, which would be of little or no legal relevance.30 In that sense, the ʿiba¯ da¯ t/muʿa¯ mala¯ t distinction becomes a helpful tool for the compartmentalization of the Islamic legal tradition in a manner that suits modern legal presumptions about the public as opposed to private spheres.31 We will see that classifying the body of legal obligations produced in the substantive fields of Islamic law was seen by some of the classical jurists as one that rests on a large number of similarities and overlaps between those two categories, and not in any sense a sharp distinction between two clearly different types of obligation. Generally speaking, explanations of the distinction revolved around the degree of human dependence and interaction they involve, the types of benefit and consideration that they entail, and whether the justifications of those norms are mostly focused on this-worldly or other-worldly considerations. Conceived this way, the distinction was of primary importance in relation to determining the kind of juristic presumption that applies in relation to the assessment of one or the other. For inter-personal transactions, it was widely believed that whichever customary form worldly dealings may take, they are to be presumed legitimate. Conversely, actions of strictly devotional nature that do not aim to achieve any clear immediate benefit by worldly standards are to be presumed prohibited (h․ara¯ m) or at least without assessment (al-tawqı¯f fi al-ʿiba¯ da¯ t). In his al-Qawaʿid al-Kubra, also tellingly titled Qawaʿid al-Ahkam fi Islah al-Anam (The Principles of Legal Norms in [the Achievement of ] Benefit for Mankind), Al-ʿIzz b. ʿAbd al-Salam (d. 660/1262) offers a conceptualization of the ʿiba¯ da¯ t-muʿa¯ mala¯ t distinction that rests primarily on the idea of benefit (mas․lah․a). As the title of the treatise indicates, this was a part of a general framework of needs and benefits that, Ibn ʿAbd al-Salam argued, underlies the whole edifice of legal obligations. For Ibn ʿAbd al-Salam, the need for regulation of human interactions by divine law stems from the fact that ‘God Most Exalted created humans and made some dependent on others (ah․waja baʿd․ahum ila¯ baʿd ․) so that each group of people would look after the other.’32 He proceeded to divide humans according to age, social class, and sex, to illustrate the interdependence of all those categories on one another. In the end, the mutual care and responsibility (qiya¯ m) for one another leads to the realization of benefits (mas․a¯ lih․) and avoidance of harm (dafʿ mafa¯ sid) either in this life and next, or in one rather than the other. An important observation that must be made here is that the worship–transaction distinction does not rest on the type of consideration that follows from one or the other. In Ibn ʿAbd al-Salam’s thought, both forms of obligation can lead to either this-worldly or other-worldly benefits.33 Acts of worship are not purely obligatory for other-worldly reasons, and social transactions are not purely obligatory for this-worldly ones. Rather, the distinction is based on the type of interaction that the obligatory act entails. In acts of worship, mutual dependence and social intercourse are not primary or predominant features. We will see in the following paragraphs that the distinction is not nearly as sharp as many modern studies make it to be, and that it was primarily used for conceptual clarity and convenience. The frequent entwinement of acts of inter-personal transaction with acts of worship was also evoked by Ibn Taymiyya (d. 728/1328) in the context of his defense of the view that transactional dealings should follow the norms and customs of their time and place and, therefore, should be considered permissible in principle in their customary form. In al-Qawaʿid al-Nuraniyya, Ibn Taymiyya offered a broad and radical view of the fundamental 87

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permissibility of all contractual matters whether of a marital or commercial in nature.34 For him, contracts can be concluded according to any set of formalities and conditions that may be customarily prevalent, and we should assume that the applicable customs are valid unless otherwise indicated by revelation. His reasoning in this respect is telling, and overlaps with Ibn ʿAbd al-Salam’s idea that benefits underlie obligations. Ibn Taymiyya’s first argument in support of the broad permissibility of contractual dealings stems from a reading of Qurʾanic statements that, according to him, reveal that only mutual consent (tara¯․d¯ı ) and satisfaction (t․¯ı b al-nafs) were required by revelation as necessary for such transactions. 35 It would follow that whichever customary conditions may be taken by any given community to indicate mutual consent should be accepted by the jurists. Given that, for the most part, divine revelation does not specify the nature and conditions of such dealings, they should follow entirely the applicable local customs. More pertinent to our purposes, Ibn Taymiyya conceived of the ʿiba¯ da¯ t-muʿa¯ mala¯ t distinction in a manner similar to Ibn ʿAbd al-Salam: the first, i.e. ʿiba¯ da¯ t, mostly pertain to benefits in the hereafter, whereas the second, i.e. muʿa¯ mala¯ t, is designed to realize benefits in this world.36 For Ibn Taymiyya, this foregrounds the famous maxim that obligations of worship must be limited to those imposed explicitly by revelation (al-ʿiba¯ da¯ t allatı¯ awjabaha¯ Allah aw ah․abbaha¯ la tathbutu illa¯ bi-l-sharʿ). For some other jurists, this meant that we should suspend judgement with regards to acts of worship (tawqı¯f ). This is, in part, an epistemological matter: our knowledge of the hereafter is limited to revelation, and therefore we should limit ourselves to it when it comes to worship. Transactional dealings, by contrast, are meant to foster human every-day customary affairs, and therefore must be presumed permissible unless there is a clear provision to the contrary (such as the prohibition of riba¯ , discussed below).37 The types and degrees of social interactions that make up those customary dealings were detailed by Ibn ʿAbd al-Salam. The first type of social interaction that generates obligation stems from the need of people of lower status to those of higher status (ih․tiya¯ j al-as․a¯ ghir ila¯ al-aka¯ bir). This includes the needs for a head of state, regional rulers, judges, legal representatives, parents, and guardians.38 This type of dependence generates several obligations of political and matrimonial nature, such as the ruler and judge’s obligations to impose justice and ensure that the powerful and the corrupt do not abuse the vulnerable. Similarly, without legal guardianship and representation in family and financial matters, the benefits of forming a family and the division of wealth among its members would be lost. Conversely, the general legal subjects are in need of each other for the realization of all ordinary worldly needs, such as the production and exchange of a wide variety of goods and services. The economic and material welfare of the community, including the ruling classes, would be damaged without the daily diligent work of the masses, which, therefore, must be regulated in an equitable manner by the law. In the same manner, it is necessary for the law to regulate transactions stemming from ‘the mutual dependence of equals’ (ih․tiya¯ j al-nuz ․ara¯ ͗ li-l-nuz ․ara¯ʾ). The general permissibility granted by divine law (al-sharʿ) to exchanges of movable and immovable goods and properties of all kinds was necessary to prevent the ‘destruction of the world’ (hala¯ k al-ʿa¯ lam), since voluntary and fortuitous conferral of rights are extremely rare and therefore God’s law allowed and regulated most types of exchanges in order to preserve life and property.39 Besides classifying the benefits stemming from the formulation of various types of obligation according to the classes of people and their interdependence, Ibn ʿAbd al-Salam explained that some of the benefits pertain to this life (al-dunya¯ ), while others pertain to the next (al-a¯ khira). This broad benefit-based distinction was also acknowledged by Ibn Taymiyya, who divided obligations into those that pertain to ‘the betterment of the faith’ (is․la¯ h 88

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al-dı¯n) and to those that relate to immediate needs (h ․a¯ ja).40 The basic set of needs and benefits related strictly to this life centres on considerations that are necessary for human survival and well-being. Those are the necessities (al-d․aru¯riyya¯ t) which constitute the basic and most important set of benefits to be sought by legal regulation. Whatever is absolutely necessary for human life on earth constitutes a ․daru¯rı¯ matter, and anything that extends beyond that, depending on its nature and value, will be classified as either a need (h․a¯ ja), or a superfluous luxury (tatimma¯ t wa-takmila¯ t).41 Benefits achieved in the afterlife are simply the rewards that follow from the obedience to God, through the fulfilment of revelation’s obligations and recommendations. In addition, acts of worship have the effect of glorifying God, knowing Him and being in awe of Him and trustful of His will. These are all, Ibn ʿAbd al-Salam argues, superior to any rewards one may obtain in the afterlife. Benefits pertaining to this world (mas․a¯ lih․ al-dunya¯ ), by contrast, are those that the necessities and needs of subsistence impose, as explained above. Once again, we see that the avoidance of punishment was not central to the definition of obligation that emerges from Ibn ʿAbd al-Salam’s analysis of worship and transaction. The distinction between those two types of benefits does not reflect a worship–transaction dichotomy in an exact manner, but largely underlies the entire scheme of legal obligations, since this scheme rests entirely on the various needs and benefits that humans may obtain. As Ibn ʿAbd al-Salam argued, all imposed duties stem from human interests in this world and the next.42 Nothing humans do can benefit or harm God, and thus all their actions, worship included, should be aimed at the achievement of benefit and avoidance of harm. As we saw, the ‘other-worldly’ benefits of worship are in large part obtained in this world: the recognition and glorification of God and quitting one’s obsession with this world. Whereas obedience is meant to entail reward, and disobedience should result in punishment, there is no definite causality to this order of things. Ibn ʿAbd al-Salam explained that ‘God has pre-existing knowledge of the fact that some matters follow others, but none of those causes necessitate their effects’. Rather, ‘God alone ensures that effects follow their causes, punishments follow infractions, and rewards follow acts of obedience. None of those things leads to their effects, but everything depends on God.’ Ibn ʿAbd al-Salam then brings this line of reasoning to its conclusion: ‘if God punished [someone] without any unbelief or disobedience (kufr wa-ʿis․ya¯ n) He would be just and equitable, and if He rewarded without any obedience or belief He would be a generous benefactor.’43 We saw that human benefit and improvement, whether in concrete or spiritual matters, was the general guiding principle for all imposed legal duties according to Ibn ʿAbd al-Salam’s framework. The distinction between the two groups of obligation (ʿiba¯ da¯ t, muʿa¯ mala¯ t) is defined in relation to the fulfilment of particular benefits. Some obligations are acts of ‘pure worship’ (ʿiba¯ da¯ t mah․․da). Those are the actions that are exclusively designed to bring forth benefits limited to the next life. Others are acts of worship that are designed to bring benefits both in this world and the next. Among this second type, some are predominantly focused on the afterlife such as prayer (salat), others are predominantly related to this world such as almstaxes (zakat).44 It should be noted that Ibn ʿAbd al-Salam gives no example of the first type, which supposedly only brings other-worldly benefits. Transactions are similarly divided into those that pertain predominantly to this-worldly considerations, such as sales (bayʿa¯ t) and leases (ija¯ ra¯ t), and those predominantly focused on considerations of the afterlife. Some transactions combine this-worldly and other-worldly benefits and others by their nature grant the agent the option to choose between one or the other type of benefit.45 As we can see, for Ibn ʿAbd al-Salam, the division between this-worldly and other-worldly considerations is not at all decisive in conceiving of the distinction between ʿiba¯ da¯ t and 89

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muʿa¯ mala¯ t, since obligations in both categories generally tend to include some form of combination of the two benefits. A notable distinction is that ʿiba¯ da¯ t can theoretically pertain exclusively to the afterlife. It would seem, therefore, that the distinction pertains primarily to the way the obligation arises, and only secondarily to the nature of the action performed. Acts of worship are imposed as obligations directly through the text of revelation, whereas transactions require a certain form of consent or expression of individual or reciprocal will in order for obligations to arise. Similarly, acts that primarily constitute worship tend to have an individual nature and can be validly performed in a solitary or collective fashion, whereas transactions appear to require some form of social interaction for their formulation and performance. A distinctive feature of muʿa¯ mala¯ t is that they consist of an exchange, which must comprise at least two legal acts (ʿiwad․ayn). If one of the prongs of this exchange is waived, then the legal act remains hypothetical, but it would be inaccurate to describe the transaction as purely unilateral. Defined as an exchange, muʿa¯ mala¯ t can thus be divided as we saw above into those that partially or fully seek to attain rewards in the afterlife, and those that are entirely focused on this worldly benefit. Reward in the next world can be sought in the context of an exchange primarily by foregoing one’s side of the exchange wilfully with the intent of pleasing God. Much like rituals and worship, therefore, intent is key in transactional exchanges in determining what constitutes an act of devotion (t․a¯ʿa) and what is essentially a utilitarian transaction. In all cases, ‘muʿa¯ malat are means for the realization of benefits in this world and next, and to avoid harm in both’.46 Just as all legal subjects fall into particular categories that define their state and manner of dependence on one another, acts of devotion incorporated within transactional schemes are not all equal from a moral standpoint. It is laudable to forfeit one’s side of any transaction for the sake of rapprochement to God (qurba¯ ), but in doing so it would be better to prioritize the poor over the rich, the devout over the sinners, family members in need over foreigners, and people of knowledge over people of wealth.47 Once we take into account the wide variety of human classes and types of needs and forms of interdependence that emerge from them, we begin to see each individual transaction as a diverse interplay of various sorts of considerations depending on the parties’ intent and their approach to the transaction. It is precisely this interplay that underlies the process of formation of obligation in classical Islamic legal thought, a conception in which the ʿiba¯ da¯ t-muʿa¯ mala¯ t distinction serves primarily as a helpful conceptual tool rather than a sharp epistemological division.

The range of obligations in classical fiqh We saw in the previous two sections that the concept of legal obligation in some works of classical Islamic legal theory was the meeting point of a number of fundamental considerations. The formation of legal obligation was seen as the result of a double determination. The first pertains to the mental capabilities of the legal subject, the second to the status of commission or omission of a particular action in a set of given circumstances. Obligations are seen as reasons for action attached to particular situations. As such, they are designed to tip the agency of the believer in favour of the required act. This requirement is itself justified by a range of values that they are deemed to achieve, including benefits that could be obtained immediately in this world or in the hereafter. It has been argued that this converging of various considerations shows that obligation in the Islamic jurisprudential doctrines is quite removed from the idea of obligation as a result of the command of a sovereign. I argued that the ritual–transaction distinction does not indicate any profound difference in type, but rather points to the justification and manner of formulation of some obligations. 90

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In this section, we will take a closer look at some examples of actions that Muslim jurists saw as obligatory and pay particular attention to the manner in which each group comes about, as well as its justification. The sum of actions deemed obligatory, recommended, reprehensible, or prohibited in Islamic law treatises can be divided into categories roughly corresponding to the considerations of benefit outlined in the above section. Some obligations, primarily related to ritual, attach to all legal subjects who fulfil the conditions of capacity, such as prayer (salat), pilgrimage (hajj) and the payment of alms-taxes (zakat). The broad imposition of those actions on all capable legal subjects entails some requirements and thus makes some other actions obligatory by association, such as the requirement of purity before prayer (wud․u¯ʾ). Other obligations are imposed upon the community of believers at large, which means that the obligation would be fulfilled if a group of capable members of the community performed it on behalf of everyone else ( fard․ kifa¯ ya). The most prominent example in fiqh works is jiha¯ d, although there are other types of community obligations, such as the need to establish justice and to pursue knowledge of the law.48 Other forms of regulation in fiqh books mostly pertain to mutual obligations that arise among subjects possessing legal capacity on the basis of their expression of will. It is noteworthy that the majority of fiqh subjects relate to obligations that individuals create at their will, either through unilateral declaration or oath, or through mutual consent in the case of contractual arrangements. Whereas obligations that attach to capable persons just by virtue of their faith and capacity are often conditional upon mere natural processes that indicate time (for prayer and fasting, for example), contractual obligations arise following the declaration of consent of one or more individuals. Following this declaration of consent, some obligations will automatically attach to the parties by virtue of the very nature of the contract, such the husband’s obligation to financially support his wife. Other obligations can be freely determined by the parties’ will if they do not violate any legal provisions.49 General obligations imposed directly upon all Muslims just by virtue of their being Muslims are not numerous. The primary one among those obligations incumbent upon all Muslims of legal capacity (which, in that case, is defined by puberty, bulu¯gh) is prayer (salat). The central importance of the obligation of prayer, and one of the reasons it is the primary and paradigmatic obligation that falls upon all Muslims with no exception, stems from the fact that, in its founding sources, prayer appears to play a crucial role in defining Muslim identity. Prophet Muhammad is reported to have said ‘the covenant among us is prayer; whomever neglects it is an unbeliever (ka¯ fir)’, and on another occasion to have said that ‘nothing stands between a worshiper [of God] and unbelief other than neglect for prayer (tark al-s․ala¯ )’.50 The exact meaning and implications of the link between neglecting prayer and unbelief was a matter of disagreement among interpreters of Prophetic reports, but in all cases it is plain that prayer was from the outset seen as central to Muslimhood both as a matter of personal faith and as a tool of formation of social identity.51 No other obligation can be claimed to befall all legal subjects as broadly and categorically as prayer does. The other major obligations that are primarily of the ‘ritual’ nature, specifically alms-taxes and pilgrimage, unlike prayer, are much more constrained by material conditions that are not directly linked to personal and social identity. For example, in alms-taxes, we see the addition of a number of conditions that must be fulfilled for the obligation to arise: ‘[Muslim jurists] have agreed that [zakat] is incumbent upon any free pubescent Muslim of sound mind with full ownership of the minimum wealth requirement.’ The required minimum of wealth (nis․a¯ b) must remain with the owner for a duration of one hijrı¯ year (h ․awl) for the zakat to be due on that wealth, and is due on certain types of money and property according to specific percentages.52 It is clear, then, that zakat is not nearly as categorical 91

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and unconditional in its imposition on Muslims as prayer is. Furthermore, zakat is a concept through which we can examine the worship–transaction distinction since its status as either of the two types was contested. Ibn Rushd (d. 595/1198) observes that the disagreement on whether zakat is due upon the wealth of minors (s․¯ı gha¯ r) can be explained by the uncertainty on whether it was an act of worship (ʿiba¯ da) or a right (h․aqq) owed to the poor by the rich at large.53 The point Ibn Rushd is making is that rights and obligations of transactional nature can attach to wealth with no regards to the personal circumstances of the owner, whereas obligations of worship, by definition, attach to an individual subject and can only be valid if the person in question fulfils the required expectations of consciousness and mental capacity.54 It is possible to explain this distinction by reference to Ibn ʿAbd al-Salam’s theory of benefit: for a worshipper to obtain the next-worldly benefit of zakat, it has to be done consciously by a worshipping adult. On the other hand, the material benefit enjoyed by the beneficiary of zakat can be achieved regardless of the payer’s age or state of mind. Another issue in which the blurry boundaries of the worship–transaction distinction become manifested concerns the manner in which debt may affect the obligation to pay almstaxes. Again, we see that conceiving of an action as an act of worship or a social transaction affects the manner in which it arises rather than the nature of the act itself. If zakat is an act of worship, the obligation would attach to any person in possession of the minimum required wealth, the same way prayer attaches to any conscious Muslim. If, by contrast, zakat is a social obligation, it would be waived or suspended if the amount of debt reduces a person’s overall wealth below the nis․a¯ b, since in that case repayment of the debt would take precedence over performing other social obligations.55 Significantly, Ibn Rushd refuses to make a clear determination on the nature of the act of paying alms-taxes, but rather falls back on the rationale of obligation: it is a manner of redistribution of wealth. This move, reminiscent of Ibn ʿAbd al-Salam’s reliance on a typology of benefits for the classification of obligation, highlights the inseparability of the notions of worship and social responsibility in the case of zakat. Fasting during the month of Ramadan (s․iya¯ m) is another obligation that is incumbent upon capable Muslims in a categorical manner. Unlike prayer, the obligation to fast can be waived or replaced by another obligation as a result of a broad range of physical conditions. Due to its individual nature, the ‘worship’ nature of fasting and its relation to possible rewards in the next world are quite clear, unlike zakat which is more ostensibly of a hybrid nature. Fasting during the month of Ramadan has been made obligatory by a clear Qurʾanic injunction: ‘fasting has been imposed upon you like it has been imposed upon those before you’.56 The obligation arises merely by the arrival of the month of Ramadan.57 During that month, Muslims are required to abstain from food, drink and intercourse from sunrise to sunset. The main two categories who are permitted to omit fasting during Ramadan are those suffering from illness and those who are travelling. These two licences are provided directly by Qurʾanic injunction.58 The issue of the permission to omit fasting (ift․a¯ r) poses an important question that pertains to the theory of obligation in Islamic jurisprudence: are people permitted not to fast during Ramadan an exception to the rule, or are they simply outside of the domain of the rule altogether? The understanding of how exceptions work, as is the case in contemporary jurisprudence, is crucial to understanding how obligation is imposed.59 This distinction arises in the context of the question of whether it is better to ‘take the licence’ by omitting to fast if one is allowed to do so, or if fasting in spite of the licence would be better. We have previously seen that a typology of moral values is inextricably linked to the conception of obligation. The question here is whether it would be better to perform an obligation that one is licensed 92

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to omit. Ibn Rushd’s reasoning is that, since textual sources are conflicted, we must look at whether a licence is an exception from the norm or a delineation of the scope of obligation. As we saw, obligation here is understood as a judgment (h․ukm). If we understand license as an exception, it would mean that the otherwise applicable ․hukm is suspended by virtue of an additional ․hukm that creates the exception. If we see it as a delineation of the scope of obligation, it would mean that the initial ․hukm does not include those who are travelling or ill in the first place. The correspondence of value or preference (tafd․¯ı l) with the imposition of obligation would mean that, as a general rule, following a ․hukm is preferred to following none. Thus, if the scope of obligation by definition does not include those who are ill or travelling, it would be a laudable or preferable initiative if they fasted nonetheless. If, however, the licence (rukhs․a) is an explicit and specific ․hukm that comes to alter the initial ․hukm, it would be preferable for them to follow the specific ․hukm, that is, the licence.60 The other positive obligation (as opposed to prohibitions) imposed directly by divine injunction upon a segment of individual Muslims is pilgrimage (hajj). Among those obligations that arise independently of an individual expression of will, hajj is perhaps the most explicitly limited in its scope of application, since the Qurʾanic injunction imposing it limits the obligation to those ‘capable of performing it’ (man istat․a¯ ʿa ilayhi sabı¯lan).61 Besides the few obligations imposed directly upon certain segments of individual Muslims through divine declaration, some obligations arise as inevitable conditions of other obligatory actions. Obligations that arise as necessary conditions for the performance of other obligatory actions include actions such as ritual purity (wud․u¯ ͗ ) which is required for prayer, and other forms of purification referred to as ih․ra¯ m, which are necessary for pilgrimage. Obligations imposed upon the community at large include the participation in battle ( jiha¯ d), which is a type of obligation that can be fulfilled by a group of participants on behalf of the rest of the community.62 Obligations that arise through expression of individual will or the exchange of consent come in various forms. A central contractual arrangement that has occupied scholars of Islamic law and received lengthy treatments in their treatises is marriage (nika¯․h). Other contracts commonly regulated by fiqh works include sale (bayʿ), loan (qira¯․d), partnership (sharika), pawn (rahn), donation (hiba), and lease (ija¯ ra). I will deal here briefly with the contract of sale as an example of the dynamics of obligations imposed through divine imperatives and those that arise by expression of will or other willful legal acts. Sales (buyu¯ʿ) are often treated as the primary and most widespread example of transactional exchange. In his Bidayat al-Mujtahid, Ibn Rushd explains that any transaction (muʿa¯ mala) taking the form of an exchange between two parties is either an exchange of real properties or movable properties, or an exchange of a real property for a movable property. Each one of those three types of exchange can be further divided into those in which obligations are immediately due from both parties, or immediate on one and postponed for the other, or postponed for both parties. This makes all reciprocal exchanges divisible into nine categories. Since delayed fulfilment for both parties is prohibited (manhiyyun ʿanhu), that leaves us with six types of exchange, all of which can be referred to as buyu¯ʿ. We can already see that, while these sales can only take place through the exchange of corresponding wills (ʿaqd), there are limits to what the parties may agree upon. We have already seen in the previous section that theorists such as Ibn Taymiyya vehemently defended the principle of contractual freedom on the basis that commercial custom takes precedence in all matters pertaining to earthly interests within the limits prescribed by revelation. Those limits typically manifest themselves as general prohibitions. The broad imperative prohibitions that interfere with the otherwise unhinged contractual freedom fall into two broad categories. Some prohibitions pertain to the illegitimate nature of the object 93

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of contract, others pertain to the deficient nature of the exchange.63 We can see here that Islamic law recognizes a duality of inter-personal relations and claims upon objects, a duality that can be found in civil law theories of obligation. Overriding prohibitions pertaining to the object of exchange have to do with objects deemed ‘impure’ (najis), such as wine (khamr) and ‘living parts’ of pigs (as opposed to hair, for instance). Limitations arising from the imbalanced or unfair nature of the exchange take several forms. The most obvious type of contractual imbalance stems from the concept of riba¯ , which is known in financial arrangements as a prohibition on interest. In sale contracts, the prohibition on riba¯ is understood as a form of unfair burden on one of the parties taking the form of either an unequal exchange of things of the same type (tafa¯․dul) or a delayed and unequal exchange of things of the same type (nasa¯ ʾ).64 These two types are often considered to be two types of riba¯ , with the first referred to as riba¯ al-fad․l or al-tafa¯․dul, and the second riba¯ al-nasa¯ ʾ or al-nası¯ʾa. As with many of the cases of obligation-making in Islamic law, we can see here a juxtaposition of practical and ethical considerations that manifests itself in an articulation of contractual obligations that arise by the meeting of mutual consent with general prohibitions that pertain to matters of general piety.

Conclusion This chapter attempted to offer an analysis of selected theoretical and practical discussions on obligations in some well-known classical Islamic treatises on law and legal theory. As such, it does not offer a comprehensive survey of all available doctrines within the tradition. From this limited and selective analysis, however, we begin to see certain themes that characterize the conception of obligation in Islamic legal thought. The first and most important is the inextricable link between the ideas of compulsoriness and moral value. The marginality of the concept of punishment or coercion in those works can be explained by this close connection with morality. Second, while scholars from different schools of thought differed greatly on whether obligation logically follows from value, or if the reverse is true, it appeared to have been widely accepted that following sharʿı¯ injunctions should promote the betterment of the believer’s destiny either in this world or the next (often both). As such, no sharp separation should be assumed between obligations of ritual type and others of a transactional nature. These did not belong to two different systems of obligation. Rather, they participated in a scheme of reason-giving that was anchored in an understanding of human interests that encompassed existence in both this world and in the afterlife.

Notes 1 On the conceptual complexity of ‘obligation’, John Finnis wrote that ‘Philosophers and moralists find the grammatical substantive form “obligation” convenient for signifying a wide range of notions: that there are things, within our power either to do or not to do, which (whatever we desire) we have to do (but not because we are forced to), or must do, which it is our duty to do, which it is wrong not to do, or shameful not to, which one morally (or legally) ought to do’. John Finnis, Natural Law and Natural Rights (Oxford and New York: Oxford University Press, 2011), 297. 2 Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967), 114. 3 H. L. A Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 167–80. 4 Finnis, Natural Law and Natural Rights, 315. 5 For example, see Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf Al-Din Al-Amidi (Salt Lake City: University of Utah Press, 1992), 350–1. 6 Examples of these approaches are provided in the second section. 7 A theory most famously advanced in John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995), 18–24. 94

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8 The determination or ․hukm in that sense is primarily the pronouncement made by a jurist, a school of law or the community of jurists on a given action in general not concerning a particular legal subject. Case-specific determinations take the form of legal opinions issued in response to a particular question ( fatawa¯ ) or court judgments. The concept of ․hukm involves a degree of complexity shared generally by Islamic jurisprudential concepts inasmuch as it could refer to either God’s determination on a certain matter (h․ukm Allah) or the jurist’s opinion made after proper exertion of intellectual effort (ijtiha¯ d). Ebrahim Moosa suggests that the proper use of ․hukm in jurisprudence refers primarily to the rule in its divine ‘transcendent’ form, and mentions that ․hukm is often more fully referred to as ․hukm Allah. I have not seen ․hukm referred to in this form in classical treatise on jurisprudence, and, in all likelihood, classical jurisprudents primarily used the term to refer to their own imperfect determinations made by engaging with the signs (adilla) of divine revelation. The long and complex process that links the theological concept of divine command to the formulation of a juristic normative proposition is beyond the scope of this chapter. For all purposes, ․hukm here will be a reference to practical determinations made by jurists through engagement with revelation using specific investigative methods. See Ebrahim Moosa, ‘Allegory of the Rule (H ․ ukm): Law as Simulacrum in Islam?’, History of Religions 38, no. 1 (1998): 1–24. Wael Hallaq emphasized the juristic nature of ․hukm by referring to it as a value ‘with which all legal acts must be labelled’. Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh (Cambridge and New York: Cambridge University Press, 1997), 40. 9 In al-Mankhul, Ghazali explained that taklı¯f is ‘derived from “burden” (kulfa) [ … ] and means imposing that which constitutes a hardship’. Abu Bakr al-Baqillani defined imposition of duty (taklı¯f ) as ‘nothing other than the demand (mut․a¯ laba) to refrain from or commit [action], and the existence of reward, punishment [ … ], praise and blame in its regard’. Given that discussions of taklı¯f revolved primarily around the mental conditions of imposition of burden, the concept largely pertained to the legal subject’s capacity. See al-Ghazali, Al-Mankhul min Taʿliqat al-Usul, ed. Muhammad Hasan Hitu (Damascus, 1970), 21. See also Muhammad b. al-Tayyib al-Baqillani, Al-Taqrib wa-l-irshad al-Saghir (Beirut: Muʾassasat al-Risala, 1993), 1:236. Imam al-Haramayn al-Juwayni, Al-Burhan fi Usul al-Fiqh, 2nd edn, Maktabat Imam Al-Haramayn (Cairo: Dar al-Ansar, 1980), 14. 10 Abu Hamid al-Ghazali, Al-Mustasfa min ʿIlm al-Usul (Cairo: al-Maktaba al-Tawfiqiyya, 2010), 8. 11 Ibid., 80. 12 Muhammad b. ʿAli al-Basri, Kitab al-Muʿtamad fi Usul al-Fiqh, ed. Muhammad Bakr, Hasan Hanafi and Muhammad Hamidullah (Damascus: al-Maʿhad al-ʿIlmi al-Faransi li-l-Dirasat al-ʿArabiyya in Damascus, 1964), 8–9. 13 The internal disconnection between the deontic functions of law and ideas of value or reasonableness was noted by scholars including some of the most dedicated naturalists such as John Finnis. In that context, Finnis observed that ‘unlike the informal social practice of promising, the legal system does not allow an unrestricted feedback of such “value” or “policy” considerations from the justificatory level of straightforward practical reasonableness back into the level of practice’. Finnis, Natural Law and Natural Rights, 312. See also H. L. A. Hart’s famous essay, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71, no. 4 (1958): 593–629. 14 For example, see Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill 1999), 35–6. 15 Al-Ghazali, Al-Mustasfa, 94. 16 A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (Albany, NY: State University of New York Press, 1995). 17 Hart, The Concept of Law, 38–41. 18 Frederick F. Schauer, The Force of Law (Cambridge, MA: Harvard University Press, 2015). 19 Al-Ghazali, Al-Mustasfa, 39. 20 Ibid. 21 Al-Basri, Kitab al-Muʿtamad fi Usul al-Fiqh, 8. 22 Al-Ghazali, Al-Mustas․fa, 40. 23 Ibid. 24 For an analysis of reasons for action as an element of practical reasoning, see Joseph Raz, From Normativity to Responsibility (Oxford and New York: Oxford University Press, 2011), 85–106. 25 Al-Basri, Kitab al-Muʿtamad fi Usul al-Fiqh, 9. 26 For example, Fakhr al-Din Muhammad b. ʿUmar al-Razi, Al-Mahsul fi ʿIlm al-Usul, ed. Muhammad ʿAbd al-Qadir ʿAta, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1999), 1:178. 95

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32 33 34 35 36 37 38 39 40 41 42 43

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Al-Ghazali, Al-Mustas․fa, 40. Ibid., 94. Ibid., 95. For example, Knut Vikør writes that ‘the term Sharı¯ʿah describes both Muslim practices that relate to law in Western understanding and others that do not. It is better understood as the Muslim conception of a life in conformity with God’s will. Thus it includes both the rules that regulate the Muslim’s relationship to God, such as the ritual practices of worship (prayer, fasting, pilgrimage, etc.) and the rules that regulate the worshippers’ relationships to one another and to society. The first are called ʿiba¯ da¯ t (“acts of worship”), the latter muʿa¯ mala¯ t (“transactions”). The divide largely coincides with the definition of legal as “concerning cases that are brought before a court of law”, which applies to the muʿa¯ mala¯ t’. Knut S. Vikør, ‘Sharı¯ʿah’. In The Oxford Encyclopedia of Islam and Politics. Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/article/opr/t342/ e0026 (accessed 24 July 2018). The assumption of a sharp divide between ʿibada¯ t and muʿa¯ mala¯ t is particularly convenient in the context of attempts to directly incorporate classical Islamic legal doctrines into modern secularized legal systems. For example, see Alfitri, ‘Expanding A Formal Role for Islamic Law in the Indonesian Legal System: The Case of Mu’Amalat’, Journal of Law and Religion 23, no. 1 (2007): 249–70. ʿIzz al-Din ʿAbd al-ʿAziz b. ʿAbd al-Salam, Al-Qawaʿid al-Kubra: al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam, ed. Nazih Hammadi and ʿUthman Damariyya, vol. 2 (Damascus: Dar al-Qalam, 2000), 120. Ibid. Ahmad b. ʿAbd al-Halim b. Taymiyya, al-Qawaʿid al-Nuraniyya al-Fiqhiyya, ed. Muhammad Hamid al-Fiqi (Lahore: Idarat Turjuman al-Sunnah, 1982), 127–34. Ibid., 133. Ibid., 134. Ibid. Ibn ʿAbd al-Salam, al-Qawaʿid al-Kubra, 2:120. Ibid., 2:121–3. Ibn Taymiyya, al-Qawaʿid al-Nuraniyya al-Fiqhiyya, 134. Ibn ʿAbd al-Salam, al-Qawaʿid al-Kubra, 2:123. Ibid., 2:126. Ibid., 2:125–6. This principle corresponds to what Khaled Abou El Fadl referred to as the separation of temporal accountability from divine accountability. See Khaled Abou El Fadl, ‘The Place of Ethical Obligations in Islamic Law’, UCLA Journal of Islamic and Near Eastern Law 4 (2004–2005): 1–40. Ibn ʿAbd al-Salam, al-Qawaʿid al-Kubra, 2:125–6. Ibid. Ibid. Ibid., 2:133. For an extended discussion of jihad in the form of fiqh prescriptions, see Ibn Jarir al-Tabari, AlTabari’s Book of Jihad: A Translation from the Original Arabic (Lewiston, NY: Edwin Mellen Press, 2007). For a historical account of the evolution of the idea of mutual promises in the Near East and Islamic law, see Nabil Saleh, ‘Origins of the Sanctity of Contracts in Islamic Law’, Arab Law Quarterly 13, no. 3 (1998): 252–64. Abu al-Walid b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Beirut: Dar Ibn Hazm, 1999), 79. For salat as a ‘pillar of religion’, see Wael Hallaq, Sharı¯ʿa: Theory, Practice, Transformations (­Cambridge and New York: Cambridge University Press, 2009), 225–30. Ibn Rushd, Bidayat, 204. A similar debate arose with regards to ․sadaqat al-fitr, which combined characteristics of both an imposition on property (muʿna) and an act of worship (ʿiba¯ da). See Johansen, Contingency in a Sacred Law, 133. With regards to zakat, Johansen characterizes its position in Hanafi law as a ‘financial act of devotion’ (ʿiba¯ da ma¯ liyya), since it is an act of worship that consists of a transfer of property to another person. This hybrid nature meant that requirements of sanity and legal capacity more generally applied as prerequisites to the payer of zakat. Ibid., 137–8. Ibn Rushd, Bidayat, 205.

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55 56 57 58 59 60 61 62 63 64

Ibid., 205–6. Q 2:183. Ibn Rushd, Bidayat, 238. Ibid., 246. For example, see Frederick Schauer, ‘Exceptions’, The University of Chicago Law Review 58, no. 3 (1991): 871–99. Ibn Rushd, Bidayat, 247. Ibid., 266. For the Qurʾanic injunction, see Q 3:94. For obligations of worship in general, see Hallaq, Sharı¯ʿa, 224–38. Ibn Rushd, Bidayat, 496. Ibid., 499.

Select bibliography and further reading Sources in Arabic Basri, Muhammad b. ʿAli al-. Al-Muʿtamad fi usul al-fiqh. Ed. Muhammad Bakr, Hasan Hanafi and Muhammad Hamidullah (Damascus: al-Maʿhad al-ʿIlmi al-Faransi lil-Dirasat al-ʿArabiyya bi-­ Dimashq, 1964). Ghazali, Abu Hamid al-. Al-Mustasfa min ʿIlm al-Usul (Cairo: al-Maktabah al-Tawfliqiyya, 2010). Ibn ʿAbd al-Salam, ʿIzz al-Din ʿAbd al-ʿAziz. Al-Qawaʿid al-Kubra: al-Mawsum bi Qawaʿid al-Ahkam fi Islah al-Anam. Ed. Nazih Hammadi and Uthman Damariyyah, 2 vols (Damascus: Dar al-Qalam, 2000). Ibn Rushd, Abu al-Walid. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Beirut: Dar Ibn Hazm, 1999). Ibn Taymiyya, Ahmad b. ʿAbd al-Halim. Al-Qawaʿid al-Nuraniyya al-Fiqhiyya. Ed. Muhammad Hamid al-Fiqi (Lahore: Idarat Turjuman al-Sunnah, 1982).

Sources in English El Fadl, Khaled Abou. ‘The Place of Ethical Obligations in Islamic Law’. UCLA Journal of Islamic and Near Eastern Law 4 (2004–2005): 1–40. Alfitri. ‘Expanding A Formal Role for Islamic Law in the Indonesian Legal System: The Case of Muʿamalat’. Journal of Law and Religion 23, no. 1 (2007): 249–70. Finnis, John. Natural Law and Natural Rights (Oxford and New York: Oxford University Press, 2011). Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunnı¯ Us․u¯l Al-Fiqh (Cambridge and New York: Cambridge University Press, 1997). Hallaq, Wael B. Sharı¯ʿa: Theory, Practice, Transformations (Cambridge and New York: Cambridge University Press, 2009). Hart, H. L. A. The Concept of Law (Oxford: Clarendon Press, 1961). Johansen, Baber. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill 1999). Kelsen, Hans. Pure Theory of Law (Berkeley: University of California Press, 1967).

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4 Divine command ethics in the Islamic legal tradition Mariam al-Attar

This chapter aims to understand the ways in which revelation and divine injunctions have been conceived and implemented by Muslim scholars, who sought to establish norms for deciding the right action and conduct. The main question that will be tackled in this chapter is whether the Islamic ethico-legal tradition is fully compatible with Divine Command Theory (henceforth DCT) or is it compatible with some kind of Natural Law Theory (NLT)? I argue that any attempt to identify the nature of Islamic law is problematic, regardless of the fact that many Western and Muslim scholars seem to hold the view that Islamic law is fully compatible with DCT in ethics. The first section of this chapter investigates the meaning and the implications of DCT associated, in the Islamic tradition, with the Ashʿarite school of theology. The second section attempts to shed light on some conceptual and historical background. It briefly traces the development of the controversy over the meaning of moral values and the use of reason in deriving ethico-legal judgments from the early beginnings until the rise of Ashʿarism. In the third section, special attention is given to what I choose to call ‘Common Morality Theory’ (CMT), associated with the Muʿtazili school of thought and the early Muslim jurists ( ­fuqaha¯ ʿ). The fourth section focuses on ‘Divine Purposes Theory’ commonly known as ­Maqa¯․sid al-Shariʿah. I argue that the last theory is closer to common morality than to, regardless of the fact that most of the proponents of the maqa¯․sid explicitly endorsed DCT. Thus, the main concern of the last part of this chapter is the position of those who belonged to the Ashʿarites, yet in their fiqh and legal theory deviated from the maxims of a classical DCT established by Abu¯ H ․ asan al-Ashʿarı¯ (d. 324/936). The significance of Maqa¯․sid al-Sharı¯ʿah or the Divine Purposes Theory lies in the fact that many contemporary Muslim reformers rely on this theory in their efforts to reform Islamic law.

1  Divine command ethics vs. natural law theories Divine command ethics rests on the assumption that the foundations of morality are divine commands that are usually expressed in the imperative form of speech in a religious text. However, whether the imperative form of speech indicates obligation, recommendation or 98

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permission was an issue that sparked a good deal of discussion among early Muslim scholars, many of whom held the view that when a speech is uttered in a form of a command, it does not necessarily indicate that what is commanded is obligatory. Divine Command Theory is not an Islamic theory to start with, it is a theory that was named and propagated in other religious traditions, and is now popular among the philosophers who call themselves divine command theorists and who mainly belong to the Protestant branch of Christianity. It is a meta-ethical theory that interprets morality as obedience to commands. Different names are given to emphasize different aspects of the same theory. It is sometimes called ‘ethical voluntarism’, ‘theological voluntarism’ or ‘divine subjectivism’. Recently, John Hare, a contemporary philosopher and divine command theorist, defended the thesis that ‘what makes something morally obligatory is that God commands it, and what makes something morally wrong is that God commands us not to do it’.1 In his book God’s Command, he does not confine himself to the discussion of DCT in Christianity. Hare also dedicates a chapter for three medieval Islamic thinkers, namely al-Ashʿari, ʿAbd al-Jabbar and al-­Maturidi, and a chapter for Judaism. Interestingly, he commends Jews and Muslims for holding divine law closer to the surface and says that Christians can learn from them. On the other hand, three authors – a Muslim, a Jew and a Christian – have co-­authored a book2 that discusses natural law in the three monotheistic religious traditions: Islam, J­udaism and Christianity. Indeed, there are different versions of ‘Divine Command theories’ and different versions of ‘Natural Law theories’. The distinction between a DCT and an NLT is based on the assumption that the former is not necessarily compatible with common sense morality, while the latter is compatible with morality. All the proponents of DCT accept the view that morality depends on religion and that God is the ultimate basis of morality. In NLT, there seems to be a place for reason and common morality. I would say that the main difference between the two trends that are deeply rooted in all religious traditions is that believers in natural law tend to appeal to reason and common morality and to the present epistemological framework in case of disagreement. Also, they might invoke science in support of their arguments. Whereas the advocates of DCT refer mainly to the scriptures. Of course any disagreement among people who belong to different religious traditions would then be difficult to solve, as each would appeal to his/her own sacred text rather than common morality, which basically denotes shared moral values and principles. In this chapter DCT is taken to denote that moral values (good and evil) have no meaning apart from divine commands and prohibitions. Divine commands constitute the ontological and the epistemological basis of morality. A clear implication of this theory is that divine commands are arbitrary and not purposeful. They define goodness and thus override any reasonable human moral judgement. Contemporary divine command theorists are attempting to construct theories that would avoid these implications, thus their theories are sometimes called ‘modified Divine Command Theories’. In Christianity DCT is usually contrasted with natural law, which seems to be a concept that emerged from ancient Christian medieval contexts. Concepts taken out of context can generate misunderstanding and confusion unless they are explicated and carefully interpreted in ways that makes sense to new audiences. Usually the proponents of natural law assert and the proponents of positive law deny the existence of a necessary connection between law and ethics. For a natural law theorist morality is essential for the validity of the law. The doctrine of natural law has been subject to waves of criticism, yet it continues to appeal to those who believe that law needs to be grounded in the moral life. The key concept of natural law is that ‘the law is something that stands apart from human beings as a part of the natural order of the universe and morality is a matter of following that law’.3 99

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The concept of natural law has its roots in ancient Greek philosophy. There is a general agreement that the Stoics were the first to systematize the concept of natural law. For the Stoics natural law was natural conformability of human nature to the rational order of the universe as a whole.4 Cicero, a representative of Stoic philosophy, defines law as being ‘the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite’.5 It seems that Cicero traces natural law to God as the supreme law giver, or more specifically to the mind and reason of God.6 The most prominent medieval theologian associated with natural law tradition in Christianity is Thomas Aquinas who used Aristotle’s concept of nature in his formulation of natural law. It seems that according to both Aquinas and Aristotle nature and human nature have a purposive existence.7 Aquinas developed his own version of natural law that was compatible with Christianity. For Augustine long before Aquinas, John Scotus after Aquinas, William of Ockham and many other Christian theologians, the fall of man that followed his original sin had affected human nature, thus that nature could not provide a pattern for human laws. Absolute submission to divine will was the only rule for human beings. For the Christian theologians who are usually considered the proponents of DCT, it was the divine will rather than divine wisdom and reason that ruled the universe.8 Yet, according to Aquinas, the basic principles of natural law are self-evident, universal and with accordance with human primordial nature: ‘The concept of natural law influenced the concepts and the development of law, ethics, politics and political thoughts and theories of the state and philosophers throughout the middle ages up to the modern time’.9 However, modern interpretations of the theory transferred the ancient doctrine. Modern theorists suggested that natural law originated not in heaven but in man himself. Grotius and Hobbes stand at the head of that school of natural law which tried to construct the whole edifice of law by rational deduction from a fictitious state of nature followed by a social contract.10 Hugo Grotius (d. 1645) held that the law of nature would be valid even if there were no God behind them,11 which, of course does not mean that he was not a Christian believer. In Islam the question that is intimately related to DCT is whether revealed law establishes good and evil or merely indicates it (al-sharʿ muthabbit am mubayyin). If it is the divine commands, usually referred to as law (al-sharʿ), that establishes what is good or evil, then no morality is perceived without revelation. Yet if commands only indicate what is good and what is evil, then good and evil exist independently and thus, in principle, could be known without revelation. The proponents of ethical voluntarism or DCT in Islam are usually considered to be the Ashʿarites, whereas the proponents of an alternative of theory, which I will call ‘Common Morality Theory’ (CMT) rather than ‘objective morality’ or ‘Natural Law Theory’ (NLT) are usually considered to be the Muʿtazilites.12 I prefer to call the ethical theory of the Muʿtazilites CMT rather than NLT, for two reasons. The first is that they emphasized principles that are shared with all human beings like honesty and justice and considered those principles necessarily known by every mature human being, thus they believed in common morality. Second, they established that the ultimate aim of religion and ethics is peoples’ well-being. There is no appeal to nature in a sense that one can find in medieval Christian theology, where the concept of natural law seems to be built upon an understanding of nature derived from Aristotle. So, in CMT it is not nature that acts purposefully, but human beings who have intentions, purposes or aims. Divine Command Theory was consistently maintained by al-Ashʿarı¯ and the early Ashʿarites,13 though there seem to be only few Muslims who consistently adhered to the theory, accepting all its necessary implications.

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2  Contextual backgrounds and necessary clarifications ‘Islamic law’ is the widely accepted translation for both fiqh and Sharı¯ʿah, yet this is a misleading translation, as it blurs the line between what is human and what is divine, leading to the erroneous belief that human-made laws are divine. As many modern and contemporary scholars have pointed out, Sharı¯ʿah actually means a way or a method and not law. It designates the moral principles and rules that guide human beings in their life in order to thrive in this world and to achieve the ultimate salvation in the afterworld. Whereas ‘fiqh’ literally means ‘understanding’ and it denotes that significant part of Islamic heritage and scholarship that is dedicated to the understanding of the divine message and unveils its normative role in shaping human conduct. By definition, fiqh is human-made, contingent and subject to error. Sharı¯ʿah, on the other hand, is the eternal, immutable and unchanging way of goodness and justice that no fallible human being can claim to have fully grasped. Nevertheless, religious scholars, especially the us․u¯liyyu¯n, those scholars concerned with establishing the methods, foundations and fundamental principles for belief and practice, namely us․u¯l al-dı¯n (kala¯ m) and us․u¯l al-fiqh, definitely aimed at coming closer to understanding the Sharı¯ʿah and implementing their understanding in solving various individual, social, economic, political and also philosophical problems. Both disciplines emerged and were established after various discussions and disputes related to belief and practice led to the development of different doctrines that needed to be systematically articulated. For example the first school of us․u¯l al-dı¯n or ʿIlm al-kala¯ m emerged long after issues and doctrines related to free will and predestination, the fate of the person who committed a grave major sin and other issues were discussed by Muslims who belonged to early politico-religious factions like the Kharijites, the Murjiʾites, the Qadarites and the Jabrites. Also, issues related to the principles of jurisprudence or legal theory have been discussed long before the advent of al-Sha¯ fiʿı¯ (d. 204/820), who is usually considered the founder of us․u¯l al-fiqh, not to mention the fact that laws and regulations were articulated before the establishment of the discipline of us․u¯l al-fiqh, sometimes translated as the ‘Theory of Law’. We often read in classical and modern literature that attempts to intertwine kala¯ m and fiqh started as early as the beginning of the third/ninth century with Abu¯ Bakr al-As․am (d. 200/816),14 Ibra¯ hı¯m al-Naz․․z a¯ m (d. between 220/835 and 230/845) and Abu¯ Hudhayl al-ʿAlla¯ f (d. 235/850),15 which is also the time when the us․u¯l al-fiqh started emerging as a discipline of its own. However, throughout the later centuries, the relation between the two disciplines, namely kala¯ m and us․u¯l al-fiqh, was disputed. Some were eager to eliminate all issues related to kala¯ m from the works of fiqh and us․u¯l al-fiqh on the ground that issues of kala¯ m were imposed upon the field of fiqh, as held by some H ․ anbalite jurists, while others only wished to distinguish between the two fields for methodological and practical reasons, like the Muʿtazilite Abu¯ al-H ․ usayn al-Bas․ri (d. 436/1044).16 ʿIlm al-kala¯ m focused on understanding God, His attributes, His actions, His relation to human beings and His intention behind sending messengers, in addition to other issues that are also related to theology. However, kala¯ m was not confined to theological issues. It literally means speech or talk and is variously translated by different scholars as scholastic, dialectical, speculative or philosophical theology. It is the discipline that was developed within the circles formed by Muslims interested in gaining a deeper understanding of their world and their religion. Yet it seems that kala¯ m was not developed only to satisfy the intellectual curiosity of some Muslim scholars, but also to defend their religion and to counter some doctrines with clear political implication, such as the doctrine of predestination that was sometimes used to justify the brutality and injustice of those who held political power.17 The issue was discussed by the Qadarites before the emergence of the Muʿtazilite school of kala¯ m in the 101

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mid-second/eighth century. The name Muʿtazilite which means those who separated themselves, most probably refers to a group of pious scholars who distanced themselves from political conflicts and disagreements and dedicated their lives to the study of religion.18 In their discussion they mainly employed reason, rather than textual evidence, in order to convince their opponents who often belonged to different religions. It was within the discipline of kala¯ m that issues pertaining to belief (ʿaqı¯da) as opposed to issues related to practice were articulated. Nevertheless, works of kala¯ m usually contain discussions pertaining to the concerns of fiqh and works of fiqh often contain sections that confirm doctrines derived from kala¯ m and are related to the fiqhı¯ normative enterprise. It could not have been a coincidence that the Muʿtazilite emerged from Bas․ra, one of the Iraqi cities which were associated with the emergence of the ahl al-raʾy who relied on reason in deriving legal judgements. Ahl al-raʾy, a term rather awkwardly translated to ‘rationalists’, are usually opposed to the traditionalists (ahl al-H ․ adı¯th), who favoured the reliance on textual proof, even when it could be only a H ․ adı¯th ah․a¯ d with a limited number of transmitters in its chain of narrators. In a book written by Abu¯ Hila¯ l al-ʿAskarı¯, called ‘al-Awa¯ ʾil’, literally, ‘The Firsts’, it is mentioned that one of the founders of the Muʿtazilite was the first to discuss issues related to us․u¯l al-fiqh. The Muʿtazilite had a great impact on the emergence of us․u¯l al-fiqh.19 The term raʾy was used to indicate a sound opinion. However, the challenge posed by the traditionalists, who emphasized the value and the priority of the prophetic tradition over reasoned opinion eventually led to degrading the status and the value of reasonable judgement changing its meaning from discretionary reasoning to ‘fallible human thought’.20 Many decisions of early legal authorities were based on forms of reasoning that did not follow a strict methodology that would link the judgment arrived at to an explicit Qurʾanic injunction or an example from the prophetic tradition. Peoples’ custom (ʿurf ) that did not contradict the clear teachings of the Qurʾan was invoked in addition to preference (istih ․sa¯ n and istis․lah․). What all these extra textual methodologies had in common is that they were based on human reason rather than revelation, while at the same time were compatible with revelation. The tendency to invoke such concepts in the process of determining law co-existed with the increasing reliance on prophetic tradition and the development of a discipline of ʿilm al-H ․ adı¯th that was considered crucial for eliminating differences in opinion and customs, and maintaining consistency and uniformity in deriving legal rulings across the Muslim world. This tendency was supported by al-Sha¯ fiʿı¯, who is often considered to be the founder of legal theory or us․u¯l al-fiqh. Al-Sha¯ fiʿı¯ himself arrived in Iraq in around 184/800, where he encountered the Hanafis, associated with al-raʾy and also the Muʿtazilite. The engagement with the Iraqis must have had a deep impact on al-Sha¯ fiʿı¯.21 The Hanafis had sought to systematize the edifice of law by subjecting its individual rulings to the test of raʾy, while al-Sha¯ fiʿı¯, according to El-Shamsy,22 went deeper by striving to systematize the methodological basis of the law as a whole. While al-Shafiʿi emerged as a non-Muʿtazilite, he most certainly did not belong to the camp of the traditionalists (ahl al-H ․ adı¯th ) as a traditionalist he would have betrayed his comrades when he insisted on the essential role of qiya¯ s (reasoning by analogy) in law.23 His importance was in the establishment of a methodology for deriving laws that elevated H ․ adı¯th, even the ah․a¯ d H ․ adı¯th, over reason, in an attempt to reduce or rule out differences in opinion. The most significant early Sha¯ fiʿite jurist, who seems to have articulated and spread Shafiʿism, was Ibn Surayj (d. 306/918). None of his works seem to have survived, yet we know that his students were the most prominent Shafiʿites of the first half of the fourth/ tenth century. Ibn Surayj held that the unaided reason (al-ʿaql) can discern the good and the detestability of some things. 24 Al-Sayrafi (d. 330/942) and al-Qaffal al-Shashi al-Kabir 102

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(d. 365/976), among other Shafiʿites, all held positions that were later correctly seen as endorsing elements of the Muʿtazilite ethical doctrines. 25 Thus, regardless of the fact that al-Shafiʿi insisted on grounding legal judgments in textual evidence, there is no reason for attributing the view that values are ultimately established by God’s command to al-Shafiʿi. Indeed, the work of his early followers suggests the opposite. Therefore, I think there is no good reason for considering al-Shafiʿi’s work to fall in the domain of divine commands ethics as argued by John Kelsay, 26 because, referring to a text in a case of disagreement on a legal matter is one thing, while holding that moral values exclusively depend on scripture is a another. After all, there is no legal tradition that is not ultimately based on a certain text that is considered authoritative by the community that adheres to it. Also, most of the early jurists who accepted the qiya¯ s methodology, which implies that there is a cause or wisdom behind the prohibition of certain things or acts, must have accepted that humans are able to discern good and bad apart from revelation. It was only later on and after the spread of the Ashʿarite school of kala¯ m that the role of reason in deriving ethico-legal judgments was disputed, and that was primarily for theological and not legal reasons, as will be argued later on. Abu¯ Hasan al-Ashʿari (d. 323/935) was initially a Muʿtazilite, but as he disagreed with them on various issues he dissented. Later he became the eponym of a new school of kala¯ m that did not become influential in the field of law until the time of al-Juwayni (d. 478/1085), who seems to have been the first to establish a juridical method on an Ashʿarite basis.27 Al-­ Juwayni is also generally recognized as the most important figure between the old Ashʿarite tradition and the later one that included al-Ghazali (d. 505/1111) and his successors.

3  Common morality theory (CMT) vs. divine command ethics Sound arguments against ethical voluntarism were articulated by the Muʿtazilites and can be found in al-Mughni, the voluminous book written by ʿAbd al-Jabbar (d. 415/1024), who belonged to the Basran branch of the Muʿtazilites. He held that divine intentions and purposes that lie behind His commands are the same as the ultimate humans’ purposes. Linking human moral exhortations and the ultimate purposes of a rational human being to the ultimate purposes of the divine injunctions, ʿAbd al-Jabbar indicated the importance of interpreting a text in a way that conforms to human purposes and values.28 For ʿAbd al-Jabbar: An adult with sound mind necessarily knows the evilness of transgression (qubh․ al-z ․ulm), the evilness of being ungrateful to a benefactor (kufr al-niʿma), and the evilness of lying if it is not intended to bring about benefit or to repel harm. One also knows the goodness of compassion and giving (al-ih ․sa¯ n wa-l-tafad․․dul). One also knows that thanking a benefactor and returning a trust when asked for and being just are all considered obligations.29 Thus obligations (al-taka¯ lı¯f ) imposed by God presuppose moral truth and do not create morality. Law and ethics are often considered to be one and the same thing in Islam. However, a sharp distinction, even a cleavage between ethics and law, developed in Islamic legal tradition. Indeed, the existence of ․hiyal (legal trickery) literature can serve as a proof that law and ethics are not one and the same.30 One can also say that there is a distinction between law and Shariʿah, with Shariʿah being more of a system of morality than law. Theoretically, the jurists acknowledged that the specific injunctions of the Qurʾan are meant to satisfy the 103

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principles of justice, goodness, forgiveness and so on. These principles constitute the rationes legis (ʿilal al-ah ․ka¯ m) of the Qurʾanic injunctions, and the whole theory of qiya¯ s (analogical reasoning) is based on this premise. In fact the later Ashʿarite jurists have appealed to a theory that would eventually emphasize the principles of equity, justice and goodness when they formulated the maqa¯․sid paradigm. Yet the problem is that apparently the maqa¯․sid theory, which is an Islamic ethical theory, was never used to infer laws or to check the appropriateness of some existing rules. Though, when these maqa¯․sid or objectives of the Shariʿah can be identified, ‘it is not only permissible to pursue them, but it is our duty to make an effort to identify and implement them’.31 It has already been mentioned that the proponents of ethical voluntarism or DCT in Islam are usually considered to be the Ashʿarites, whereas the proponents of CMT are usually considered to be the Muʿtazilites. Yet, such a simple classification into proponents of DCT and proponents of CMT is not based on an inquiry into the nature of the legal reasoning, but seems to be based on the explicit assertions of the jurists who adopted the theological and moral doctrines articulated in the works of the Ashʿarite kala¯ m. Also, it is worth mentioning that, for instance, some Muʿtazilites, like ʿAbd al-Jabbar, and Ashʿarites, like al-Juwayni and al-Ghazali, belonged to the same legal school of Shafiʿism, while holding opposing meta-ethical presuppositions. Thus such a classification oversimplifies the subject, especially when we are attempting to investigate the place and the impact of ‘DCT’ on legal tradition. Muʿtazilite ethical theory, as articulated by the 11th-century Muslim thinker ʿAbd al-­ Jabbar, is an option available for theistic morality in Islam. However, divine command ethics and Muʿtazilite ethics do not exhaust all the ethical theories in Islamic thought. The theory that prevailed in Islam assumed that divine commands are purposeful. Richard Frank rightly stated that Ethical Voluntarism, advocated by al-Ashʿari, implies that ‘it is fundamentally and ultimately impossible to explain God’s commands in terms of any purpose or end’.32 The concept of ‘purposeful commands’ contradicts the basic assumption of any consistent classical DCT. Ethical Voluntarism is arbitrary by definition, while any command that is based on purposes, or guided by reason, is by definition not arbitrary. A morality that demands people to adhere to divine injunctions, when those are understood to be purposeful and appeal to human reason, cannot be called ‘Ethical Voluntarism’ nor ‘Divine Command Theory’. The concept of a command itself implies clarity, unambiguity and urgency and demands immediate obedience without any reflection or consideration. However, that there are reasons behind divine commands was clearly presupposed by the scholars who established qiya¯ s as a source of law (us․u¯l al-fiqh). Otherwise no rule could have been derived from another, and no derived judgment could have been considered a valid judgment. Thus, the ultimate ground for any normative judgment in fiqh does not lie in the divine commands themselves, but in the purposes or reasons behind the divine commands. Moral values then are not established by what is commanded or prohibited by God. By His commands and prohibitions He merely indicates normative judgments which are ultimately grounded in moral values. The implied position of most of us․u¯l al-fiqh scholars is analogous to ʿAbd al-Jabbar’s position in maintaining that ‘God is promulgator and not creator of morality’, regardless of the fact that some of them who adhered to the school of al-Ashʿari advocated the opposite. In us․u¯l al-fiqh ‘rationalisation in terms of reasons (ʿilal) and ends is demanded in order that one possesses the rules of the Shariʿah in their generality and knows how to apply them’.33 Rationalisation in terms of reasons and ends contradicts the basic assumptions of Ethical Voluntarism.

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In order to understand the Ashʿarites’ insistence on holding on to theological voluntarism and carefully separating themselves from the Muʿtazilites, even when their views resembled those of the Muʿtazilites, we should understand the basis of the controversy. The Muʿtazilites, in their attempt to understand the world, adopted a methodology that was based on analogy from the observable to the unobservable (qiya¯ s al-gha¯ ʾib ʿala¯ al-sha¯ hid). They raised philosophical questions related to various ethical, epistemological and ontological issues, such as human free will, the nature of moral value, the epistemic grounds for moral obligation and the nature of knowledge. The theories that different branches of the Muʿtazilites developed had social, political and, of course, theological implications. Following their methodology, they applied their reasoning to the divine realm and judged divine actions and His injunctions to be good and just, in a sense that appeals to human understanding. For them it was the divine gift of human reason that can serve for understanding both this world and the divine realm. They were known as the people of unity and justice (ahl al-tawh․¯ı d wa-l-ʿadl) after the two main principles that they considered the most important fundamental principles that capture the spirit and the teachings of Islam. They sought to understand not only the wisdom of the revealed text, but also the wisdom behind creation, and to explain the existence of human and natural evil. The Ashʿaris, who emerged from within the Muʿtazilites, eventually developed different theories and opposed the Muʿtazilites, who were later declared as heretics. The method of reasoning ‘from the observable to the unobservable’ seems to have been reversed. In order to account for divine power and omnipotence, the Ashʿarites maintained that everything including morality is contingent. They denied the role of reason in deriving moral knowledge, and the existence of universal moral principles that can be known by reason. Justice lost its meaning and became nothing more than obedience to divine commands and prohibitions, as understood by those who acquired religious knowledge and status that permitted them to interpret those commands and claim the knowledge of the objectives of divine law. The Muʿtazilite might not have been successful in solving ‘the problem of evil’, which remains a great challenge to theologians in other traditions as well but neither did the Ashʿarites, who thought that they solved it by scarifying the concept of justice and goodness and the concept of common morality and rational obligation. Nevertheless, the Ashʿarites could not deny the fact that people from different traditions do condemn injustice and lying, yet what they denied was applying human reason to the divine realm. They eradicated the mere possibility of humans having moral norms and rational principles in order to protect the divine from any possible attempts of humans reasoning His actions. They condemned any idea that could have possibly led to what they considered a blasphemous compromise of divine omnipotence and absolute freedom. Thus they explained the fact that people from different religions and traditions condemn injustice and lying because of mere habits and customs that have nothing to do with reason, rationality and moral knowledge. Replacing common morality with ʿa¯ da¯ t (habits and customs) and calling people who have certain norms ahl al-ʿa¯ da¯ t and the one who claims to act upon the dictates of ʿaql (reason) to actually be acting according to his ․tabʿ (natural inclinations), was to cut the way on reasoning that might apply human principle and judge divine action as unjust or evil. Evil became nothing but disobedience to divine commands. Thus, moral values shared by human beings were attributed to the concept of habits (ʿa¯ da¯ t) and al-ʿaql, as the instrument of moral judgement, was displaced by al-t․abʿ, or the appetitive self, as also mentioned by Sherman Jackson.34 The concept of al-mas․lah․a (well-being or public interest) articulated by earlier scholars was now based on what they considered to be a divinely ordained mas․lah․a and the true maqa¯․sid (objectives) were now conceived to be divine. But instead of checking and assessing

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previously derived legal judgments in light of those objectives or ultimate values (that they claimed to have been derived from the scripture), these divine purposes were actually used to confirm and support previously derived legal judgments, which were often based on considerations other than clear divine injunctions and sometimes on certain injunctions that actually fitted the purposes and the worldview of those classical scholars and reflected the socio-political conventions of the time.

4  Late Ashʿarites and divine purposes ethics Abu¯ Hamid al-Ghazali (d. 505/1111) has often been considered a representative of extreme divine voluntarism. 35 Also, in his book The Spirit of Islamic Law, Bernard Weiss argued that the theory of al-Maqa¯․sid is a DCT or indeed that it is fully compatible with Ethical Voluntarism, saying that ‘the voluntarism and the intentionalism of Muslim jurists are opposite sides of the same coin. To say that the law is determined by the divine will is to say that law is determined by the divine intent’. 36 Whereas Anver Emon, in his book Islamic Natural Law Theories, considers the theory of al-maqa¯․sid to be a form of NLT, a ‘soft natural law’ theory as opposed to the ‘hard natural law’ of the Muʿtazilite. To my mind, neither of the two views is convincing. Considering the maqa¯․sid theory fully compatible with Ethical Voluntarism seems to ignore the similarities between the concept of al-mas․lah․a as held by the early jurists who did not subscribe to the Ashʿarite moral theology and the concept of al-mas․lah․a that was linked to the purposes of law by the late Ashʿarites. Whereas considering it a kind of NLT requires a clear definition of what one means by natural law. Emon seems to consider a ­n atural law where ‘nature is the link between the divine will and human reason’ and explains that ‘because the empirical world is infused with a divine, purposeful deliberate good, our reasoned conclusions about the empirical good are infused with normative content stemming from the divine creative will. In other words, the “is” becomes the “ought”’.37 The rather ambiguous concept of ‘fusing fact and value’ permeates his book. So, for example, he considers that the term mas․lah․a is applied by al-Ghazali to fuse fact and value in nature. It seems that any attempt to classify the theory of al-maqa¯․sid depends on one’s understanding of what is meant by natural law and what is meant by DCT or Ethical Voluntarism. The early Ashʿarites did not approve of ratiocination (taʿlı¯l) and that is clear from the early discussions in kala¯ m. Ratiocination of divine judgment seem to have been compared to the ratiocination of His action, which was problematic as it could lead to detestable conclusions, that would compromise divine free will and omnipotence. Any attempt to make sense of the world and explain how and why things happen in a certain way rather than another relies on the concept of causality, but there is no reason that explains divine actions in this world and thus no necessary relation between causes and effects. Ratiocination of divine actions and judgments was also the concern of the late Ashʿarites like al-Ghazali, who accepted the occasionalist theory of causation. They disagreed on that with the Muʿtazilites, just as they disagreed on the issue of rational knowledge of good and evil. Al-Ghazali disputed causation in ethics and denied that there are any reasons behind divine commands and prohibitions, just as he disputed causation in the natural world and adopted the doctrine of occasionalism. As noted by many scholars, he based the theory of mas․lah․a and maqa¯․sid on scripture by following inductive reasoning, whereas the Muʿtazilite arrived at similar conclusion by following a deductive way of reasoning. From the divine attribute of wisdom and goodness they would deduce that His rules and regulations must benefit His creation. Al-­Ghazali’s induction of general objectives of law from particular rulings, in principle, could have resulted 106

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in anything, since God is free to do and command anything, which is the essence of Ashʿarite voluntarism. Nevertheless, the doctrine of al-ma¯ qs․id (objectives) was based upon the presumption that divine judgments are founded. Divine judgments, according to the theory of al-maqa¯․sid are to be understood within their framework and ultimate purposes of the Shariʿah, which is preserving certain necessities that have traditionally included religion, life, intellect, progeny and property, often called al-kulliya¯ t al-khamsa (the five universal principles). By introducing the term muna¯ sib (appropriate) to describe the relationship between individual rulings and the maqa¯․sid, al-Ghaza¯ lı¯ maintained that the objectives of the law promulgate human well-being, while avoiding the Muʿtazilite assertion that the law had to serve human well-being. However, it is appropriate to mention here that the meaning and the understanding of the scriptural rulings that provided the data for al-Ghaza¯ lı¯ inductive reasoning and the formulation of those necessities or objectives themselves reflected the epistemological framework of the time and a specific interpretation of the injunctions found in the Qurʾan and Sunnah. Nevertheless, one could argue that al-Ghaza¯ lı¯ could not have started his induction process without a working hypothesis. Whether that working hypothesis was based upon his observation of nature and the wonders of creation that led him to believe in the teleology in the natural world that was somehow related to teleology in revelation as recently argued by El-Shamsy38 or whether that was based on his familiarity with the previous work on mas․lah ․a, it remains certain that he approached the text with a working hypothesis derived from the legal tradition that endorsed the belief that law serves human well-being and that was definitely established by the Muʿtazilites. It is precisely that working hypothesis that is based on reason and previous knowledge that he obtained from fiqh. Therefore, although the maqa¯․sid theorists claim that the objectives were derived by induction from the texts, those were ultimately derived from their previous acquaintance with the principle of taʿlil and its rational basis. Al-Ghaza¯ lı¯’s theory is a ‘Divine Purposes Theory’, yet it remains closer to the ‘Common Morality Theory’ than to a DCT, since he must have had in mind a working hypothesis to start with, and that working hypothesis is necessarily derived from the common morality which is shared with other people regardless of their claim to the opposite. The five maqa¯․sid that are the ultimate ends of the Shariʿah are values that any society or legal tradition would uphold if it seeks to preserve the society and aims at a flourishing community. Al-Ghaza¯ lı¯ stated that it is impossible that any society (milla min al-milal) or any legal system (shariʿah min alshara¯ ʾiʿ) which aims at the benefit of creation (is․lah․ al-khalq) would not include prohibitions against neglect of and restraint from these five values, and that is why all legal systems prohibit disbelief (kufr), homicide, adultery, theft and intoxication.39 I have argued elsewhere40 that the Ashʿarite theory of good and evil is definitely consistent with the rest of the Ashʿari theories of kala¯ m, but it is not indispensable in the principles of jurisprudence (us․u¯l al-fiqh). Admitting and acknowledging human agency in formulating and establishing the ‘universal necessities’ or maqa¯․sid calls for a non-Ashʿarite ethical foundation that would open the door for ethical reflection on theoretical and practical matters from various perspectives, taking into consideration the advancement of human knowledge. After all, as human beings, we are subject to the laws of humanity that are etched into our very being – these laws are embedded in our cognition and consciousness, and are as stable 107

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and unwavering as the laws of mathematics or the logic that defines material reality. These are laws of rational elements that allow us to have a shared language about justice, ethics, values, happiness, misery and beauty.41 Development of fiqh is related to development of kala¯ m, and kala¯ m needs to engage with science and philosophy in order to move beyond the doctrines developed by thinkers who were genuine and innovative, but at the same time operated within the framework of a world view and epistemology that is quite different from ours. The big questions that they asked should be revisited and the assumptions that they took for granted should be discussed in light of current epistemological position. That might lead to a different interpretation of the relation between human beings and the divine and a fresh reading of the revealed words. The majority of the ʿulamaʾ held that since the realization of the objectives (maqa¯․sid) of the Shariʿah necessitates identification of the cause rational of the ah․ka¯ m, it becomes our duty to discover these in order to be able to pursue the general objectives of the Lawgiver,42 and according to all the jurisprudential schools the purpose of the Shariʿah is to serve the best interests of human beings (tah ․qı¯q mas․a¯ lih․ al-ʿiba¯ d). Put differently, the objective of the law is not to apply technicalities regardless of their consequences, but to achieve the ultimate moral and ethical objectives that represent the essence of Godliness on this earth.43 In order to achieve the ultimate moral objectives, some rules that have an instrumental rather than inherent value need to be assessed. The objectives (maqa¯․sid) of the Shariʿah have been linked to the individual rulings found in the Qurʾan and the Sunnah; and those rulings are thus seen to have instrumental value, while the aims or the objectives have an inherent value. Since the maqa¯․sid were allegedly established by following the induction process, they could not have been used in evaluating the rulings from which they have been derived. Important Qurʾanic values like justice, benevolence and compassion that are not related to particular rules seem to have been disregarded by most of the religious scholars ( fuqaha¯ʾ). ­Justice, benevolence and other values that have inherent rather than instrumental worth are also Qurʾanic principles that presuppose our ability to understand them and make sense of them. However, as we have seen, justice and goodness according to the Ashʿarite moral theology meant nothing but obedience to commands. To my mind, the theory of al-maqa¯․sid, which is an ethical theory that can be used to assess different legal rules, cannot be used unless we first establish it on a non-Ashʿarite basis. Only then might we become able to understand the values and objectives that have inherent value and distinguish them from others that have only instrumental value. Muʿtaz al-Khatib noted that the essence and the foundation of ratiocination (taʿlı¯l) is the principle of rational knowledge of good and evil. He wonders how the maqa¯․sid theory, which is essentially built on the assumption of the validity of taʿlı¯l, can be validated while rejecting its rational foundation.44 Maqa¯․sid al-Shariʿah were never used to derive or assess existing rules, as already mentioned. Thus, one is left to wonder whether what is known as fiqh al-maqa¯․sid as advocated today is actually capable of introducing any change. Al-Khatib suggested a discipline that could be called fiqh al-wasa¯ʾil that would evaluate the appropriateness of the rules that have an instrumental value and their value rests on their ability to properly serve the objectives or the ends. The distinction between means and ends is significant to the development of normative knowledge, and so is the distinction between those rules or judgments that are related to worship and those that intend to regulate social and political life. Al-Khatib noted that classical scholars sometimes confused means and ends. He suggests a criterion that seems to satisfy the fiqhı¯ methodology. According to this criterion, some rules or judgments that are explicitly mentioned in the texts could be considered contingent, as they only have 108

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instrumental value. Building upon the scholarship of significant classical scholars of maqa¯․sid, like al-Shatibi, al-Qarafi and al-ʿIzz b. ʿAbd al-Salam, he concludes that rules that have instrumental value can be changed. Distinguishing between the immutable ends that have inherent value and the changeable means is proposed as a proper methodology for fiqhı¯ ijtiha¯d that could be called the theory of means (al-Wasa¯ʾil) as distinguished from the theory of ends (al-Maqa¯․sid). Al-Khatib provides four restrictions (d․awa¯ bit․) or conditions that should be met in order to consider a mean changeable. The two most important conditions are, first, that the mean can be replaced by a mean that also serves the purpose in the same way or better, and, second, that the rule or a judgment which is considered to be a mean rather than an end or aim is related to a certain tradition (ʿurf ), specific situation or time.45 To my mind, this suggests that not every rule articulated by jurists, even when based on textual evidence, is related to the ultimate aims of the Shariʿah, and that definitely applies to rules that discriminate against women and against non-Muslims. A theory like this seems to build upon the classical fiqhı¯ scholarship and remains faithful to the fiqhı¯ methodology, while possibly allowing for radical change. However, al-Tahir b. ʿAshur, the Tunisian scholar who adopted the maqa¯․sid approach and advocated using the approach for reforming Islamic law, saw no contradiction in holding the principle of equality as an absolute value and confirming judgments and rules according to which men are granted superior positions over women and Muslims over non-Muslims. He appeals to what he calls nature (al-jubbulla) to get out of the contradiction. Accordingly, woman is not equal to man because of her nature and not because of legislation,46 as law confirms the status quo and does not establish reality. Thus the universal values that he upholds become formal and can be used to support different and contradictory positions. Even fiqh al-wasa¯ʾil, proposed by alKhatib, will not lead to reform unless articulated by people who have a good sense of justice and who would take the demands for reform seriously. One cannot be sure whether any of those theories discussed above would provide us with the best answers and solutions that are dearly needed in Muslim communities. After all, the Shiʿi al-ʿAdliyya have endorsed the Muʿtazilite view and acknowledged the role of reason in morality. Yet that did not result in any progress in their fiqh because, in deriving their rules, reason and common morality were not given any role, as recently argued by Ali Reza Bhojani. So, despite the Shiʿi adoption of the same meta-ethical position as the Muʿtazilites, ‘independent judgements of rational morality play little or no role in the actual inference of Shariʿah norms within mainstream contemporary Shiʿı¯ thought’,47 ‘A legal positivism, theoretically associated with the Ashʿarı¯ meta-ethics, in the sense that considerations of legal validity are detached from moral worth, appears as prevalent in Shiʿı¯ fiqh as it does in any other Muslim legal school’.48 Thus, acknowledging human reason and its ability to know good and bad and right and wrong does not necessitate a morally informed law. Nevertheless, the ethical theory of maqa¯․sid, as I have argued above, remains a promising theory that is closer to common morality than Divine Command Theory. And a theory that is closer to common or objective morality can definitely provide a more inclusivist foundation for inter-faith and intra-faith dialogue, as well as for more understanding between religious and non-religious people living in the same communities, sharing similar socio-­ political and economic concerns.

Notes 1 J. Hare, God’s Command (London: Oxford University Press, 2015). 2 Anver M. Emon, Mathew Levering and D. Novak, Natural Law: A Jewish, Christian, and Islamic Trialogue (London: Oxford University Press, 2014). 3 S. Neiburg and R. Duval, Encyclopedia of Ethics (New York: Facts on File Inc., 1999). 109

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4 M. Illathuparampil, ‘Normativity of Nature’, in Is Nature Ever Evil? Religion, Science and Value, ed. W. B. Drees (London and New York: Routledge, 2003), 225–34. 5 K. Haakonssen, ‘Natural Law’, in Encyclopedia of Ethics, ed. L. C. Becker and C. B. Becker (New York and London: Gerland Publishing, 1992), 884–90. 6 H. P. Kainz, Natural Law: An Introduction and Re-examination (Chicago: Open Court, 2004). 7 M. Illathuparampil, ‘Normativity of Nature’. 8 A. Ezzati, Islam and Natural Law (London: ICAS Press, 2002). 9 Ibid., 25. 10 Ibid., 27. 11 K. Haakonssen, ‘Natural Law’. 12 G. F. Hourani, ‘Divine Justice and Human Reason in Muʿtazilite Ethical Theology’, Ethics in Islam, ed. R. Hovannisian (Malibu, CA: Undena Publications, 1985), 58–9. 13 R. M. Frank, ‘Moral Obligation in Classical Muslim Theology’, Journal of Religious Ethics (1983), 186–203. 14 Biographical sources vary on his death date. Some date it at the beginning of the third century, others date it in 225 AH and still others date it 279 AH. 15 A. al-Raysuni, Al-Tajdid al-Usuli: Nahwa Siyagha Tajdidiyya li-ʿIlm Usul al-Fiqh (Herndon, VA: International Institute of Islamic Thought, 2014), 36. 16 Ibid., 41. 17 S. al-Nashshar, Nashʾat al-Fikr al-Falsafi fi al-Islam, vol. 1, 9th edition (Cairo: Dar al-Maʿarif, 1995), 318. 18 Ibid., 378. 19 Ibid., 395. 20 Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005). 21 Ahmed El-Shamsy, The Canonization of Islamic Law – A Social and Intellectual History (Cambridge: Cambridge University Press, 2013), 44. 22 Ibid. 23 Wael Hallaq, ‘Was al-Shafiʿi the Master Architect of Islamic Jurisprudence?’ International Journal of Middle East Studies 25, no. 4 (1993), 587–605. 24 K. A. Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (New York: State University of New York, 1995), 17. 25 Ibid., 18–21. 26 John Kelsay, ‘Divine Command Ethics in Early Islam: Al-Shafi’i and the Problem of Guidance’, The Journal of Religious Ethics 22, no. 1 (1994), 101–26. 27 C. Brockelmann and L. Gardet, ‘al-Djuwaynı¯’, in Encyclopaedia of Islam, ed. P. Bearman, T. Bianquis, C. Bosworth, E. Donzel and W. Heinrichs, 2nd edn (Leiden: Brill, 1960–2005). 28 A. J. al-Asadabadi, Al-Mughni fi Abwab al-Tawhid wa-l-ʿadl, al-Iradah, ed. Mahmud Qasim, vol. 6 (Cairo: Ministry of Public Culture & Education, n.d.) 331. 29 Ibid., 384. 30 F. Rahman, ‘Law and Ethics in Islam’, in Ethics in Islam – Giorgio Levi Della Vida Ninth Conference, ed. R. Hovannisian (Malibu, CA: Undena Publications, 1985), 3–17. 31 M. Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003), 49. 32 R. M. Frank, ‘Moral Obligation in Classical Muslim Theology’, Journal of Religious Ethics 11, no. 2 (1983), 186–203. 33 Ibid. 34 Sherman Jackson, ‘The Alchemy of Domination? Some Ashʿarite Responses to Muʿtazilite Ethics’, International Journal of Middle East Studies 31, no. 2 (1999), 158–201. 35 G. F. Hourani, ‘Divine Justice and Human Reason in Muʿtazilite Ethical Theology’, 59; D. Brown, ‘Islamic Ethics in Comparative Perspective’, The Muslim World 89, no. 2 (1999), 181–92; O. Leaman, A Brief Introduction to Islamic Philosophy (Hoboken, NJ: Blackwell, 1999), 108. 36 B. G. Weiss, The Spirit of Islamic Law (Athens, GA: University of Georgia Press, 1998), 56. 37 A. E. Emon, Islamic Natural Law Theories (London: Oxford University Press, 2010), 21–2. 38 A. El-Shamsy, ‘Al-Ghazali’s Teleology and the Galenic Tradition: Reading the Wisdom in God’s Creation’, in Islam and Rationality: The Impact of al-Ghazali. Papers collected on his 900th Anniversary, ed. F. Griffel, vol. 2 (Leiden: Brill, 2015), 90–112.

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39 A. H. al-Ghazali, Al-Mustasfa min ʿIlm al-Usul, vol. 1 (Beirut: Dar Sader, 1995), 258. 40 Mariam al-Attar, ‘Meta-ethics: A Quest for Epistemological Basis of Morality in Classical Islamic Thought’, Journal of Islamic Ethics (forthcoming). 41 Khaled Abou El-Fadl, ‘The Epistemology of the Truth in Modern Islam’, Philosophy and Social Criticism (2015), 473–86. 42 Kamali, Principles of Islamic Jurisprudence, 49. 43 Khaled Abou El Fadl, The Great Theft, Wrestling Islam from the Extremists (New York: Harper Collins, 2007). 4 4 Muʿtaz al-Khatib, ‘Al-Maqasid wa-ʿIlm al-Usul, Qiraʾah fi al-Nasaq al-Maʿrifi’, Maqasid al-Shariʿah wa-l-Siyaq al-Kawni al-Muʿasir (Ribat: Al-Rabita al-Muhammadiyya lil-ʿulamaʾ, 2013) 41–58. 45 Muʿtaz al-Khatib, ‘Manhajiyat al-Maqasid wa-l-Wasaʾil wa-Atharuha fi al-Ijtihad al-Fiqhi’, Majallat Islamiyyat al-Maʿrifa (2013), 43–78. 46 M. A. ʿAshour, Maqasid al-Shariʿa al-Islamiyya (Amman, Jordan: Dar al-Nafaʾis, 2001), 332–4. 47 A. R. Bhojani, ‘Moral Rationalism and Independent Rationality as a Source of Shariʿah in Shiʿi Usul al-fiqh: In Search of an Adliyya reading of Shariʿah’. (Unpublished dissertation, Durham University, 2013). 48 Ibid., 10.

Select bibliography and further reading El-Fadl, Khaled Abou. ‘The Epistemology of the Truth in Modern Islam’. Philosophy and Social Criticism 41, nos 4–5 (2015): 473–86. Attar, M. al-. Islamic Ethics: Divine Command Theory in Arabo-Islamic Thought (London: Routledge, 2010). Emon, Anver E. Islamic Natural Law Theories (London: Oxford University Press, 2010). Frank, Richard M. ‘Moral Obligation in Classical Muslim Theology’. Journal of Religious Ethics 11, no. 2 (1983): 186–203. Griffel, Frank. ‘The Harmony of Natural Law and Shariʿa in Islamic Theology’. In Shariʿa: Islamic Law in the Contemporary Context, ed. Abbas Amanat and Frank Griffel (Stanford, CA: Stanford University Press, 2007), 39–61. Hare, John. God’s Command (London: Oxford University Press, 2015). Hourani, George F. ‘Divine Justice and Human Reason in Muʿtazilite Ethical Theology’. Ethics in Islam (Malibu, CA: Undena Publications, 1985), 73–83. Hourani, George F. Reason and Tradition in Islamic Ethics (London: Cambridge University Press, 1985). Jackson, Sherman. ‘The Alchemy of Domination? Some Asharite Responses to Mutazilite Ethics’. International Journal of Middle East Studies 31, no. 2 (1999): 158–201. Reinhart, Kevin A. Before Revelation: The Boundaries of Muslim Moral Thought (New York: State University of New York, 1995).

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5 Islamic law and bioethics* Ayman Shabana

Bioethics is a relatively new term that emerged during the second half of the 20th century to signify moral reflection and reasoning in the realm of the life sciences. With the unprecedented advances in biomedical technology many hitherto science fiction fantasies have been turned into real and readily available solutions. Examples include: life-sustaining technologies such as kidney dialysis, organ transplantation, and artificial ventilation; assisted reproductive methods such as artificial insemination, in vitro fertilization, and surrogacy arrangements; cosmetic surgeries; and, most recently, genetic testing as well as genome mapping. As much as these technologies have enhanced human life in immeasurable ways, they have also raised serious ethical questions. Moreover, earlier precedents involving abuses of scientific research in Europe during the Second World War and subsequently in the United States called for clearer and tighter ethical guidelines for the conduct of biomedical research in order to avoid similar mistakes, which have seriously tarnished the image of scientific research and the reputation of the scientific community. Since biomedical research has the potential of causing irreversible damage to human subjects and even to human life on this planet, bioethics was initially envisioned as a science of survival to guard against inadvertent or adverse effects of irresponsible scientific experimentation.1 Over the past few decades bioethics has developed as an interdisciplinary field that draws on insights from the cross-section of the life sciences, humanities and social sciences. In terms of disciplinary pedigree, bioethics extends the well-established field of medical ethics which can be traced back to the emergence of medicine as an organized profession. Bioethics is occasionally used as the synonym of medical ethics, although the latter tends to focus more narrowly on healthcare and medical practice.2 In its broadest conceptualization, however, bioethics includes also, in addition to medical ethics, ethical reflection on the application of biomedical technology as well as the impact of modern technology and lifestyles on the natural environment. Moreover, bioethics, as a type of applied ethics, builds on the classical field of moral philosophy from the Greek tradition into the modern period. Bioethical deliberations often involve the interface of religion, law, and ethics and that is why they commonly entail legal, theological, and moral dimensions. Even when a procedure is considered legitimate from the purely legal perspective, it may remain questionable from the theological or ethical perspective. For example, the debate on abortion, especially 112

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in countries where it is not outlawed, shows clearly that legal sanction does not necessarily rule out religious or moral concerns. From another perspective some researchers argue that criminalization of practices such as abortion or assisted dying may reveal a closer connection between law and religion than is usually admitted, especially in modern, largely secular, legal systems. Within the Islamic context, ethical thought emerged and developed in light of Islam’s foundational sources, the Qurʾan and the Prophetic Sunnah. Over time the Islamic normative tradition comprised various types of systematic elaborations of Islamic ethics as reflected in fields such as theology, law, mysticism, philosophy, and literature. 3 Contemporary (bio)ethical deliberations in the Muslim context build on these diverse resources of the Islamic normative tradition and reflect the effort to understand and actualize Islamic morality with regard to bioethical questions and dilemmas.4 In particular, the relationship between Islamic law and ethics has usually been emphasized to the extent that they are occasionally identified as one integrated system.5 Although the standard definition of Shariʿah often highlights purely legal enactments, the term, due to its emblematic connection with divine revelation, usually evokes special moral and theological significance.6 This, in turn, points out the difficulty of singling out Islamic law apart from these moral and theological dimensions. On the other hand, the important distinction between Shariʿah, as an ideal divine system, and fiqh as a set of applied rules derived by jurists can illustrate the overlap and even confusion between Islamic law and ethics. While Shariʿah is conceived as an ethical-legal system that consists primarily in a divine moral vision for human conduct, human juristic approximation of this vision remains, like all types of human efforts, susceptible to error. Therefore while Islamic law, at the ideal Shariʿah level, cannot be conceived without its underlying moral vision, Islamic law, at the practical fiqh-level, can be said to have either fulfilled or overlooked such vision. This chapter examines the relationship between bioethics and the broader conceptualization of Islamic law under its Arabic counterpart and historically loaded term of Shariʿah. It will start by exploring some illustrative examples of premodern juristic discussions concerning medical questions and will then proceed to examine modern juristic deliberations on bioethical dilemmas.

1  Juristic discourses on medical issues Considering the comprehensive scope of the Islamic legal corpus, which includes ethical-­ legal assessment of the acts undertaken by legally competent individuals pertaining to all aspects of their lives, one would expect to find juristic discussions on a wide range of questions that fall under the scope of medical ethics or bioethics. Despite occasional reservations and scepticism on the validity, utility, or efficiency of medicine, it was held in high esteem in the Islamic tradition and medical practice was considered a collective duty ( fard․ kifa¯ ya), due to the great need for it both at the individual and societal levels.7 More particularly, it was deemed essential for the preservation of life, which is considered one of the five necessary values constituting the higher objectives of Shariʿah, together with religion, intellect, progeny, and property.8 Analogies were often made between medicine and sharʿ. While the former aims to ensure the well-being of the body, the latter aims to ensure the spiritual well-being of the believer both in this life and in the hereafter.9 Arabic terms for illness and healing occur in the Qurʾan both in the physical as well as spiritual senses and the Qurʾan itself is referred to as a source of healing (Q. 26:80; 17:82). Similarly the Prophetic Sunnah includes numerous references to medical issues to the extent that standard collections of hadith reports include chapters dedicated to medicine (al-t․ibb) as well as endorsement of specific therapeutic practices (tada¯ wı¯). These 113

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scriptural references came to form the substance of a sizeable body of literature known as Prophetic medicine (al-t․ibb al-nabawı¯), which also reflects pre-Islamic Arabian healing practices.10 Together with this Prophetic medical tradition, another philosophical medical tradition developed after the classical Greek tradition. These two parallel traditions have existed side by side and their interaction is often highlighted in connection with the concept of Islamic medicine. Examples of juristic discourses on medical issues include the debate on legal liability in medical practice and the extent to which a medical practitioner (e.g. physician, ­veterinarian, circumciser, or cupping specialist) would be held accountable for injuries resulting from medication errors. The discussion revolves around a report attributed to the Prophet in which he notes: ‘whoever practices medicine without being known as a competent practitioner shall be held accountable for any injury that he may cause’.11 Medical practice is pursued on the assumption that it is undertaken for the ultimate purpose of achieving the benefit of the patient. It may entail invasive procedures which, in the process, could potentially compromise the sanctity (h ․urma) of the human body and consequently violate its inherent dignity (kara¯ ma). The question that the jurists debated, therefore, was the extent to which these two considerations could be reconciled: achieving the patient’s benefit without compromising human dignity or the sanctity of the human body. Jurists of the various schools developed guidelines to govern and regulate liability for medical errors as well as underlying grounds for applicable penalties. Following the Prophetic report cited above, the majority of jurists argued that a competent physician should not be liable for injuries resulting from medical errors but they disagreed on the grounds for such ruling.12 For example, the Hanafis held that absence of liability is predicated on the fact that medical practice is a social necessity which is indispensable for the well-being of society. Holding physicians responsible for inadvertent errors may eventually discourage people from pursuing this profession, which in turn would constitute a greater harm at the collective level. At a deeper level, this social necessity is recognized by Shariʿah and it forms the basis for the Lawgiver’s permission for medical professionals to practise medicine and, if necessary, violate the original dignity of the human body in order to achieve a higher benefit. Another reason that the Hanafis gave is the consent of the patient and/or his family. According to the Hanafis, therefore, both the patient’s consent as well as the social need for medicine remove legal liability.13 The Shafiʿis and Hanbalis agree with the Hanafis that negation of liability is predicated on the consent of the patient and/or his family but they add also the intent of the medical practitioner. They argue that the practitioner’s conduct should be driven by the intent to benefit the patient not to harm him. Investigation of such intent is subject to relevant professional standards known among the experienced practitioners. The Malikis argue that negation of liability is based primarily on the ruler’s permission for the practitioner to practise the profession; and secondarily on the permission of the patient for the practitioner to examine him.14 The combination of these two types of permission exonerates the medical practitioner as long as his conduct is governed by the established standards of the profession. More particularly, established professional standards would determine the extent to which a given injury is a result of a common inadvertent error or an uncommon excessive ( fa¯․hish) one. While the former may be tolerated as a type of acceptable professional error, the latter should be subject to criminal investigation. Another example of juristic discourses on medical issues is the debate on the permissibility of pursuing medical treatment. The juristic debate revolves around the effort to reconcile scriptural references, which seem to point in different directions. While some Prophetic reports, including those recording Prophetic precedents, indicate the permissibility and even 114

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necessity of seeking medical treatment, others emphasize the importance of trusting God and putting one’s faith in His ability to heal diseases without any intervening causes. For example, reports advocating the pursuit of medical treatment include: ‘God did not send a disease except that He sent along with it a suitable cure’.15 On the other hand, other reports advocating total reliance on God may imply avoidance of medical treatment.16 In light of these references, five main juristic views were developed concerning the question of medical treatment: recommendation, obligation, permissibility, permissibility with preference for avoiding medical treatment, and impermissibility. The first view, recommendation of medical treatment, is adopted by the majority of Shafiʿis and some Hanbalis on the basis of several Prophetic reports indicating the importance of seeking medical treatment and also on the basis of actual precedents showing the Prophet’s use of medical treatment. In support of this view the Hanbali jurist Ibn al-Qayyim argues that seeking medical treatment confirms the connection between causes and their ensuing effects, which does not necessarily conflict with putting one’s faith in God. Belief in Divine omnipotence calls for respecting, rather than neglecting, the causes that God tied to certain effects.17 The second view, obligation of medical treatment, is adopted by some Hanafis and some Hanbalis, especially if the efficacy of treatment could be ascertained. In this case, according to this view, neglecting medical treatment amounts to intentionally harming or even killing oneself, which is explicitly prohibited in the Qurʾan. The third view is adopted by the majority of Hanafis, the Malikis, and some Hanbalis. According to this view, seeking medical treatment is permissible as long as one believes that healing can only be caused by God. The fourth view is adopted by the majority of Hanbalis and some Shafiʿis. According to this view, seeking medical treatment is permissible but avoiding it may be preferable because such attitude demonstrates one’s faith in God’s healing power.18 The fifth attitude advocating the impermissibility of medical treatment is attributed to some mystics, who argue that seeking medical treatment conflicts with one’s faith in God and His healing power.19 The bulk of available evidence and careful examination of the scattered reports on this issue seem to endorse the attitude in favour of pursuing medical treatment. This attitude seems to be compatible with the spirit of the Shariʿah and its ultimate objectives, which include preservation of life. Various enactments such as those pertaining to personal hygiene, religious concessions due to illness, and general legal maxims on removal of harm also support this attitude.20 The question of the legal status of medical treatment has been one of the most important questions for Islamic medical ethics. Not only does it reveal early engagement of Muslim jurists with this issue but it continues to be relevant for the assessment of various bioethical questions in the modern period ranging from the permissibility of organ donation to boundaries of withdrawing or withholding medical treatment in end-of-life situations. It also reveals the larger theological underpinnings of certain legal discussions pertaining to medical issues such as the religious significance of illness, the causal connection between treatment and cure, and also the connection between illness and belief in destiny.21

2  Islamic law and conceptualization of modern bioethics The modern bioethical discourse that emerged and developed in the West since the second half of the 20th century in response to various socio-cultural, legal, and technical factors was able to achieve global dominance through its integration in the modern medical curriculum, which spread all over the world, including Muslim-majority countries. This discourse is essentially secular and draws on Western philosophical sources. Apart from this dominant Western bioethical discourse, normative religious discussions emerged in Muslim-majority countries, 115

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largely coinciding with the importation of modern biomedical applications. These discussions, however, have often been perceived as reacting to the dominant Western discourse, which seems to set the agenda and define the terms of discussion.22 These Muslim discussions come in different shapes and forms ranging from direct quotations from Islam’s scriptural sources to systematic reflections in light of the various resources of the Islamic normative tradition. Considering the classical role of Islamic law in the definition of Islamic ethics, if not Islam itself, as well as the comprehensive scope of Islamic legal rules, bioethics in the Muslim context has largely consisted in ethical-legal assessment.23 The term al-fiqh ․tibbı¯ is sometimes used to signify juristic deliberations on biomedical issues, which reveals the unique role of the Islamic legal framework for the formulation of bioethics in the Muslim world.24 These deliberations reveal the effort to identify related discussions in the classical legal corpus for the extrapolation of appropriate rulings (ah․ka¯ m) concerning modern bioethical questions.25 Due to the fact that most bioethical questions involve novel procedures, which lack exact precedents in the Islamic legal tradition, one of the most important sources for the study of bioethics in the Muslim world has been the fatwa literature.26 The past few decades witnessed a significant increase in the volume of fatwas dealing with bioethical issues, which has been generated in response to increasing demand for answers to queries associated with the steady evolution of modern technology and its various biomedical applications.27 In addition to these individual fatwas, another important resource has been institutional collective fatwas by national and transnational organizations. These institutional fatwas are often issued after thorough examination of the technical as well as normative dimensions of the issues in question and they reflect a growing tendency emphasizing collaboration between technical experts and religious authorities.28 This synergy has inspired a new form of collective Ijtiha¯ d, which is distinguished from the standard (individual) form that was discussed and practised by Muslim jurists throughout the course of the Islamic legal tradition. The emergence of the term ‘collective ijtiha¯ d’ (ijtiha¯ d ­jama¯ ʿı¯) coincided with the rise and development of national and transnational juristic councils, especially during the second half of the 20th century.29 In addition to national fatwa-issuing bodies, some of the most important transnational institutions for biomedical issues have been the Islamic Fiqh Council of the Muslim World League (based in Mecca, established in 1978), the International Islamic Fiqh Academy of the Organization of Islamic Cooperation (based in Jeddah, established in 1981), and the Islamic Organization for Medical Sciences (based in Kuwait, established in 1984). The scholarly conferences and meetings that these institutions organized and the literature that was generated in the process constitutes an indispensable resource for religious-moral decisions concerning biomedical issues. This growing body of normative opinions and deliberations within the Muslim context has drawn the interest of scholars across the life sciences, humanities, and social sciences. For example, medical anthropologists observe that in the absence of binding legislation, religious-moral guidance in the form of authoritative fatwas by prominent jurists is often used to fill legislative gaps.30 The following section will explore a sample of biomedical issues that shows the role of Islamic law (particularly as constructed by these juristic institutions) in the formulation of Islamic normative rulings on some important bioethical issues.

3  Issues in Islamic bioethics The common perception of the juristic task (whether individual or collective) needed for the investigation of novel questions (nawa¯ zil, sing. na¯ zila) – lacking explicit reference in the foundational sources or exact precedent in the classical legal corpus – is that it involves the process of constructing a new appropriate ruling for such questions. This has been the case, 116

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for example, in issues such as post-mortem examination and organ donation. An equally important task, however, is placing the new ruling/answer within its proper thematic context as well as the larger Islamic legal framework. Both post-mortem examination (whether done for educational or forensic purposes) and organ donation raise the risk of violating the inherent dignity of the human body. The juristic process involves weighing and balancing this risk in relation to the expected private as well as public benefit to be procured as a result of these procedures. The juristic process also involves searching for close precedents or relevant examples such as premodern discussions on the possibility of cutting a dead body open to extract a live baby or to extract a valuable item belonging to someone else. For example, in his fatwa on the permissibility of autopsy, the late Egyptian Mufti and subsequently Grand Shaykh of al-Azhar Jad al-Haqq ʿAli Jad al-Haqq (d. 1996) reviews earlier fatwas issued during the 20th century, which argue for the permissibility of autopsy on the basis of expected forensic benefits such as confirming the cause of death or acquitting an innocent person, which would justify the invasive process of dissecting a dead human body. On the other hand, undertaking the procedure for educational purposes was subject to debate among contemporary jurists. Some jurists limit the permissibility of dissection to the classical cases discussed in the tradition, such as extracting a live baby or a valuable item, and argue for its impermissibility if undertaken for educational purposes, especially if other alternatives can be found to satisfy this need such as use of animals instead of actual human bodies. Other jurists, however, argue for the permissibility of dissection for educational purposes in light of the expected benefits of furthering scientific knowledge and research, especially when the identity of the dead person is unknown.31 Similarly, organ donation or transplantation was subject to a great deal of legal as well as jurisprudential controversy. In general, a distinction is often made between extracting organs from a dead body (cadaveric organ donation) or a living person. In the former case, many jurists argue for the permissibility of the process in light of the expected benefit of saving a human life, especially if permission is given or a will is made by a donor prior to death. In the absence of such explicit permission either by the donor or his family, some jurists argue for impermissibility while others argue for permissibility on the basis of necessity, which is usually the main grounds for undertaking this procedure. In the case of living organ donation, another distinction is made between indispensable organs such as the heart and other non-indispensable organs such as kidneys. Donating an indispensable organ is unanimously prohibited even if the person indicates his permission because this would be considered to be suicide. With regard to donating a non-indispensable organ, some jurists argue for impermissibility, regardless whether the donating person indicates permission, even if the extracted organ does not negatively impact the donor’s health or disrupt the functions of his body on the grounds that extracting a part of a living person violates the inherent dignity of the human body and that any extracted part of the human body should be buried. Some jurists also use the argument that one does not own one’s body and therefore cannot donate part of it. On the other hand, many jurists argue for the permissibility of organ donation provided that due permission is indicated and that the extracted organ does not negatively impact one’s health on the grounds that necessity overrides prohibition. Moreover, it is argued, what man does not own is his soul and his life, which should be preserved and protected at all times except in cases of necessity. By contrast, man owns his physical body and its material parts and can therefore donate any part of it as long as the act does not involve a greater harm.32 It is important to keep in mind that legal opinions on these new questions remain subject to revision and further consideration in light of the evolving scientific knowledge as well as public awareness about them.33 117

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In examining Muslim discourses on modern biomedical issues it is important to observe the impact of new medical research on the reconstruction of earlier legal rulings. For example, one of the main changes that were introduced into the body of classical Islamic family law in the modern period is the limitation imposed on the maximum pregnancy period. Pre-modern jurists differ on the determination of the exact gestation period, mainly due to lack of a clear textual indication to either the minimum or the maximum period of a viable pregnancy. The question of the average pregnancy period was one of the important criteria used by classical jurists to verify the plausibility of filiations claims, especially ones that were made by widows and divorced women. In general, the minimum period of pregnancy was not as controversial as the maximum period. Most jurists estimate the minimum period of pregnancy to be six months. Unlike the minimum period of pregnancy, the maximum period was subject to a great deal of juristic disagreement. In the juristic tradition, opinions vary from nine months to an open-ended range. On the other hand, most modern jurists, basing themselves on modern medical and scientific knowledge, choose a minimum pregnancy period of six months and a maximum of nine months. They explain the disagreement among pre-modern jurists and their accommodation of extended maximum periods of pregnancy by unavailability of decisive and accurate medical information and also by reliance on reported claims of these extended periods. Modern scientific research now considers these reports of extended pregnancy periods as cases of false pregnancy or pseudocyesis, which has been confirmed by modern clinical studies. For example, according to the recommendations of the Islamic Organization for Medical Sciences on this issue, the average pregnancy period is 280 days or 40 weeks starting from the beginning of the last menstruation cycle preceding pregnancy. In some cases this period may extend for one or two weeks at most, but it is highly unlikely that a baby can be born alive if delivery occurs in the forty-fifth week.34 Most personal status laws in Muslim-majority countries have adopted the minimum of six months and the maximum of one full year to allow for the accommodation of extremely rare cases, in which pregnancy can last for more than nine months.35 By far some of the important issues that had to be renegotiated in light of new medical findings as well as modern medical technology are associated with the two themes of beginning and end of human life. Both of these themes involve several legal and ethical implications as they touch on a number of critical questions ranging from (im)permissibility of abortion to new criteria for the definition of death. A central point in the discussions concerning both the beginning and end of human life has been the issue of the soul (ru¯․h). Reference in the Qurʾan, and to a larger extent in the Sunnah, trace the inception of human life to the point at which this metaphysical entity merges with or is blown into the human body at the earliest stages of embryonic development. According to the mainstream view in the tradition and also in the modern period, this point is 120 days. Modern embryology detecting signs of life prior to this threshold, however, has rekindled classical debates surrounding the interpretation of the various scriptural references on this issue. Similarly, scriptural references to death trace its occurrence to the process through which the soul is separated from the body. The traditional medical definition of death was based primarily on cardiopulmonary criteria with several associated external signs. Modern neurology, however, suggests another definition on the basis of brain stem functions. One important question that Muslim jurists discuss is the extent to which this new definition of (brain stem) death can be accepted from the Islamic perspective. Joint meetings between physicians and life scientists on the one hand and jurists as well as legal experts on the other were convened in order to discuss the exact beginning and end of human life in light of new scientific and medical developments. Important meetings were 118

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initially sponsored by the Islamic Organization for Medical Sciences, which were followed by subsequent meetings organized by the two other transnational institutions mentioned above: the Islamic Fiqh Council and the International Islamic Fiqh Academy. The recommendations and resolutions of these joint deliberations have become important reference points for moral decision-making on these questions.36 Another area of bioethics that has necessitated reconsideration of established legal rules is assisted reproduction. Since their introduction into the Muslim world, modern assisted reproductive technologies (ART) have stirred debates over their potential legal, ethical, and social implications. Some of the important issues discussed include: the moral status of embryos, gamete donation, cryopreservation of pre-embryos, post-marital or post-mortem conception, artificial insemination, manipulation of oocytes and embryos in vitro, the treatment of surplus or unwanted embryos, and the commercialization of the human reproductive function.37 From the normative Islamic perspective, reproduction should be pursued within the framework of a licit sexual relationship in the form of marriage and most juristic discussions examine the impact of modern reproductive technologies on the marital relationship. For example, the case of surrogacy illustrates a host of important legal and ethical concerns concerning authenticity of parental claims, shared parental claims on the basis of genetic or gestational considerations, and commercial use of reproductive organs. Because surrogacy, by definition, involves a third party, the attitude of the overwhelming majority of Muslim scholars has been outright condemnation. In addition to substantive Shariʿah-based arguments about the importance of marriage as the general framework within which human reproduction should occur, the Muslim ban on third-party involvement in the reproductive process is the result of successive institutional fatwas, decisions, and recommendations issued by reputed and authoritative organizations, such as those mentioned above, beginning shortly after the successful birth of the first IVF baby in England in 1978. One of the important questions in the juristic discussions of surrogacy is the relationship between surrogacy and adultery and, consequently, the extent to which a child born through surrogacy is considered legitimate or illegitimate. Another important question is the potential impact of surrogacy on the reconstruction of parental relationships as well as the emergence of new kinds of parenthood.38 The impact of modern medical technology on the classical corpus of Islamic law has not been limited to particular substantive issues but it has also included its procedural dimensions as well. For example, juristic deliberations on the evaluation of DNA testing and its evidentiary weight vis-à-vis classical means is an important case in point. This issue has stirred extensive juristic discussions to address the evidentiary power of DNA whether in criminal or in civil cases. In general, use of DNA analysis in the investigation of criminal cases was permitted with the exception of cases involving textually stipulated crimes and punishments (h․udu¯d) or retaliation (qis․a¯․s), which would require adherence to certain prescribed rules and procedures. 39 On the other hand, the main implementation of DNA analysis in civil cases is for paternity verification. Opinions in the literature indicate that securing legitimacy for the use of DNA fingerprinting for this purpose is achieved through two main approaches. The first is treatment of DNA testing results as a type of supporting or circumstantial evidence, in conjunction with or in lieu of the classical method of physiognomy (qiya¯ fa). The second is treatment of DNA testing results as a full legal proof by revisiting the definition of the term evidence (bayyina), which, according to this line of reasoning, does not have to be limited to witness testimony, as it has traditionally been interpreted by the majority of jurists.40 119

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Conclusion Modern medical knowledge has become an indispensable part of global culture, which is informed largely by modern science and its far-reaching ability to explain all types of natural phenomena including the constitution of the human body itself and the extent to which it differs from other living organisms. Any functional legal system has to find ways to integrate modern scientific findings into its legal structure, and when necessary revise legal rules and doctrines that cannot be substantiated by verified scientific facts. Within the Muslim context, bioethical deliberations are often dominated by jurisprudential discourses. This can be attributed to the pivotal role that Shariʿah has always played in the definition of Islamic morality and the development of the Islamic normative tradition. This may appear to conflict with conventional assessments of the role of Shariʿah in the modern period, which tend to emphasize its diminished role and scope in the wake of the influential legal reform movement that ushered the birth of national legal systems, development of legal codes, and rise of legal positivism. With very few exceptions, Shariʿah has lost its status as the sole and unchallenged legal framework for governing all aspects of Muslim populations, and occasionally also non-­Muslims living under Muslim rule. Shariʿah, however, was able to maintain its vitality through its ritual, devotional and, wider moral dimensions. At that level Shariʿah did not lose much in the wake of the legal reform movement spanning most Muslim-majority countries over the past two centuries. Modern bioethical questions are important test cases that demonstrate the continued relevance and importance of Shariʿah for Muslims as they grapple with such unprecedented bioethical dilemmas. In the absence of binding (positive) legislation, jurisprudential pronouncements, in the form of individual or collective fatwas, become the main resource for moral-legal decision making. Moreover, as constitutions in Muslim-­ majority countries often list Shariʿah as a (if not the) main source of legislation, courts also usually resort to this body of ethical-legal literature to fill legislative gaps in particular cases.

Notes * This chapter was made possible by NPRP grant # NPRP8-1478-6-053 from the Qatar National Research Fund (a member of Qatar Foundation). The statements made herein are solely the responsibility of the author. 1 This was the vision that Van Rensselaer Potter, who is considered one of the founders and pioneers of modern bioethics, proposed. See his ‘Bioethics, the Science of Survival’, Perspectives in Biology and Medicine 14 (1970), 127–53; and Bioethics: Bridge to the Future (Englewood Cliffs, NJ: ­Prentice-Hall Inc., 1971). For a general overview of the development of the field, see Albert Jonsen, The Birth of Bioethics (Oxford: Oxford University Press, 1998). 2 Lewis Vaughn, Bioethics: Principles, Issues, and Cases (Oxford: Oxford University Press, 2010), 3–22. 3 For an overview of the range of ethical thought in the Islamic tradition, see George Hourani, Reason and Tradition in Islamic Ethics (Cambridge: Cambridge University Press, 1985); Majid Fakhry, Ethical Theories in Islam (Leiden: Brill, 1994); Muhammad ʿAbid al-Jabiri, Al-ʿAql al-Akhlaqi al-ʿArabi (Beirut: Markaz Dirasat al-Wihda al-ʿArabiyya, 2006). 4 See my ‘Bioethics in Islamic Thought’, Religion Compass 8/11 (2014): 337–46. 5 See, for example, Abdulaziz Sachedina, Islamic Biomedical Ethics: Principles and Application (Oxford: Oxford University Press, 2009), 40 (exploring the development of practical ethics in the Islamic normative tradition in two sciences: ethics of action in fiqh and ethics of character in akhlaq); Kevin Reinhart, ‘Islamic Law as Islamic Ethics’, The Journal of Religious Ethics 11 (1983): 186–203. 6 See Fazlur Rahman, Islam (Chicago: University of Chicago Press, 2002), 100–16. 7 Franz Rosenthal, ‘The Defense of Medicine in the Medieval Muslim World’, Bulletin of the History of Medicine 43 (1969): 519–32 (listing three main types of attack against medicine in the form of: a religious argument that it would conflict with religious faith; a secular argument questioning its healing effect; and the argument that medicine is quite difficult and hard to attain). See also Fazlur 120

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Rahman, Health and Medicine in the Islamic Tradition (Chicago: ABC International Group, 1998), 29 (arguing that despite tendencies in Islamic theology emphasizing total resignation to Divine will, on the practical side Muslims understood the importance of exerting their own efforts in order to achieve desired outcomes). 8 Juristic discourses on the preservation of human life would include: discussions on the protection of potential human life as in the case of the debate on abortion; protection of existing human life as in the case with the debate on homicide or suicide; or even protection of the human body after death as in the case of the ban against mutilation of dead bodies or the debate on anatomy. 9 ʿIzz al-Din ʿAbd al-ʿAziz ibn ʿAbd al-Salam, Al-Qawaʿid al-Kubra, al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam, 2 vols, ed. Nazih Kamal Hammad and ʿUthman Jumʿa Dumayriyya (Damascus: Dar al-Qalam, 2000), 1:8. 10 ʿAbd al-Rahman b. Muhammad b. Khaldun, Muqaddimat Ibn Khaldun, ed. Hamid Ahmad al-Tahir (Cairo: Dar al-Fajr li-l-Turath, 2004), 610 (noting that medical issues included in Prophetic reports should be seen as part of the customary practices associated with Arabic culture during the lifetime of the Prophet rather than an essential part of Shariʿah). See also Rahman, Health and Medicine in the Islamic Tradition, 32–3. 11 Abu Dawud Sulayman ibn al-Ashʿath al-Sijstani, Sunan Abi Dawud, 3 vols, ed. Muhammad ʿAbd al-ʿAziz al-Khalidi (Beirut: Dar al-Kutub al-ʿIlmiya, 2007), 3:192. 12 ʿAbd al-Qadir ʿAwda, Al-Tashriʿ al-Jinaʾi al-Islami Muqaranan bi-l-Qanun al-Wadʿi, 2 vols (Cairo: Maktabat Dar al-Turath, 2003), 1:448–52; Muhammad Sallam Madkur, Nazariyyat al-Ibaha ʿinda al-Usuliyyin wa-l-Fuqahaʾ, Bahth Muqaran (Cairo: Dar al-Nahda al-ʿArabiyya, 1984), 458–61; Ahmad Sharaf al-Din, al-Ahkam al-Sharʿiyya li-l-Aʿmal al-Tibbiyya (Cairo: NP, 1987), 41. 13 Sharaf al-Din, al-Ahkam al-Sharʿiyya, 43. 14 ʿAwda, Al-Tashriʿ al-Jinaʾi al-Islami, 1:449–51. 15 Ibn Hajar al-ʿAsqalani, Fath al-Bari bi-Sharh Sahih al-Bukhari, 13 vols (Cairo: Maktabat al-ʿIlm, 2000), 10:153 (Kitab al-Tibb). 16 For example, one report includes reference to 70,000 entering paradise without questioning. According to the report, they did not resort to incantation, evil omen or cauterization but they instead placed their trust in God. See Ibn Hajar al-ʿAsqalani, Fat-h al-Bari bi-Sharh Sahih al-Bukhari, 11:448 (Kitab al-Riqaq). 17 Ibn Qayyim al-Jawziyyah, Zad al-Maʿad fi Hady Khayr al-ʿIbad, 6 vols, ed. Shuʿayb al-Arnaʾut and ʿAbd al-Qadir al-Arnaʾut (Beirut: Muʾssasat al-Risala, 1998), 4:13. See also Ibn Hajar, Fat-h al-Bari, 10:153–4 and 11:452–3. The Shafiʿi jurist Abu Hamid al-Ghazali divides the causal connection between treatment and healing into three main types: definitive (maqt․u¯ʿ), speculative (maz ․nu¯n), and imaginary (mawhu¯m). The meaning of reliance on God differs for each of these types. For example, the first type is illustrated by the occurrence of satiation after eating bread and in this case true reliance on God means observing, considering and fulfilling this causal connection. Disregarding this connection would be prohibited, especially if it leads to death. The third type is illustrated by cauterization because its curative effect cannot be confirmed. In this case, reliance on God means disregarding this type of treatment. The second type covers a wide range of medical procedures such as cupping, whose curative effect is only speculative. This type occupies an intermediary stage between the first and the third types and is subject to the discretion of the individual: observing this type is not antithetical to true reliance on God (as is the case with the third type) and disregarding it is not prohibited (as is the case with the first type). See Abu Hamid Muhammad ibn Muhammad ibn Ahmad al-Ghazali, Ihyaʾ ʿUlum al-Din, 5 vols, ed. ʿAbd al-Muʿti Amin Qalʿaji (Beirut: Dar Sadir, n.d.), 4:350. 18 For example, al-Ghazali listed some situations in which, he argued, avoiding medical treatment could be preferable, as is the case when: the person believes, on the basis of gnostic knowledge (kashf ) that his life-term has come to an end and that medical treatment is of no use; the person is so occupied by his spiritual condition and concern for salvation in the hereafter that he cannot attend to his physical ailment, which makes him less responsive to the instructions of the treating physician; the person suffers from a chronic disease with no known or certain cure; the person intends illness as a means to increase his record of good deeds or expiate past sins; the person fears that treating his illness would affect his self-consciousness and increase the level of distraction. See al-Ghazali, Ihyaʾ ʿUlum al-Din, 4:354–8. 19 ʿAbd al-Fattah Mahmud Idris, Hukm al-Tadawi bi-l-Muharramat, Bahth Fiqhi Muqaran (Cairo: NP, 1993), 8–32; ʿAli Muhammad Yusuf al-Muhammadi, ‘Hukm al-Tadawi fi al-Islam’, Majallat Majmaʿ 121

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20

21

22 23

24

25 26 27 28

29 30

31 32

al-Fiqh al-Islami 7 (1992): 602–8; al-Mawsuʿa al-Fiqhiyya, 45 vols (Kuwait: Wazarat al-Awqaf wa-lShuʾun al-Islamiyya, 2008), 11:115–18. On the extent to which the jurists discussed the impact of illness on one’s ability to discharge one’s legal-religious duties, see Ahmad b. Ibrahim b. Khalil, Ahkam al-Marda, ed. Muhammad Surur ­Muhammad Murad al-Balkhi (Kuwait: Wazarat al-Awqaf wa al-Shuʾun al-Islamiyya, 1997). The international Islamic Fiqh Academy, affiliated with the Organization of Islamic Cooperation, discussed the issue of seeking medical treatment in its seventh conference (held in Jeddah, Saudi Arabia, 9–14 May 1992). Its resolution indicates that in principle seeking medical treatment is legitimate but the exact ruling may vary for different individuals depending on specific circumstances. For example, it can be obligatory if avoiding medical treatment would result in one’s death, incapacity or failure of one’s organs. It would also be obligatory in cases where one’s disease would transmit to others if left untreated, as is the case with contagious diseases. If the disease would result in mere weakness in the body rather than death or loss of organs, treatment in this case would be recommended but not obligatory. Apart from these two cases, medical treatment would be just permissible. Finally medical treatment would be reprehensible in cases where it would lead to further complications or deterioration of the health condition. See Majallat Majmaʿ al-Fiqh al-Islami 7 (1992): 731–2. For a similar discussion on the question of contagion and juristic deliberations over its impact on the transmission of diseases, see Justin Stearns, ‘Enduring the Plague: Ethical Behavior in the Fatwas of a Fourteenth Century Mufti and Theologian’, in Muslim Medical Ethics: from Theory to Practice, ed. Jonathan E. Brockopp and Thomas Eich (Columbia: University of South Carolina Press, 2008), 38–54; Russell Hopley, ‘Contagion in Islamic Lands: Responses from Medieval Andalusia and North Africa’, Journal for Early Modern Cultural Studies 10 (2010): 45–64. Birgit Krawietz, ‘Shari’ah and Medical Ethics’, in The Ashgate Research Companion to Islamic Law, ed. Rudolph Peters and Peri Bearman (Burlington, VT: Ashgate Publishing Company, 2014), 292. See, for example, Wael Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 1 (making reference to the description of Shariʿah as the lifeblood of Islam). See also my ‘Religious and Cultural Legitimacy of Bioethics: Lessons from Islamic Bioethics’, Medicine, Health Care and Philosophy 16 (2013): 6717. Some scholars, however, point out gaps within the current juristic discourses on biomedical issues and emphasize the inadequacy of classical legal methodology in addressing the new questions that they generate. See for example, Sachedina, Islamic Biomedical Ethics, 44 and Ebrahim Moosa, ‘Muslim Ethics and Biotechnology’, in The Routledge Companion to Religion and Science, ed. James W. Haag et al. (New York: Routledge, 2012), 460. See, for example, Muhammad Sulayman al-Ashqar, Abhath Ijtihadiyya fi al-Fiqh al-Tibbi (Amman, Jordan: Dar al-Nafaʾis, 2006). The fatwa literature is usually singled out as one of the important resources for the study of Muslim perspectives on bioethical issues. See, for example, Vardit Rispler-Chaim, Islamic Medical Ethics in the Twentieth Century (Leiden: Brill, 1993), 3. Mohammed Ghaly, ‘Islamic Bioethics in the Twenty-First Century’, Zygon: Journal of Religion and Science 48 (2013): 592–9. Muzaffar Iqbal, Science and Islam (Westport, CT: Greenwood Press, 2007), 182; Mohammed Ghaly, ‘Biomedical Scientists as Co-Muftis: Their Contribution to Contemporary Islamic Bioethics’, Die Welt Des Islams 55 (2015): 286–311 (discussing the problems involved in this collaboration between religious scholars and medical experts). Khalid Husayn al-Khalid, Al-Ijtihad al-Jamaʿi fi al-Fiqh al-Islami (Dubai: Markaz Jumʿa al-Majid li-l-Thaqafa wa-l-Turath, 2009), 79. See also Mohammed Ali al-Bar and Hassan Chamsi-Basha, Contemporary Bioethics: Islamic Perspective (New York: Springer, 2015) 9–15. See, for example, Morgan Clarke, Islam and New Kinship, Reproductive Technology and the Shari’ah in Lebanon (New York: Berghahn Books, 2009) and Marcia Inhorn, The New Arab Man: Emergent Masculinities, Technologies, and Islam in the Middle East (Princeton, NJ: Princeton University Press, 2012), 201–2. Jad al-Haqq ʿAli Jad al-Haqq, Bayan li-l-Nas (Cairo: Dar al-Faruq, 2014), 691–4; Sachedina, Islamic Biomedical Ethics, 177. Jad al-Haqq, Bayan li-l-Nas, 695–9. For more on the debate on organ donation within the Muslim context, see Sherine Hamdy, Our Bodies Belong to God: Organ Transplants, Islam, and the Struggle for Human Dignity in Egypt (Berkeley: University of California Press, 2012) and Farhat Moazam, Bioethics and Organ Transplantation in a Muslim Society: A Study in Culture, Ethnography, and Religion (Bloomingdale: Indiana University Press, 2006).

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33 For example, Muzaffar Iqbal notes ‘over a period of time, a certain pattern seems to have emerged in responses of Muslim jurists to issues arising out of new scientific and technological developments: most jurists first oppose the practice whereas a minority allows it; with time, the practice becomes prevalent and a de facto acceptance is then granted’. See Iqbal, Science and Islam, 184. 34 Muhammad ʿAli al-Bar, Khalq al-Insan bayna al-Tibb wa-l-Qurʾan ( Jeddah, Saudi Arabia: al-Dar al-Saʿudiyya lil-Nashr wa-l-Tawziʿ, 1984), 452; ʿAʾisha Ahmad Salim Hasan, Al-Ahkam al-­Mutaʿlliqa bi-l-Haml fi al-Fiqh al-Islami (Beirut: al-Muʾassasa al-Jamiʿiyya li-l-Dirasat wa-l-Nashr wa-l-Tawziʿ, 2008), 23. 35 Hasan, Al-Ahkam al-Mutaʿlliqa bi-l-Haml, 24; Wael Hallaq, Sharı¯ʿa: Theory, Practice, and Transformation (Cambridge: Cambridge University Press, 2009), 464. 36 See for example, Khalid al-Mad-hkur et al. (eds), Al-Haya al-Insaniyya: Bidayatuha wa-Nihayatuha fi al-Mafhum al-Islami (Kuwait: al-Munazzama al-Islamiyya li-l-ʿUlum al-Tibbiyya, 1985) and Ahmad al-Jindi et al. (eds), Al-Taʿrif al-Tibbi li-l-Mawt (Kuwait: al-Munazzama al-Islamiyya lil-ʿUlum al-Tibbiyya, 2000). For commentaries on these deliberations, see Mohammed Ghaly, ‘The Beginning of Human Life: Islamic Bioethical Perspectives’, Zygon 47 (2012): 175–213; Ebrahim Moosa, ‘Language of Change in Islamic Law: Redefining Death in Modernity’, Islamic Studies 38 (1999); 305–42; Aasim Padela et al., ‘Medical Experts Islamic Scholars Deliberating Over Brain Death: Gaps in the Applied Islamic Bioethics Discourse’, The Muslim World 101 (2011): 53–72. 37 See, for example, Thomas Eich, ‘Decision-Making Processes among Contemporary Ulama, ­Islamic Embryology and the Discussion of Frozen Embryos’, in Muslim Medical Ethics from Theory to Practice, ed. Jonathan Brockopp and Thomas Eich (Columbia: University of South Carolina Press, 2008), 61–75. 38 See my ‘Foundations of the Consensus against Surrogacy Arrangements in Islamic Law’, Islamic Law and Society 22 (2015): 82–113. 39 One of the main sources of guidelines for this issue has been the decision of the Islamic Fiqh Council issued in 2002, see Majallat al-Majmaʿ al-Fiqhi al-Islami 15 (2002): 478–81. 40 See my ‘Islamic Law of Paternity between Classical Legal Texts and Modern Contexts: From Physiognomy to DNA Analysis’, Journal of Islamic Studies 25 (2014): 1–32.

Select bibliography and further reading Ashqar, Muhammad Sulayman al-. Abhath Ijtihadiyya fi al-Fiqh al-Tibbi (Amman, Jordan: Dar al-­Nafaʾis, 2006). Bar, Muhammad ʿAli al-. Khalq al-Insan bayna al-Tibb wa-l-Qurʾan ( Jeddah, Saudi Arabia: al-Dar al-Saʿudiyya li-l-Nashr wa-l-Tawziʿ, 1984). Bar, Mohammed ʿAli al-, and Hassan Chamsi-Basha. Contemporary Bioethics: Islamic Perspective (New York: Springer, 2015). Clarke, Morgan. Islam and New Kinship, Reproductive Technology and the Shari’ah in Lebanon (New York: Berghahn Books, 2009). Eich, Thomas. ‘Decision-Making Processes among Contemporary Ulama, Islamic Embryology and the Discussion of Frozen Embryos’. In Muslim Medical Ethics from Theory to Practice, ed. Jonathan Brockopp and Thomas Eich (Columbia: University of South Carolina Press, 2008). Fakhry, Majid. Ethical Theories in Islam (Leiden: Brill, 1994). Ghaly, Mohammed. ‘The Beginning of Human Life: Islamic Bioethical Perspectives’. Zygon 47 (2012): 175–213. Ghaly, Mohammed. ‘Islamic Bioethics in the Twenty-First Century’. Zygon: Journal of Religion and Science 48 (2013): 592–9. Ghaly, Mohammed. ‘Biomedical Scientists as Co-Muftis: Their Contribution to Contemporary ­Islamic Bioethics’. Die Welt Des Islams 55 (2015): 286–311. Hamdy, Sherine. Our Bodies Belong to God: Organ Transplants, Islam, and the Struggle for Human Dignity in Egypt (Berkeley: University of California Press, 2012). Hasan, ʿAʾisha Ahmad Salim. Al-Ahkam al-Mutaʿlliqa bi-l-Haml fi al-Fiqh al-Islami (Beirut: al-Muʾassasa al-Jamiʿiyya li-l-Dirasat wa-l-Nashr wa-l-Tawziʿ, 2008). Hopley, Russell. ‘Contagion in Islamic Lands: Responses from Medieval Andalusia and North Africa’. Journal for Early Modern Cultural Studies 10 (2010): 45–64. Hourani, George. Reason and Tradition in Islamic Ethics (Cambridge: Cambridge University Press, 1985). 123

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Ibn Khaldun, ʿAbd al-Rahman b. Muhammad. Muqaddimat Ibn Khaldun. Ed. Hamid Ahmad al-Tahir (Cairo: Dar al-Fajr lil-Turath, 2004). Ibn Khalil, Ahmad b. Ibrahim. Ahkam al-Marda. Ed. Muhammad Surur Muhammad Murad al-Balkhi (Kuwait: Wazarat al-Awqaf wa-l-Shuʾun al-Islamiyya, 1997). Idris, ʿAbd al-Fattah Mahmoud. Hukm al-Tadawi bi-l-Muharramat, Bahth Fiqhi Muqaran (Cairo: n.p., 1993). Inhorn, Marcia. The New Arab Man: Emergent Masculinities, Technologies, and Islam in the Middle East (Princeton, NJ: Princeton University Press, 2012). Iqbal, Muzaffar. Science and Islam (Westport, CT: Greenwood Press, 2007). Jabiri, Muhammad ʿAbid al-. Al-ʿAql al-Akhlaqi al-ʿArabi (Beirut: Markaz Dirasat al-Wihda al-­ʿArabiyya, 2006). Jad al-Haqq, Jad al-Haqq ʿAli. Bayan lil-Nas (Cairo: Dar al-Faruq, 2014). Jindi, Ahmad al-. et al. (eds). Al-Taʿrif al-Tibbi lil-Mawt (Kuwait: al-Munazzama al-Islamiyya lil-ʿUlum al-Tibbiyya, 2000). Krawietz, Birgit. ‘Shari’ah and Medical Ethics’. In The Ashgate Research Companion to Islamic Law, ed. Rudolph Peters and Peri Bearman (Burlington, VT: Ashgate Publishing Company, 2014). Moazam, Farhat. Bioethics and Organ Transplantation in a Muslim Society: A Study in Culture, Ethnography, and Religion (Bloomingdale: Indiana University Press, 2006). Moosa, Ebrahim. ‘Language of Change in Islamic Law: Redefining Death in Modernity’. Islamic Studies 38 (1999): 305–42. Moosa, Ebrahim. ‘Muslim Ethics and Biotechnology’. In The Routledge Companion to Religion and Science, ed. James W. Haag et al. (New York: Routledge, 2012). Muhammadi, ʿAli Muhammad Yusuf. ‘Hukm al-Tadawi fi al-Islam’. Majallat Majmaʿ al-Fiqh al-Islami 7 (1992): 599–662. Padela, Aasim et al. ‘Medical Experts Islamic Scholars Deliberating Over Brain Death: Gaps in the Applied Islamic Bioethics Discourse’. The Muslim World 101 (2011): 53–72. Potter, Van Rensselaer. ‘Bioethics, the Science of Survival’. Perspectives in Biology and Medicine 14 (1970): 127–53. Potter, Van Rensselaer. Bioethics: Bridge to the Future (Englewood Cliffs, NJ: Prentice-Hall Inc., 1971). Rahman, Fazlur. Health and Medicine in the Islamic Tradition (Chicago: ABC International Group, 1998). Rispler-Chaim, Vardit. Islamic Medical Ethics in the Twentieth Century (Leiden: Brill, 1993). Rosenthal, Franz. ‘The Defense of Medicine in the Medieval Muslim World’. Bulletin of the History of Medicine 43 (1969): 519–32. Sachedina, Abdulaziz. Islamic Biomedical Ethics: Principles and Application (Oxford: Oxford University Press, 2009). Shabana, Ayman. ‘Religious and Cultural Legitimacy of Bioethics: Lessons from Islamic Bioethics’. Medicine, Health Care and Philosophy 16 (2013): 671–7. Shabana, Ayman. ‘Bioethics in Islamic Thought’. Religion Compass 8/11 (2014): 337–46. Shabana, Ayman. ‘Islamic Law of Paternity between Classical Legal Texts and Modern Contexts: From Physiognomy to DNA Analysis’. Journal of Islamic Studies 25 (2014): 1–32. Shabana, Ayman. ‘Foundations of the Consensus against Surrogacy Arrangements in Islamic Law’. Islamic Law and Society 22 (2015): 82–113. Sharaf al-Din, Ahmad. Al-Ahkam al-Sharʿiyya li-l-Aʿmal al-Tibbiyya (Cairo: n.p., 1987). Stearns, Justin. ‘Enduring the Plague: Ethical Behavior in the Fatwas of Fourteenth Century Mufti and Theologian’. In Muslim Medical Ethics: from Theory to Practice, ed. Jonathan E. Brockopp and Thomas Eich (Columbia: University of South Carolina Press, 2008.

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Part II

History and interpretation Scholars

6 The Qurʾan and the ­Hadith as sources of Islamic law Amr Osman

The primary legal sources in the classical Sunni view of Islamic law are the Qurʾan and the Prophet Muhammad’s Sunnah/Hadith. All other sources of Islamic law derive their legitimacy in this theory from these two sources. As legal sources, however, the Qurʾan and the Sunnah/ Hadith present various forms of challenge to legal scholars. This chapter presents a general historical overview of these two sources of Islamic law in addition to some of the challenges that they pose to jurists, both as independent and complementary textual sources. The chapter begins with a brief introduction on the definition, authenticity, status and authority of these two sources both in the classical Sunni view and in some modern studies, followed by a discussion of specific case studies that illustrate their nature as legal sources. The argument put forward in this chapter is that the notion that Islamic law is based on what its textual sources ‘say’ is untenable. Muslim jurists, as will be demonstrated, knew that an essential aspect of what they were doing was to flesh or work out the meaning of these texts. This they did on the basis of many factors pertaining, not only to language, but also to cultural, social and moral norms and values.

1 The Qurʾan and the Sunnah/Hadith: definition, authenticity, status and authority According to the Orthodox Sunni perspective, the Qurʾan is God’s word that was revealed to the Prophet Muhammad during the 22 years of his messengership (from 610 to 632 CE). Based on internal and external pieces of evidence, Muslims believe that the exact wording of the Qurʾan has been safeguarded since its revelation to the Prophet. Not only does God Himself explicitly mention in the Qurʾan that he would protect it (as Muslims take Q. 15:9 – ‘Verily, We have revealed the Reminder and We will surely be its Guardian’ – to mean), but the fact that dozens or even hundreds of individuals transmitted it from the Prophet to thousands in each subsequent generation removes any doubt about the authenticity of both the entirety of the Qurʾan and any part thereof. Reports suggesting that some parts of the Qurʾan may have been altered or removed have been categorically rejected by Sunni scholars as both unorthodox and blasphemous, although most of these same scholars hold that a few verses of the Qurʾan may have been removed from the Qurʾan by God Himself (a form of abrogation – naskh (more on which later) – known as ‘textual abrogation’). 127

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The developed Sunni legal theory broadly defines Sunnah as the sayings and practice of the Prophet Muhammad, all of which are considered normative and binding sources of theological, legal and other Islamic beliefs. In its narrow sense, however, the Sunnah refers to only the practice or the example of the Prophet. It is regarded as a normative and ideal embodiment of the teachings of Islam that was, as such, also safeguarded by God as a form of revelation extra to the Qurʾan. According to this view, Muhammad, qua prophet and messenger of God, was protected from error, and when he did err, he was set right by divine grace. Furthermore, as the receiver of revelation, the Prophet was the main interpreter of God’s words, and his statements (hadiths) were declared authoritative by the Qurʾan itself. This notwithstanding, Sunni scholars have maintained that the Prophet’s statements do not match the Qurʾan’s perfection, immutability, spirituality and status as God’s word the Qur’an that is used exclusively in ritual prayers. Because of the organic relationship between the Prophet’s practice and sayings – the former have been transmitted in the form of reports about his actions similar to the reports that contain his words – the terms Sunnah and Hadith came to be used almost interchangeably by Muslim scholars. For convenience, Hadith will be used henceforth to refer to both the sayings of the Prophet Muhammad as well as reports about his practice. There is another important difference between the Qurʾan and the Hadith as legal sources, which is that despite its status as a form of divine revelation, the Hadith, in the Sunni tradition, did not enjoy the same degree of divine protection as was the case with the Qurʾan. Establishing and safeguarding the authenticity of the Hadith required arduous human effort. In the decades following the Prophet’s death, both reports from and about him were transmitted orally. When political, religious and legal divisions among Muslims deepened, traditions were falsely put in the mouth of the Prophet to lend credence to conflicting theological, legal and political views. This situation alarmed a group of pious transmitters of Prophetic traditions, who, starting from as early as the second half of the first/seventh and well into the second/eighth centuries, began to do two things almost concurrently: collecting and writing down reports from and about the Prophet Muhammad, and developing a methodology by which they assessed the reliability of other Hadith transmitters (henceforth ‘traditionists’) and the integrity of each chain of transmitters (isna¯ d, literally meaning a prop) which they now insisted must precede, or support, any report from or about the Prophet. In other words, these scholars acted as Hadith collectors, transmitters and critics. Hadith scholars needed to travel far and wide to ‘collect’ Hadith because after the Muslim conquests in the few decades following the Prophet’s death, his Companions (s․ah․a¯ ba) dispersed in various provinces in the Muslim state, such as Iraq, Iran, Syria and Egypt, where they transmitted the traditions that they had learned from the Prophet. Consequently, the traditions that existed in these provinces varied, which naturally resulted in legal disagreements among scholars, with each assuming that it followed the example of the Prophet. Seeking to standardize the law, traditionists began to collect traditions from various regions, a strenuous effort that culminated in the emergence in the third/ninth century of large and ‘universal’ canonical collections of ‘sound’ traditions, which collections became the standard and authoritative sources of the Hadith. But during this process of Hadith collection, these scholars needed to sift authentic from unauthentic traditions. This they did, according to the Sunni theory, by collecting information about traditionists in each chain of transmitters, a process that led to the compilation of even larger collections of biographies (tara¯ jim) of all individuals featured in chains of Hadith transmission, both reliable and otherwise. 128

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Later Sunni scholars believe that the methodology developed by the early Hadith critics was successful in sifting authentic from unauthentic traditions. However, because the vast majority of the Prophetic traditions were transmitted by individual transmitters (a¯․ha¯ d) from the Prophet and even for one or two more generations to come, and because of the presence of multiple versions of many traditions, even sound Hadith is not deemed to have the same epistemological status of the Qurʾan that was transmitted, as has been mentioned previously, by a large number of people in each of its chains of transmitters. Accordingly, whereas the authenticity of the Qurʾan is certain, that of the Hadith is only probable, but is certain enough to be a basis of what is regarded as normative views and practice. This understanding of the epistemological value of the Hadith, however, did not prevent Sunni scholars from regarding it, not only as a binding legal source alongside the Qurʾan, but in fact as a legal source that ‘rules over’ the Qurʾan, which is in more need of the Hadith than the Hadith is of it, as some medieval Muslim scholars put it.1 In the classical Sunni theory, then, both the Qurʾan and the Prophet Muhammad’s Sunnah/Hadith were accepted as the main sources of Islamic law right from the beginning of Islam. Both were regarded as two independent but also complementary (as will be seen) forms of revelation, even if the Qurʾan is held in special esteem as God’s holy speech that is both immutable, unsurpassed and eternally divinely-protected from verbal corruption. Both the Qurʾan and the Sunnah/Hadith, therefore, have contributed to the formation of Islamic law since the beginning of Islam, even if this classical theory acknowledges that the disparity among different Muslim provinces in early Islam in terms of the repository of Prophetic traditions that were available to each of them led to legal disagreements among jurists in various regions but also within each region. Starting from the second/eighth century, however, Hadith scholars and critics were able first to purge fabricated traditions and embark on a process of collecting and writing down traditions. This process led to some standardization, not necessarily of actual legal views (which remain diverse), but primarily of the sources of law. Disagreements among jurists after this point did not result mainly from possessing different pieces of evidence, but primarily from disagreements over the interpretation of these pieces of evidence.2 In contrast with this classical Sunni theory, modern Western and occasionally Muslim scholarship tends to question the authenticity of most Hadith (with a minority view extending this scepticism to the Qurʾan itself ). According to this scepticism, rather than being a formative source of Islamic law, Prophetic traditions post-dated legal views and cannot therefore be used to understand the formation of Islamic law. Instead, reflecting early points of view, these traditions, which regularly contradicted each other, are useful for our understanding of the development of Islamic law out of views that had already existed and been based on various factors and considerations, even if some of them were sincerely inspired by the Prophetic example. In this view, therefore, later hermeneutics did not just aim to interpret textual evidence, but also (and for some scholars primarily) to legitimize the views that legal schools inherited from their eponymous founders and their early followers.3 In other words, against the traditional assumption of Sunni scholars that substantive Islamic rulings (ah ․ka¯ m) had been derived from Islam’s textual sources using the tools of us․u¯l al-fiqh (the theoretical foundations of Islamic law), some or many modern scholars have suggested that us․u¯l al-fiqh was a relatively late development in Islam’s legal history and one that was used to render valid, retrospectively, rulings that had developed in various environments and on the basis of different sorts of sources. The next section will provide an overview of the hermeneutics of the Qurʾan and the Hadith as Muslim scholars have conceptualized the relationship between them as two textual sources 129

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of Islamic law. The discussion of this hermeneutics will be linguistic but also historical. The cases discussed below are old and have been largely settled within all schools of Islamic law. However, and in order to keep the chapter within a reasonable length, the following discussion will not delve deeply into the history of early legal disagreements and will avoid controversies in modern scholarship over the role of us․u¯l al-fiqh in the actual synthesis of Islamic law. The following discussion relies, more or less, on the classical Sunni theory on the formation and development of Islamic law.

2  The hermeneutics of the Qurʾan and the Hadith A scholar of Islamic law has argued that as it developed, Islamic law is textualist rather than positivist in nature; it seeks to ‘safeguard God’s law against the encroachments of human law-making’ by emphasizing the absolute supremacy of the legal texts (the Qurʾan and the Hadith) as the only authoritative and binding legal sources.4 As such, Islamic jurisprudence is primarily expository and exegetical. Through hermeneutics, it seeks to find evidence in the textual sources of the law and to reconcile what appears to be contradictory textual evidence. In this process, the same scholar continues, they assume that ‘a text may communicate a clear and obvious meaning entirely through the medium of language: no interpreter is needed to make that meaning any more final than it already is’.5 In the actual historical reality, however, things seem to have been different; Islam’s textual sources regularly generated hair-splitting debates among Muslim jurists in ways that challenge this view of the power of language to convey meaning on its own. Islamic jurisprudence is indeed expository, but only if exposition here means more than the texts appear to be saying for a scholar of Arabic semantics. The discussion below explains how an independent Muslim jurist (i.e. a jurist who does not follow the fixed legal views of any particular school of Islamic law), a jurist facing an issue that has not been resolved in his school, or a jurist investigating a case that has not been the subject of consensus (ijma¯ ʿ) among previous scholars, would typically deal with the Qurʾan and the Hadith as legal sources. This will be followed by a more detailed discussion of a case study that illustrates the complexities of the Qurʾan and the Hadith as both independent and complementary legal sources and offers a glimpse of the kind of considerations that Muslim scholars may have taken into account when interpreting these textual sources of Islamic law. When faced with a legal question, a Muslim jurist begins with collecting relevant pieces of evidence from the two textual sources of Islamic law, starting with the Qurʾan and moving on to the Hadith. More often than not, this jurist would face two related problems: a possible ambiguity in one or both of these sources, or a (presumably apparent) contradiction among the various pieces of textual evidence that he (usually “he”) identifies. To deal with these two problems of ambiguity and contradiction, that scholar would have to make use of a wide range of hermeneutic tools. The following are examples of these problems and tools. Starting with the Qurʾan, a frequent problem that jurists regularly face is the exact scope of Qurʾanic terms and statements. For example, according to Q. 4:23 (Forbidden to you [for marriage] your mothers, daughters, sisters … foster mothers, foster sisters …), foster mothers cannot be taken as wives by the babies whom they suckle. This verse raises a number of questions, foremost among which is the amount of suckling or the number of suckling sessions needed to establish a foster relationship, as well as how much milk is needed in each case. A ‘literal’ reading of this verse may suggest that even if a drop of milk passes through a baby’s mouth to his stomach, he becomes a foster son for the woman who has breast-fed him. 130

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Expectedly, however, Muslim jurists wondered if that situation was similar to the case of a boy who was breast-fed reguraly by a woman. Another question would be whether the milk has to be directly suckled by the baby rather than squeezed into a cup, for instance, from which the baby drinks. A third question would be whether the suckling person has to be a baby, rather than a toddler or even an adult. There are other questions that could be asked about this verse, but these hopefully suffice to demonstrate the ‘ambiguity’ that Muslim scholars may find when they deal with Qurʾanic evidence due to the un-specificity of its scope. Another kind of ambiguity that jurists may face when dealing with the Qurʾan is the indication of its imperatives; that is, what does an imperative (do!) exactly mean, absent any specific evidence? The three possible answers to this question are obligation, recommendation or permission. The imperative mode of verbs is potentially ambiguous because, without any internal or external evidence, it can, in and of itself, indicate any of these senses. For example, Q. 2:282 – which happens to be the longest verse in the Qurʾan, known as the ‘Debt Verse’ – says: ‘O you who believe, when you contract a debt for a fixed term, record it in writing.’ In addition to questions about the value of the debt meant in the verse (which again has to do with the issue of scope), an obvious question would be whether the addressees have to, are recommended to or are only permitted to record the debt in writing. Disagreement over the indications of Qurʾanic imperatives has divided Muslim jurists over numerous theoretical as well as substantive issues. Similarly, we may add, a Qurʾanic proscription (do not!), absent any evidence, may indicate complete prohibition or a mere recommendation to avoid something. Unlike the imperative, however, a proscription cannot denote the neutral category of permission. Being another textual source of Islamic law, the Hadith is not free of its own ambiguities, although Prophetic traditions tend to be straightforward in their meaning, which, interestingly, led some scholars to question their authenticity. A classic example of a controversy that arises out of a Prophetic tradition is the religious tax (zakat) imposed on livestock. In a tradition the Prophet is reported to have said that tax is due on livestock grazing in natural pasturage (sa¯ ’ima). A question that arises from this tradition is whether the tax is also due on livestock fed by its owner (and, accordingly, cost him more than the first category of livestock). Those who believe in the so-called argumentum a contrario hold that the argument from this tradition that non-grazing livestock is not subject to the religious tax is a valid inference. Others who do not accept this type of inference, however, do not find in the tradition itself a valid reference to non-grazing livestock and argue that the question whether it is taxable or not must rely on other pieces of evidence. As this example makes evident, some of the controversies over Qurʾanic and Prophetic statements result from differing views on valid and invalid inferences from these two textual sources.6 Muslim jurists have dealt with the linguistic challenges of the Qurʾan and the Hadith using various tools. In the case of the Qurʾan, most of these tools are external to the Qurʾanic text itself, although there are cases where a Qurʾanic verse is taken to explain the meaning of another. (It is noteworthy that, holding that ‘the Qurʾan explains itself ’, some jurists insist on explaining Qurʾanic statements by internal Qurʾanic evidence before resorting to evidence external to it.) In the case of the Hadith as an independent source of Islamic law, ambiguities in the Prophet’s statements are frequently settled by reference to his own practice. As a legal source complementing the Qurʾan, however, the Hadith is itself one of the most important tools that are used to deal with Qurʾanic ambiguities. We will discuss later an example that illustrates how evidence from the Hadith is used in dealing with ambiguities that arise from Qurʾanic statements, although we do not lack instances where the evidence from the Hadith seemed to contradict the Qurʾanic evidence on a particular case (thus complicating the issue 131

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rather than resolving it), or instances where some traditions contradicted other traditions dealing with the same subject (confirming, once more, scepticism on the origin of traditions). For now, we discuss two other tools used in Qurʾanic exegesis: the ‘causes of revelation’ (asba¯ b al-nuzu¯l) and abrogation (naskh). Presuming that the occasion which prompted the revelation of a certain Qurʾanic verse can provide clues for the intended meaning of this verse, Muslim jurists have compiled works that preserve reports about those occasions. A case in point is Q. 2:232: ‘And when you have divorced women and they have reached their term [i.e. ‘the waiting period’], do not prevent them from marrying their husbands if they agree among themselves according to maʿru¯f.’ 7 Without external clues, this verse is difficult to interpret. It is not clear, for instance, to whom ‘their husbands’ refers here, given that the women mentioned in the verse are already divorced and have completed their waiting periods.8 Reports about the circumstances which led to the revelation of this verse, however, removes any uncertainty about that which it seeks to convey. According to these reports, a man divorced his wife. After the end of her waiting period, he went to her guardian, who was her brother in most reports, and her cousin in one report, asking to re-marry her. The wife was happy with this offer, but her guardian refused and the verse was revealed. One thing we learn from this report is that the addressee in the first part of the verse (And when you have divorced women) is not the same addressee of the second part (do not prevent them …).9 Incidentally, this verse prompted a debate on another issue that may not be intended by the verse. Muslim jurists are divided between those who believe that only virgin girls cannot enter into a marriage without the consent of their guardians, whereas previously married women (divorcees or widows) can, and those who believe that any woman cannot get married without the consent of her guardian. The second group of jurists refer to Q. 2:232 for support, for the verse seems to imply that even non-virgin women still need their guardian’s approval; otherwise, the women in the report could simply have re-married their divorcee even if their guardian did not approve of the marriage. A possible interpretation, of course, is that although a woman could do that in principle, she still did not want to go against her guardian. We may wonder, however, how it was possible for Muslim jurists to debate this particular point, given that the verse is clear in that guardians should not prevent women from re-­m arrying their ex-husbands. But this is another example of a disagreement about the meaning of ‘do not’ here. Jurists who take this to indicate complete prohibition would say that guardians cannot prevent women from re-marrying. In other words, if they do prevent them, they would be violating a Qurʾanic rule. But would this make them only sinners, in the religious sense of the word, or put them under the purview of the law that the judge or ruler can enforce? On the other hand, jurists who take this to be a mere admonition would say that guardians can still prevent women from re-marrying and those women cannot in that case re-marry their ex-husbands against the will of their guardians, assuming, again, that even a previously married woman must secure the approval of her guardian to re-marry. In this reading, failing to obey the Qurʾanic proscription would make one a sinner. Jurists making this argument may find support in the remainder of the same verse, ‘with this [the command in the verse] is admonished he among you who believe in God and the Last Day; this is more virtuous for you and purer, and Allah knows and you do not’. Another tool that jurists employ in interpreting the Qurʾan is abrogation (naskh). According to this, God has changed some of His laws when He revealed the Qurʾan to the Prophet Muhammad over 22 years. Accordingly, if two Qurʾanic verses appear to be in sharp contradiction to each other and cannot be reconciled, a jurist can assume that one of them must have abrogated the other. The challenge here is to know which verse is abrogated and 132

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which abrogating. The Qurʾan itself is not helpful here because its chapters (su¯ras) and verses (a¯ yas) were not recorded according to the order of their revelation. (It is believed that every time he came to the Prophet with a new revelation, Gabriel would tell him about the exact location of that revelation in the Qurʾan, which could be anywhere.) Reports from early authorities (such as the Prophet Muhammad’s Companions and their followers, the ta¯ biʿu¯n) are not usually decisive here, which is why abrogation was and remains a contentious issue among jurists, and those who accept it (the majority) regularly disagree on the verses that each of them believe were abrogated.10 A classical example of abrogation is Q. 2:184: ‘And for those who can do it [i.e. fast during the month of Ramadan, but do not fast] is a ransom, the feeding of a poor person.’ From reports about the time when Muslims began to fast during Ramadan, we learn that fasting was optional. Those who are capable of fasting but do not want to fast can feed a poor man for every day of Ramadan in which they do not fast. This option was later abrogated by Q. 2:185, ‘And whosoever of you is present in the month, let him fast it.’ Now, every Muslim has to fast all days of Ramadan and cannot choose not to fast in return for feeding a poor person.11 Another oft-cited example of abrogation is Q. 3:43: ‘O you who believe, do not approach prayer when you are drunken’, a verse that jurists unanimously agreed has been abrogated by Q. 5:90, ‘O you who believe, intoxicants and gambling … are an abomination of Satan’s work, so leave it aside that you may be successful.’ According to the first verse, Muslims can drink provided that they are not drunk at the times of the five daily prayers. After the revelation of the latter verse, they are not allowed to consume intoxicants at any time, according to the dominant view in Islamic jurisprudence.12 It must be pointed out that reports about the causes of revelation of certain verses or of the abrogation of other verses can and have been rejected by some jurists and accepted by others. The rejection of these reports is based on the same ground that led some jurists to reject traditions transmitted by single t­ ransmitters – that is, the authenticity of these reports are only probable at a time when they are used to interpret Qurʾanic verses (qualifying them at times and contradicting them at other times) that may otherwise appear clear in meaning. Against the view predominant in Sunni Islam, some jurists, in early and modern Islamic history, have insisted that traditions and reports that significantly qualify or contradict a Qurʾanic verse must be rejected as unauthentic.

3  The Qurʾan and the Hadith in action: the case of Q. 5:38 As mentioned previously, in the classical Sunni narrative of the development of Islamic law, the Prophet Muhammad, through his Sunnah (practice) and Hadith (sayings), was the source of the meaning of the Qurʾan. In this narrative, Q. 16:44 (‘And We have revealed to you the Reminder that you may make clear to mankind that which has been revealed to them’) assigns to the Prophet the role of explaining the Qurʾan to his followers. ‘Wisdom’, in Q. 4:113 (‘And Allah has revealed to you the Scripture and [the] wisdom’) is taken to refer to the Prophet’s Sunnah/Hadith, which is considered as both an independent source of the law as well as a practical embodiment and verbal elaboration of the teachings of the Qurʾan. Q. 35:3–4 (‘Nor does he speak out [of his own] desire. It is naught but revelation that is revealed’) guarantees, in this view, that whatever the Prophet says, pertaining to religious matters, as Muslim scholars took the verse to mean, is divinely sanctioned and is not a product of his own personal inclinations and views. On the other hand, many modern (Muslim and non-Muslim) scholars of Islamic law hold that the Prophet’s Sunnah was only one of many normative sunnahs that existed in early Islam, and that a considerable amount of Hadith (if not all of it) was not in fact uttered by 133

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Prophet Muhammad himself. An explanation that some of these scholars provide for the wholesale fabrication of Hadith in early Islam is precisely its usefulness as a hermeneutical tool: Hadith was needed to interpret the Qurʾan and settle disagreements about its meaning. This process sought at times to circumvent the ‘literal’ reading of some Qurʾanic rulings or to legitimize legal views that had already existed from early Muslim generations, as has been pointed out earlier. In either case, in its capacity as ‘elucidator’ of the Qurʾan, the Hadith came to be, among other things, a major determinant of the meaning of the Qurʾan, a regular modifier of some of its rulings, and a source of knowledge of the abrogated and abrogating verses. Setting aside the issue of when the Hadith actually became a source of Islamic law, the following example aims to illustrate its role as a legal source alongside the Qurʾan, assuming that the traditions found in medieval works of Islamic jurisprudence were available to early Muslim jurists. Q. 5:38 (‘As for the thief, male or female, cut off their hands as a punishment for what they have earned’) prescribes cutting off the hands of thieves. A ‘literal’ reading of the word thief in this verse would include in its scope any person who unlawfully takes anything that is not his or her. If taken literally, in this sense, this verse would mean that a person who steals even a penny is punished in the same way as a person who steals a large sum of money. Similarly, a starving person stealing to remain alive would be punished in the same way as an evil person who steals out of mere greed. Readers of this verse may also ponder the case of someone taking something that he does not assume to be the personal property of anyone, while it may be obvious for its owner and for others that it belongs to someone. Theft, similar to all human phenomena, has its grey area, and its demarcations may differ from one culture to another. In addition to the Qurʾanic ruling on theft, Muslim jurists had other pieces of evidence to use. The verse and these pieces of evidence generated many controversies on various aspects of theft and its Qurʾanic punishment. Suffice it to mention that this subject is discussed in a medieval work of Islamic jurisprudence – al-Mughni of the Hanbali scholar Ibn Qudama al-Maqdisi – in a large number of pages.13 In addition to Q. 5:38, Ibn Qudama mentions many Prophetic traditions. In one of these, the Prophet states explicitly that as a punishment prescribed by God, cutting off the hands of thieves cannot be averted and would be applied even to the Prophet’s own daughter if she were to commit theft. The command in the verse (cut off ), then, denotes obligation. In another tradition, the Prophet says that this punishment is carried out only if the value of what is stolen exceeds a quarter of a dı¯na¯ r, a gold coin used in the Prophet’s time. In a third tradition, the Prophet states that the Qurʾanic punishment for theft does not apply to embezzlement (ikhtila¯ s) or treachery (khiya¯ na), obviously in financial transactions. Furthermore, the Prophet states that neither does that punishment apply to stealing fruits that are still on the trees, or to denying an item that one has borrowed from another ( jah ․d al-ʿa¯ riya). In yet another tradition, the Prophet mentions the conditions under which a person stealing fruits would be punished. According to this, the fruits have to be collected in a container, the unlawful taking of which constitutes theft. But in addition to these textual sources, the bulk of Ibn Qudama’s discussion of theft reports views of early Muslim scholars on various aspects of the crime and its punishment. We have seen that the Qurʾan speaks about theft without defining it. Nor is it defined in any Prophetic tradition. It becomes the duty of jurists, then, to define it, which they did elaborately. Theft is not defined as simply taking something that belongs to another. The item that is taken must be kept in a safe place for its removal and appropriation from that place to be considered theft. Accordingly, and perhaps inspired by the tradition that distinguishes between theft and embezzlement, jurists decided that all forms of misappropriation, malfeasance, fraudulence, chicanery and other acts that involve taking something that belongs to 134

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others do not constitute theft. Even looting, plundering and pick-pocketing were controversial, for the money or property taken in these cases is not stealthy removed from a safe place where its owner has kept it, as these jurists understood theft. Furthermore, we have seen above that the Prophet states that whereas taking fruits from the trees is not theft, taking them from a container is. Jurists used this and other pieces of evidence to develop the notion of ․hirz: a safe place where one keeps his money and valuable items. The ․hirz not only removes any doubt about the ownership of the stolen item, but it also proves that the thief had the will and made the effort required to steal it. But if that is so, then ․hirz itself has to be defined. This was done by the jurists in a way that demonstrates their awareness of how the notion of ‘safe place’ can only be culturally defined. In other words, what is considered a safe place to keep one’s valuables in a certain locale or region may not be considered as such elsewhere. Ibn Qudama says unequivocally that that which is considered ․hirz depends on [local] customs (al-h․irz ma¯ ʿudda ․hirzan fı¯-l-ʿurf ).14 From his lengthy treatment of this point we can conclude that it is only the taking of things that are protected or supervised that can be treated as theft. The negligence of the owner to protect his or her property may in fact absolve the thief.15 In addition to this, jurists insisted that whatever is stolen must be money or something equivalent to it. Stealing a slave, for example, is thus theft, but kidnapping a free man is not (unless it happens that he carry items that exceed the quorum of theft mentioned above, a quarter of a dı¯na¯ r). Here, a full list is given of items that are not considered money or equivalent to it. Water, for instance, cannot be stolen, for it is usually something that people share, or perhaps something that people should not refuse to share. A copy of the Qurʾan cannot be an item for theft, for the Qurʾan, in one view, should not be put on sale to begin with (and again, it may be something that should not be denied a Muslim). Nor would things prohibited in Islam qualify as items that can be stolen; for example, wine, pigs or even musical instruments (the prohibition of which is a subject of controversy in modern Islam, of course). The assumption here is that these items have no value in an Islamic society. Ibn Qudama mentions views on other aspects of theft. Just as theft does not apply to certain items, it similarly does not apply to certain individuals. These individuals include parents who take their children’s property. This is based on a Prophetic tradition in which the Prophet tells someone: ‘You and what you own belong to your father.’ This rule was inevitably extended to mothers. Added to the list of persons who cannot steal are sons, spouses and, in some views, any person that a man cannot marry (which would include relatives by blood or marriage). The logic of this last category is that these relatives may believe that they are entitled to take the property of their relatives.16 The list also includes slaves, most likely on the assumption that a slave may not know what he is allowed to take and what not, or that no part of his master’s house could constitute a ․hirz for someone actually living in the house. Finally, the list includes any Muslim stealing from the public treasury, for he may believe himself entitled to take the money given that he does have a share in the treasury. And of course, a person who is starving cannot be punished for theft if he takes something to feed himself. Among the other conditions that must be met so that a removal of something can be considered theft is that the person whose property is stolen has to claim it. The implication here is that person may deny his ownership of the property or refrain from asking for it; in either case the thief is spared. Furthermore, if the owner of the property testifies that the stolen item actually belonged to the person believed to have unlawfully taken it, that person is again absolved.17 Now proceeding to the actual punishment, Ibn Qudama mentions that the hand of a thief is cut off only when two reliable witnesses testify against him or if he confesses. In the former case, the witnesses have to describe in clear detail the item allegedly stolen and the safe place 135

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where it was kept. If these witnesses disagree on any detail, their testimonies are rejected and the punishment is not inflicted.18 As for the latter case – confession – the person has to confess twice or thrice (and in the case of a slave, four times), based on a tradition where the Prophet asked a person twice or thrice if he had indeed committed theft. Furthermore, in his confession, the defendant has to describe the theft and the stolen item elaborately.19 It is striking, however, that a defendant is neither encouraged to confess, nor prevented from withdrawing his confession before the infliction of the punishment. In the tradition just mentioned, the Prophet puts the question to the person admitting theft in these words: ‘I do not believe that you have committed theft’, a wording from which jurists understood that the Prophet was trying to dissuade the person from confessing. Jurists, therefore, should actively encourage thieves to abstain from confession (on the obvious assumption that they return the stolen items and repent), Ibn Qudama says. Furthermore, if the case between the thief and the person whose property is stolen is settled before it reaches the ruler, the punishment cannot be inflicted.20 And even after the confession, the person whose property has been stolen must go to the judge or ruler and claim his property,21 as has been pointed out previously. Finally, the actual cutting of the hand must be implemented in the least painful way. Cutting should not be implemented in extreme weather, warm or cold. The punishment cannot be inflicted upon a sick person or on a pregnant woman, for this would cause harm to both herself and her innocent baby.22 And if a person steals multiple times and then gets caught, only one of his hands are to be cut off,23 and if he happens to have one hand (the other being already cut or paralysed), he is absolved from the punishment.24 Some jurists have also expressed preference to cut off the left rather than the right hand, the latter being the more useful for most people.25 And if a thief steals, has one of his hands cut, and steals again, his leg rather than his other hand is to be cut. Despite a tradition where the Prophet is reported to have said that after cutting one hand, a leg is cut followed by the other hand followed by the other leg (and then execution), ʿAli b. Abi Talib is reported to have said that cutting the other hand is tantamount to murdering the thief, for without either hand he would not be able to eat or wash himself.26 This overview of the aspects of theft that Muslim jurists discussed may give readers an impression that they were motivated by a desire to avert the rather severe and irrevocable Qurʾanic punishment for theft. This, of course, remains a strong possibility that can be evinced by their insistence that the cutting cannot be an occasion to further torture the thief, or that the thief may not have his other hand cut if one of his hands is already cut or paralysed, or, more significantly, that the thief should be encouraged to either not confess or withdraw his confession. What these jurists seem to be doing is restricting the definition and conditions of theft while broadening the categories of people who cannot be treated as thieves even when they appear to be stealing. Additionally, these jurists seem to be advocating the abstention from inflicting the punishment in the existence of any doubt. To fully understand this point, there is another tradition that is present everywhere in Ibn Qudama’s discussion of theft although in this particular context he does not attribute it to its presumed origin, the Prophet Muhammad. In a tradition that is crucial in all discussions over Qurʾanic punishments (h․udu¯d), the Prophet is reported to have said that these punishments should be averted by doubt (shubuha¯ t). The word that the Prophet uses for doubt is in the plural, suggesting that it includes various forms of doubt. Applying this rule to our subject, jurists insisted that to inflict the Qurʾanic punishment for theft, it must be proven beyond doubt that the act of the person accused of theft does indeed fall within the category of theft, which, as we have seen, is defined in a way that excludes many acts that we would otherwise regard be regarded as [a kind of ] theft. Furthermore, it 136

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must be confirmed that the item stolen had reached the required value at the time of the act, that it was absolutely clear that the item belonged to someone (which requires that it be kept in a safe place, or ․hirz), that it is something of value in the person’s social context, and that the owner of the item confirms that it has been stolen from him. Furthermore, and perhaps more significantly, the person accused of theft cannot be one who may believe himself entitled to take that which he is accused of having stolen. If a jurist, now acting as judge, has any doubt regarding any of these points, he must, according to this generous reading of the tradition, rule out the punishment prescribed in the Qurʾan. This overview of the juristic discussions over various aspects of theft is, admittedly, selective. There is no claim here that Muslim jurists agreed that pick-pocketing, for example, is not theft, or that taking the property of a blood relative is not theft. Muslim jurists disagreed on almost all these issues. They also disagreed over some of the Prophetic traditions mentioned in the context of this subject for the reasons mentioned earlier; particularly, their disagreement over the authenticity of some of these traditions and on whether they should be used to qualify the Qurʾanic verse, which they accept as the primary source of the ruling of Islamic law on theft. Jurists who disagreed with any of the views presented above appeal primarily to the generality of the Qurʾanic verse and reject as un-authentic Prophetic traditions used by other jurists to qualify certain aspects of theft (such as its definition) or to make its conditions too stringent to be easily applied. Even when they accepted the same traditions, there was still room for disagreement over their meaning, relevance and applications. For example, whereas scholars accepting the tradition about embezzlement and treachery had to exclude these from the category of theft, they did not need to exclude other acts based on analogy with the acts that the Prophet has mentioned. And even when all jurists have accepted the ‘Avert the ․hudu¯d on the basis of doubt’ tradition, what constitutes doubt remained a subject open for discussion. Although jurists were clearly following and seeking inspiration from the textual sources at their disposal, their treatment of this subject demonstrates that the process of using these sources was quite complex, to say the least. A last point to make is this: to understand the Qurʾan and the Hadith, Muslim scholars knew that they needed to authenticate their understanding of the Arabic language by examining how the Arabs used their language at the time of the revelation of the Qurʾan. We see this clearly in al-Shafiʿi’s Risala, a work on legal theory that is generally considered, by medieval Sunni scholars and some modern scholars, the first of its kind. But this was not as straightforward as it may sound, not only because the sources available for these jurists on the use of Arabic at the time of revelation were limited (primarily pre-Islamic poetry), but also because they knew that there were no strict or standard linguistic conventions or lexical definitions. The Hadith, as an exegetical tool, was thus crucial to explaining Qurʾanic statements, implying that these statements were not completely clear even to the immediate audience of the Qurʾan. Accordingly, failing to find evidence for a clear definition of theft at the time of the Qurʾan, these jurists realized that they had to define it in ways that contravene Weiss’s view on the ability of language to convey meaning without interpretation. It is true that language here determined the kind of offence that we are dealing with, but it did that in terms that jurists found, or liked to find, very unspecific. When people heard the word theft in the verse they did realize that they were dealing with a specific kind of criminal offence. It is not anything that we would call murder, rape, adultery or blasphemy, for example. However, they were also demonstrably aware that certain acts (such as embezzlement, usurpation or pick-pocketing) may not fully correspond to the ‘ideal type’ of theft, whatever that may be. Here, interpretation is indispensable, and this interpretation cannot occur within the gamut of the text itself, for there is no such gamut to begin with absent evidence for a 137

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water-tight definition of theft. Here, legal reasoning, cultural norms, social considerations and notions of justice all contribute to the process of assigning meaning to the texts. In this, the Qurʾan and the Hadith are simply similar to all other legal texts.

Conclusion This chapter has outlined how the Qurʾan and the Prophet Muhammad’s Sunnah/Hadith were used as Islam’s primary legal sources. It has given specific examples that illustrate some of the intricacies of each of these two sources as well as the relationship between them as complementary legal sources. What we have seen in this chapter is this: the Qurʾan states a ruling, typically in general terms, or in terms that are made to look general; the Hadith is used to qualify the Qurʾanic ruling in various ways; and Muslim jurists regularly problematize the subject on the basis of their linguistic and hermeneutical conventions, their social and cultural values, and their understanding of the objectives of the legal sources. Readers of this chapter hopefully realize now that, more often than not, it is not only inaccurate, but is actually utterly wrong to present a ruling as Islam’s ruling on a given subject based on what the Qurʾan says or what the Prophet Muhammad says. What these two sources ‘say’ have to be, have been and will continue to be worked out by Muslim jurists, in multiple and varied ways typical to Islam’s legal history. This leads us to a crucial aspect of Islamic law, and one that is intimately related to the hermeneutics of the Qurʾan and the Hadith as legal sources. Most Muslim jurists believe that the results of their engagement with these textual sources are probable rather than certain. This understanding has resulted in much tolerance to differing readings of these texts and of conflicting legal views, as long as they ensue from a studious and informed effort to work out the intended meanings of these texts. As Weiss has put it, ‘a tentatively constructed rule has the full force of a bona fide rule of law if the exegesis upon which it is based is diligent and conscientious’.27 Muslim jurists, however, were not nihilists; they did believe that if language is used soundly (that is, according to its conventions) in a certain text, then this text has a basic meaning. This is what makes revelation, and indeed any communication, possible, as Weiss rightly points out. However, this does not mean that there is no room for disagreement over deeper layers of meaning. Furthermore, given that Muslim jurists, more often than not, do not work with a single textual evidence, the question of how to reconcile various and different pieces of evidence requires, by necessity, that the meaning of each one of them be worked out in relation to other texts. It is this process of reconciliation that makes it possible for jurists to even change their views on certain issues. If we add to this the uncertainty mentioned above regarding the transmission of the Hadith, the end result is a legal system that readily recognizes and acknowledges its uncertainties, but also boasts its excellence within the perceived parameters of human capability and rationality. This notwithstanding, a minority view in Islam’s legal history has held that if the conventions of the language of communication are stringently followed (presumed to be the case with the Qurʾan and the Hadith), then we can use these same conventions to understand the meaning intended by the speaker (God, directly or indirectly in both textual sources of Islamic law) with complete certainty. In this view, two readings of the same text (again assuming that the speaker uses language soundly, in the sense of following its conventions) cannot be simultaneously valid. This view was best presented by scholars of the Zahiri madhhab, a school of Islamic law whose hermeneutics is generally believed to be ‘literalist’, a notion that recent scholarship finds problematic. Consistent with this approach to language is the Zahiri conviction that traditions transmitted by single transmitters still establish absolute or apodictic knowledge 138

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provided that their reliability is established. This belief in the necessity of certainty is organically linked to some theological views, particularly the notion that it contradicts divine justice to hold believers accountable for not following texts with inherently uncertain meaning. This view, however, has barely survived in the soil of the legal system the textual sources of which are the Qurʾan and the Hadith.

Notes 1 See, for instance, Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oxford: Oneworld, 2009), 150–1, and Daniel W. Brown, Rethinking Traditions in Modern Islamic Thought (Cambridge: Cambridge University Press, 1996), 43–4. See also Ahmad Hasan, ‘The Sources of Islamic Law’, Islamic Studies 7, no. 2 (1968): 176, and Bernard Weiss, ‘The Primacy of Revelation in Classical Islamic Legal Theory as Expounded by Sayf al-Din al-Amidi’, Studia Islamica 59 (1984): 83–4. 2 On the view that disagreement was always on the interpretation of sources rather than on the question of whether to accept them in principle, see Hasan, ‘The Sources of Islamic Law’, 176. 3 For this, see, for instance, Sherman Jackson, ‘Fiction and Formalism: Toward a Functional Analysis of Us․u¯l al-Fiqh’, in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden: Brill, 2002). 4 Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dı¯n al-A¯midı¯ (Salt Lake City: University of Utah Press, 2010), 87. 5 Ibid., 94. 6 For the views of medieval Sunni jurists on the issues of the scope of terms and denotation of the imperative, see Weiss, The Search, 382–439 and 322–81, respectively. See also Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta, GA: Lockwood Press, 2013), 60–96. 7 The rather challenging term maʿru¯f can be and is translated variously according to each translator’s understanding of its meaning. Translations include ‘in kindness’, ‘lawfully’ and ‘equitably’. This in itself is an example of a Qurʾanic term that has been interpreted in various ways by Muslim exegetes and one that has not been duly explained in any Prophetic tradition. 8 The ‘waiting period’ is usually three menstrual periods, during which the divorce is not final and husbands can, unilaterally, ‘return’ to their wives. 9 Muslim exegetes mention a reading of the verse that is obviously not based on the reports about the causes of revelation of this verse. According to this, the addressee in the verse is one. He is the ex-husband of the woman and happens to be her guardian at the same time (e.g. her cousin). What the verse says is that if he divorces her he should not (cannot?) prevent her from marrying another person so as to, according to the jurists offering this reading, inherit her property should she die. We may wonder, of course, why the Qurʾan calls that other person a husband when he is not yet married to the woman. No wonder that this reading has not fared well in Islamic jurisprudence. 10 This subject, we may note, has a direct link to the subject of the occasions of revelation. Crucial to the notion of abrogation is the chronology of revelation, knowledge of which requires knowledge of when each verse was revealed, for which reports about the occasions of revelation may be helpful. 11 It must be added here that Q. 2:185 addresses the question of the sick and of travellers. According to this verse, they should make up the missed fasting days at a later time. 12 For more on this subject, see A. J. Wensinck’s discussion of the ‘juridical aspects’ of ‘khamr’ (intoxicating beverages) in Encyclopedia of Islam, 2nd edn (1960–2007), vol. 4, 994–7. 13 Ibn Qudama al-Maqdisi, Al-Mughni, vol. 12 (Riyadh: Dar ʿAlam al-Kutub, 1997), 415–72. 14 Ibid., 427. 15 Ibid., 426–39. 16 The reason why this belief changes the way their act is interpreted will be explained later. 17 Ibid., 452. 18 Ibid., 464. 19 Ibid., 465. 20 Ibid., 467. 21 Ibid., 471. 22 Ibid., 442. 23 Ibid., 443. 139

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24 25 26 27

Ibid., 448. Ibid., 445. Ibid., 446–7. Weiss, ‘The Primacy of Revelation in the Classical Islamic Legal Theory as Expounded by Sayf al-Dîn al-A¯ midî’, 96–7.

Select bibliography and further reading Brown, Jonathan A. C. Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oxford: ­Oneworld, 2009). Burton, John. An Introduction to the Hadith (Edinburgh: Edinburgh University Press, 1994). Gleave, Robert. Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory (Edinburgh: Edinburgh University Press, 2013). Hallaq, Wael B. The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005). Ibn Qudama al-Maqdisi. Al-Mughni (Riyadh: Dar ʿAlam al-Kutub, 1997). Mattson, Ingrid. The Story of the Qurʾan: Its History and Place in Muslim Life (Oxford: Blackwell Publishing, 2008). Motzki, Harald (ed.). Hadith: Origins and Development (Farnham, Surrey: Ashgate Publications, 2004). Motzki, Harald. Analysing Muslim Traditions: Studies in Legal, Exegetical, and Magha¯ zı¯ Hadith (Leiden: Brill, 2012). Osman, Amr. The Z ․ a¯ hirı¯ Madhhab (3rd/9th–10th/16th Century): A Textualist Theory of Islamic Law (Leiden: Brill, 2014). Peters, Rudolph, and Bearman, Peri. The Ashgate Research Companion to Islamic Law (Farnham, Surrey: Ashgate Publications, 2014). Rippin, Andrew, and Knappert, Jan (ed. and trans.). Textual Sources for the Study of Islam (Chicago: Chicago University Press, 1986). Saeed, Abdullah. Interpreting the Qurʾan: Towards a Contemporary Approach (London and New York: Routledge, 2006). Weiss, Bernard G. ‘The Primacy of Revelation in the Classical Islamic Legal Theory as Expounded by ¯ midî’. Studia Islamica, 59 (1984): 79–109. Sayf al-Dîn al-A Weiss, Bernard G. The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dı¯n al-A¯midı¯ (Salt Lake City: University of Utah Press, 2010). Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Exeter: Lockwood Press, 2013).

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7 The emergence of the major schools of Islamic law/madhhabs Labeeb Ahmed Bsoul

From prior to the first quarter of the second century to the mid-third century AH (eighth– ninth century AD), reports and transmitted legal opinions reflected variant legal rulings. The Companions issued legal opinions in accordance with what they had heard from the Prophet, and the Successors followed their example by relating what they had heard from the Companions.1 This practice, conducted through various methods of interpretation, was based on the principle of tolerance, because no fixed methodological interpretations existed at that time, only the doctrine of ʿAtaʾ b. Yasir (d. 103/721), the doctrine of the Medinan jurists, and similar groupings.2 Thus both generations utilized what existed: the statements and opinions of the Prophet and the early Companions, as well as their own Ijtiha¯ d. Differences of opinions naturally arose, for not all of them possessed the same level of knowledge and conservation, the same method of reasoning/diligence and consideration, or the same model of understanding and elicitation.3 The following generation of jurists wrote down their schools’ doctrines in order to account for and explain the preceding information. They focused on the knowledge produced in their regions: Malik b. Anas focused on the learning of Medina, al-Shafiʿi on that of Mecca, Abu Hanifa and Sufyan al-Thawri on that of Iraq, al-Awzaʿi on that of Syria, and alLayth b. Saʿd on that of Egypt.4 Ahmad b. Hanbal and Dawud b. ʿAli, who emerged in the ninth century and whose schools of thought were codified and followed, had a reverse impact on the jurisprudential direction of Baghdad.5 These regionally significant jurists formulated the crucial elements of raʾy, or considered opinion, and athar, or traditional material.6 Several of these jurists are considered to be founders of schools of jurisprudence, including Sufyan b. ʿUyayna (d. 198/814) of Mecca, the ‘scholar of the Hejaz’; Ishaq b. Rahawayit (d. 238/852), the ‘scholar of the East and Khurasan’; and Abu Thawr Ibrahim b. Khalid (d. 240/854), a prominent Baghdadi jurist. These schools of legal thought were those of ahl al-Sunnah, the majority of Muslims, but not all of them were fully codified. Some were only partially codified, and others were never codified. Their opinions and views were noted, yet because their disciples did not write them down, the only record of their existence is in the works of other jurists. The surviving legal schools are based on the legal thought of the Sunni jurists Abu Hanifa, Malik, al-Shafiʿi, and Ibn Hanbal. Other surviving schools of that era are the Ima¯ mı¯ or Twelver Shiʿi school, attributed to Jaʿfar al-Sadiq (d. 148/765), the Zaydi 141

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Shiʿi school, attributed to the Imam Zayd ibn ʿAli (d. 122/740), and the Ibadi Khariji school, attributed to ʿAbdullah b. Ibad al-Tamimi (d. 80/699) and still followed by some Tunisians, Algerians, and Omanis. These founding figures, later jurists, and the related processes of recording legal scholarship, deriving subsidiary rulings using the principles of legal hermeneutics (us․u¯l al-fiqh), and the application of the law will be given below.

The first leading jurisprudent: Abu Hanifa al-Nuʿman (150/767) Abu Hanifa al-Nuʿman b. Thabit b. Zuti al-Kufi (80–150/699–767)7 was ‘the master of the adherents of personal judgement (imam ahl al-raʾy)’ and ‘the jurist of Iraq’. He was one of Islam’s most distinguished figures and the founder of the Hanafi school. He was born in Kufa and lived for 52 years under the Umayyads, and for a further 18 under Abbasid rule. During this period, the Companions Anas b. Malik in Basra, ʿAbdullah b. Abi Awfa al-Ansari in Kufa, Abu al-­ Tufayl ʿAmir b. Wathila in Mecca, and Sahl b. Saʿd al-Saʿidi in Medina were still alive, though extant literature contains no definitive report about any of them. However, such Successors as al-Shaʿbi, al-Nakhaʿi, and ʿAli b. Husayn were also present. However, Abu Hanifa did not seek out their knowledge, for at that time he was a silk fabric tailor who had his own workshop. Abu Hanifa was a disciple of al-Hakam b. ʿUtayba, the grand master of Kufa, and studied for 18 years under Hammad b. Abi Sulayman, who transmitted material from Ibrahim al-­Nakhaʿi and ʿAmir al-Shaʿbi. Drawn to the jurisprudence characteristic of Kufa, which was based on analogical reasoning (qiya¯ s) and personal judgement (raʾy), he succeeded Hammad upon his teacher’s death. He was familiar with Meccan jurisprudence through ʿAtaʾ b. Abi Rabah, the jurist of the Successors and the leader of what had been Ibn al-ʿAbbas’s study circle in the Grand Mosque. He learned Medinan jurisprudence through Shihab al-Zuhri, who memorized the learning of ‘the seven jurists’ of Medina, Nafiʿ, the chief transmitter of material from the renowned hadith scholar ʿAbdullah b. ʿUmar, Muhammad b. al-Munkadir, the distinguished Qurʾanic reciter, and the jurist and Qurʾanic reciter Yahya b. Saʿid al-Ansari. He was also in touch with the three leading masters of Ahl al-Bayt: Zayd b. ʿAli, Muhammad al-Baqir b. ʿAli b. al-Husayn, and his son Jaʿfar al-Sadiq. The prominent scholars Sufyan al-Thawri and ʿAbdullah b. Mubarak testified that he had the widest range of jurisprudential knowledge of his time, a view echoed by al-Shafiʿi and Malik. People said that all previous jurisprudents were like children compared to him, and that whoever was looking for a serious debate should go to him. Abu Hanifa, distinguished by his expansive use of analogical and deductive reasoning (istinba¯․t), dedicated his efforts to imposing and estimating the occurrence of cases. He often employed rational argument and was open to learning opinions superior to his own. When he encountered one, he would allow it to be presented and then adopt it. When he debated with other jurists about legal analogy, they would often agree with him out of fear that he would persuade his opponent. The Caliph al-Mansur twice offered him an official position. Yazid b. ʿUmar b. Hubayra, the Umayyad deputy in Iraq, had him whipped when he declined to serve as judge in Kufa. When Abu Hanifa refused the caliph for the second time, the latter jailed him and let him die in prison. It is reported that the caliph poisoned him for his affiliation with Ibrahim al-Nakhaʿi, and thus he is considered a martyr. Abu Hanifa explained his approach to Ijtiha¯ d as follows. He would adopt what was in the Qurʾan, provided that it applied directly to the issue at hand. If he did not find anything applicable, he would then consider the authentic Prophetic Sunnah and, if he found nothing there, the sayings of the Companions. Of these sayings, he would adopt that which was relevant and ignore the rest. He followed the opinions of the Companions up until Ibrahim al-Nakhaʿi, al-Shaʿbi, Ibn al-Musayyib, and other trustworthy figures. Overall, Abu Hanifa 142

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relied on the Qurʾan, the Prophetic Sunnah, consensus, legal analogy, the Companions’ sayings, juristic preference (istih․sa¯ n), and custom (ʿurf ). His disciples realized that his methodological approach, as well as the secondary bases of his doctrine, derived from the opinions he had constructed to address specific cases. Some scholars criticized his approach and doctrine, which depended on devising legal rules to overcome certain limitations (al-makha¯ rij min al-mad․a¯ yiq). Al-Bukhari allocated a special section to Abu Hanifa’s views in his famous collection of hadith, al-Jamiʿ al-Sahih. Abu Hanifa stressed the acceptance of those hadiths that supported his use of analogy and personal judgement, but declined to accept solitary traditions (akhba¯ r al-a¯․ha¯ d) on account of their problematic nature. He preferred analogy and treated it as superior to solitary reports. According to Ibn ʿAbd al-Barr, this caused many hadith scholars to criticize him in an extreme manner. But his disapproval of solitary reports was inevitable because he accepted interpretation. Al-Layth b. Saʿd also disapproved of Abu Hanifa’s use of hadith, as one can see from his correspondence with Malik. Regarding the 70 questions he gathered, he noted Abu Hanifa’s violations of the Sunnah.8 In his Introduction to History, Ibn Khaldun indicated that Abu Hanifa used approximately 17 hadith reports and tried to explain why he adopted a methodological approach that subjected hadith to strict conditions of transmission. Moreover, Abu Hanifa responded to his critics regarding his limited incorporation of hadith by stating that it did not affect one’s doctrine because the Shariʿah is derived from the Qurʾan and Sunnah. Those who claim that he referred less frequently to hadith should examine the hadith literature’s authority seriously in order to reach authentic rulings.9 Abu Hanifa’s lack of reliance on hadith reports was due to his negative assessment of their reliability. He rejected most reports on account of inherent defects and especially the criticism of transmitters on account of defects of character, which required Ijtiha¯ d to avoid using weak or unauthentic hadiths. This responsibility fell upon the mujtahids, as they specialized in this field. Wakiʿ b. al-Jarrah, the hadith authority of Kufa, agreed with Abu Hanifa’s opinion and transmitted many of his hadiths.10 Yahya b. Saʿid al-Ansari, who preferred Abu Hanifa’s legal opinions, said, ‘We have never heard better judgment than that of Abu Hanifa’. Yahya b. Maʿin, a leading hadith authority, also favored Abu Hanifa’s opinion and praised his qualities, as did ʿAbdullah b. Mubarak, Sufyan al-Thawri, Makki b. Ibrahim, al-Shafiʿi, and ʿAbdullah b. Dawud.11 Despite the many attestations to Abu Hanifa’s wide knowledge in the field, questions did exist about his jurisprudence, and concerns were raised about his disciples and their responsibility for recording his work. It appears that many legal works were published in different regions during this period. One such work was a book on religious obligations by Ibn Abi Layla, the chief mufti and judge of Kufa, who employed personal judgement in his legal responsa.12 According to Ibn al-Nadim’s Fihrist, Ibn Jurayj, a prominent Meccan scholar, wrote Kitab al-Sunan, which consisted of many chapters on purification, fasting, prayers, and alms-giving.13 Similarly, al-Awzaʿi’s works Kitab al-Sunan fi al-Fiqh and Kitab al-Masaʾil fi al-Fiqh were also published.14 Therefore, it is very likely that a prominent scholar such as Abu Hanifa would have had similar published works. This supposition corroborates the statements of some medieval scholars such as al-Khatib al-Baghdadi that Abu Hanifa authored books on fiqh.15 Ibn Kathir, in his al-Bidayah wa-l-Nihayah, noted the report about ʿAbdullah b. Mubarak keeping in his house a book authored by Abu Hanifa which he used to resolve issues and which he showed to al-Awzaʿi. ʿAbdullah b. Mubarak stated, ‘Without God and help from Abu Hanifa, I would be the same as other people’.16 According to Fuat Sezgin’s Ta¯ rı¯kh al-Tura¯th al-ʿArabı¯, Sufyan al-Thawri had copied Abu Hanifa’s Kitab al-Rahn.17 143

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Since Abu Hanifa had many detractors, especially among the hadith scholars, Abu Muʾayyad Muhammad b. Mahmud al-Khwarizmi (d. 665/1267) wrote a work to defend him. He collected and arranged the hadith reports Abu Hanifa cited according to the legal chapters, deleting the redundant ones and retaining their chains of authority, in order to rebut the charges that Abu Hanifa rejected hadith and to gain recognition for his scholarship in this field.18 To be specific, Abu Hanifa relied on 215 hadiths, which are presented in al-Hajjuji’s edition of al-Futuhat al-Ilahiyya by Ibn ʿAbdullah al-ʿAlawi. This collection of 215 hadiths stands at odds with the report that Abu Hanifa used only approximately 17 hadith reports in his legal scholarship.19 Among the works attributed to Abu Hanifa are, first, Kitab al-Fiqh al-Akbar, which begins with the principle of monotheism. It has been said that his son Hammad transmitted the work on his authority. The second book, Kitab al-Fiqh al-Absat, was transmitted on his authority by his disciple Abu al-Mutiʿ al-Hakam b. ʿAbdullah b. Salama (d. 199/815). The third is Risala fi al-Faraʾid, a title he shares with two famous contemporary jurists. The fourth work, Kitab alʿAlim wa-l-Mutaʿallim, was compiled by his disciple Abu Muqatil Hafs b. Salm al-­Samarqandi (d. 208/823). Another work was known as Arbaʿ Was․a¯ ya¯ : was․iyya fi us․u¯l al-Islam. Two varying accounts of this was․iyya or ‘testament’ exist. The second was․iyya is addressed to Abu Hanifa’s son Hammad, the third was․iyya to his disciple Yusuf b. Khalid al-Samati al-Basri, and the last was․iyya to his disciple Abu Yusuf. Moreover, to Abu Hanifa are attributed two treatises for ʿUthman b. Sulayman al-Batti (d. 143/760) and a debate with Jaʿfar b. Muhammad b. Ahmad al-Rida (d. 148/765). Lastly, a Musnad Abu Hanifa was transmitted by Abu Yusuf, his son Yusuf, and al-Hasan b. Ziyad al-Luʾluʾi (d. 204/819). According to Ibn Hajar al-ʿAsqalani, this Musnad is really the Kitab al-Athar, which contained accounts of Abu Hanifa transmitted by Muhammad b. Hasan. In the fourth/tenth century, Abu Muhammad al-Harithi sought to ferret out, collect, and compile the hadiths of Abu Hanifa. In other instance, the hadiths of Abu Hanifa were also edited by Abu Bakr al-Muqriʾ.20

The second leading jurisprudent: Malik b. Anas (d. 179/795) The second leading jurisprudent, Malik b. Anas b. Malik b. Abi ʿAmir al-Asbahi al-Madani (93–179/712–795), was the ‘amı¯r al-muʾminı¯n of hadith’, ‘ima¯ m da¯ r al-hijra’, ‘jurist of the Hejaz’, and its scholar during his time.21 He belonged to a notable family. His great-grandfather, Abu ʿAmir, was a Companion who participated in most of the early battles of the Muslim community, but not in the battle of Badr. His grandfather, a senior Successor as well as a scholar, was a consultant to ʿUmar b. ʿAbd al-ʿAziz. Malik grew up in Medina and was educated by its prominent scholars. A seeker of knowledge since his youth, Malik was dressed by his mother in the robe of a scholar and sent to the well-mannered Ibn Rabiʿa. He continued to learn his teacher’s manners and knowledge until he excelled in them. He constantly accompanied ʿAbd al-Rahman b. Hurmuz, who was known as al-Aʿraj (d.  117/735) for 13 years. He studied under Nafiʿ, the freedman of Ibn ʿUmar, and asked him about the opinions of Ibn ʿUmar. In addition, he studied under Ibn Shihab al-Zuhri, the keeper of Saʿid b. al-Musayyib and the jurisprudent of the Successors of Medina, and sat with Muhammad b. al-Munkadir, Yahya b. Saʿid al-Ansari, and other scholars affiliated with them. He also accompanied and transmitted from Jaʿfar al-Sadiq. In total, he learned material from over 900 scholars. It appears that he learned from his peers and incorporated their thoughts and opinions into his teaching, which made him a prominent jurist and drew scholars and students to him from all over the Muslim world. He began teaching when he was 17, while his teachers were still 144

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alive and the city’s scholars were growing in number. He lived in Medina for 70 years and never stopped narrating, engaging in ifta¯ ʾ, and teaching. Scholars reflected on his scholarship and said, ‘No one else should grant legal responsa while Malik is in Medina’ (la¯ yufta¯ wa-Malik fi al-Madı¯na) because of his vast knowledge and the high calibre of his teaching. His peers and counterparts benefited greatly from his teachings, including Muhammad b. Ibrahim b. Dinar (d. 182/798), who had studied under Ibn Hurmuz. Al-Shafiʿi, al-Mughira b. ʿAbd al-Rahman al-Makhzumi, ʿAbd al-ʿAziz b. Abi Hazim (d. 184/800), and Ahmad b. Hanbal testified to his knowledge in jurisprudence; and Sufyan al-Thawri, the ‘scholar of Iraq’, used to ask Malik to compete with other members of his circle. Many leading Ijtiha¯ d scholars transmitted about him, such as Abu Hanifa, the ‘scholar of Iraq’; Sufyan b. ʿUyayna, the ‘scholar of Mecca’; Muslim b. Khalid al-Zanji (al-Shafiʿi’s teacher); Ibn Jurayj, the ‘ jurist of the Grand Mosque’; al-Awzaʿi, the ‘scholar of Syria’; alLayth b. Saʿd, the ‘scholar of Egypt’; Ibn Abi Dhiʾb, a notable scholar in Medina; ʿAbdullah b. Mubarak, a disciple of Abu Hanifa, Abu Yusuf, Muhammad b. Hasan al-Shaybani, and others. Among Malik’s teachers who transmitted from and needed his knowledge were Zayd b. Aslam, Yahya b. Saʿid al-Ansari, Ibn Shihab al-Zuhri, Rabiʿa, and Ayyub al-Sakhtiyani. Malik tracked the Companions’ legal responsa and the Successors’ jurisprudence until he emerged as the most knowledgeable person of Medinan hadith and the most reliable judge regarding chains of authority. Al-Shafiʿi called him the ‘star of hadith’, and Yahya b. Maʿin praised him both for his manners and for his knowledge and considered him a sign of God’s blessing on His creatures. Moreover, he acted upon his knowledge, especially when he disapproved of the caliph Abu Jaʿfar al-Mansur and was reluctant to take the oath of allegiance to him. The news reached Jaʿfar b. Sulayman, the deputy of Medina, who then summoned and rebuked Malik. The ensuing whipping he received for voicing this opinion dislocated his shoulder. His only reply was to ask God to forgive them because they did not know what they were doing. Contemporary and later scholars competed to record his biography and their writings reflected his tremendous influence. Malik explained his methodological approach to Ijtiha¯ d as follows. What is found in the Qurʾan and the Prophet’s Sunnah is beyond doubt, and God is aware of what is derived from exerting one’s judgement (Ijtiha¯ d al-raʾy). Inclined to resort to qiya¯ s only when absolutely necessary, Malik asserted that what appeared in the Muwattaʾ was not his opinion, but rather what he had heard from the people of knowledge (ahl al-ʿilm), those who feared God. In addition, he maintained that his opinion was also their opinion, since it had been transmitted from the Companions. Therefore, his material represented the consensus of the views of leading scholars. Whenever he said al-amr ʿindana¯ (‘the situation among us’) or al-amr bi-baladina¯ (‘the situation in our town’), he was referring to practices known by both the common people and the scholars of Medina. When he quoted various scholars, he would indicate the views that he preferred. Whenever he was unsure, he exercised Ijtiha¯ d and looked into the view that he considered to be the truth or near to the truth so that he would stay within the Medina school and its views. In case he had not heard it, he would incorporate his opinion beyond Ijtiha¯ d along with the Sunnah and the predecessors’ practice so as to not override previous opinions. Malik constructed his legal doctrine on the following five principles: the explicit Qurʾanic text (nas․․s); the apparent (z ․a¯ hir) meaning derived from a general and non-specific text; the evidence (dalı¯l) of a text that may have an interpretation that diverges from its obvious meaning; an implication (mafhu¯m) of the text, which has an added meaning that coincides with its obvious meaning; and an expositive text (tanbı¯h) that reports the underlying reason for a judgement, like the statement, ‘it is filth’. 145

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He used the Sunnah and its evidence according to a similar pattern of ten categories: consensus (ijma¯ʿ); analogy (qiya¯ s); the practice of the people of Medina (ʿamal ahl al-Madı¯na); the Companion’s statements (qawl al-s․ah․a¯ bı¯) with a proper chain of authorities (isna¯ d); judicial preference (istih․sa¯ n) – reportedly representing nine tenths of knowledge – blocking the paths to evil (sadd al-dhara¯ ʾiʿ); the presumed continuance of the status quo ante (istis․․ha¯ b); avoidance of contradictory rulings (mura¯ ʿa¯ t al-khila¯ f ); and considerations of public interest (al-mas․a¯ lih․ al-mursala). He was confident when he elaborated the meanings of public interest. Malik’s Muwattaʾ was the first written hadith collection comprising the subjects of Islamic jurisprudence and the first legal work to incorporate and combine hadith and law. This widely praised work is considered among the earliest extant hadith collections that, alongside the Qurʾan, form the basis of Islamic jurisprudence. It is far more than that, though, for many of the legal precepts it contains are not based on hadith. The book covers the rituals, rites, customs, traditions, norms, and laws of the Prophet’s time. It is reported that Malik included in it only about 1% of the 100,000 authentic hadith reports available to him. 22 He adopted great diligence and meticulousness in order to respond to the increasing number of disputed opinions in the law and to fulfill a personal request from Caliph Abu Jaʿfar al-Mansur to produce a work that could be promulgated as the Empire’s standard law book.23 Given that such a work should exemplify the principle of the Prophet that ‘The best matters are those which are balanced’, he devised a compendium of the agreed-upon views of the Companions and the elder scholars on religious and legal issues.24 Another historical report suggests that the date of Caliph Abu Jaʿfar al-Mansur’s (r. 136–158/753–775) death was misreported, since it took Malik 40 years to write this work; he completed it in 176/792, three years before his own death.25 It has been said that he revised the Muwattaʾ several times to make it as useful as possible for Muslims and the best for Islam. According to al-Qadi ʿIyad, if Malik had lived longer he would have summarized all of his work and left nothing to chance.26 According to al-Qadi ʿIyad, Ibn Farhun, and Ibn al-Nadim, Malik composed many treaties, such as Risala ʿila Harun al-Rashid (Epistle to Harun al-Rashid, on manners and exhortation to good deeds), Risala fi al-Fatwa (Epistle on Legal Questions, addressed to his companion and prominent Medinan scholar Abu Ghassan Muhammad b. al-Mutarrif al-­Laythi), Kitab fi al-Tafsir li-Gharib al-Qurʾan, which was transmitted by Khalid b. ʿAbd al-Rahman al-­Makhzumi, Risala ila al-Layth b. Saʿd fi Ijma¯ ʿ Ahl al-Madina, Kitab al-Sira, which was transmitted by ʿAbd al-Rahman b. al-Qasim, and Masaʾil wa-Ajwibatuha, which was transmitted by ʿAbdullah b. ʿAbd al-Hakam (d. 214/829).27

The third leading jurisprudent: Muhammad b. Idris al-Shafiʿi (d. 204/819) The lineage of the third leading scholar, Abu ʿAbdullah Muhammad b. Idris al-Shafiʿi al-­ Muttallibi (150–204/767–819), is linked with that of the Prophet via the Banu ʿAbd Manaf. Born in Gaza in Palestine, his mother brought him to Mecca while he was a young child. He memorized the Qurʾan by the age of seven and al-Muwattaʾ by the age of ten. Even the wellknown and eloquent poet al-Asmaʿi heard him recite from the poetic work Diwan al-Hudhaliyyin. A disciple of Muslim b. Khalid al-Zanji, the grand mufti of Mecca, al-Shafiʿi later moved to Medina to study under Malik and read all of al-Muwattaʾ. He learned the knowledge of the scholars of Medina. Malik, very impressed with his intelligence, praised him for his understanding and perseverance. Al-Shafiʿi’s teacher Muslim b. Khalid al-Zanji permitted him to engage in iftaʾ at the age of 15.28 146

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Al-Shafiʿi then moved with his uncle Abu Musʿab to Yemen. In 184/800, he was accused of siding with Yahya b. ʿAbdullah and preaching for the Ahl al-Bayt. When he was brought before Caliph Harun al-Rashid, Abu Hanifa’s disciple Muhammad b. Hasan al-Shaybani pleaded for him and managed to persuade the caliph of al-Shafiʿi’s innocence.29 In Baghdad, he studied with Muhammad b. Hasan al-Shaybani and familiarized himself with the region’s jurisprudential works. He later reported, ‘I walked out of Baghdad with the valuable knowledge of Muhammad b. Hasan al-Shaybani’.30 He was considered among the disciples of Malik, and he opposed the views of Muhammad b. Hasan al-Shaybani and those of the adherents of raʾy, particularly regarding their use of legal analogy. In defence of the people of the Hejaz, he promoted jurisprudence that was based on the transmitted report (athar), becoming known as the champion of Sunnah.31 His stay in Iraq greatly affected his independent process of legal interpretation and the construction of a new methodological approach after his departure from Baghdad. He then proceeded to form his own school and thus became independent of his teacher Malik b. Anas. In 188/804 he travelled to Mecca. However, he continued to move between the two regions until he left for Egypt, where he stayed until 195/811. Returning to Baghdad, he found himself surrounded by scholars who were eager to benefit from his knowledge, including Ahmad b. Hanbal and Abu al-Thawr. During his two-year residence there, he dictated his books, his knowledge became widespread, and many scholars embraced his school.32 In 198/814 he returned to Mecca and then to Baghdad, where he stayed for a month before going to Egypt. After settling down in Fustat, he taught law, composing and dictating his new books to his disciples until he became seriously ill and died at the age of 54. The works he had compiled in Iraq became known as his ‘old’ legal doctrine, while the works he compiled in Egypt became known as his ‘new’ legal doctrine. Leading scholars, including ʿAbd al-Rahman b. Mahdi, asked al-Shafiʿi to write a book on the meanings of the Qurʾan, accepted reports, arguments over consensus, and statements regarding the abrogation in the Qurʾan and Sunnah. Al-Shafiʿi presented him with his ­Risala, which pleased him so much that he kept al-Shafiʿi in his prayers. Ahmad b. Hanbal also praised him: ‘God will send to this nation at the beginning of every century a person to renew its religion. ʿUmar b. ʿAbd al-ʿAziz was for the first century, and al-Shafiʿi is for the second century’. Malik, Sufyan b. ʿUyayna, Is-haq b. Rahawayh, Muhmmad b. Hasan al-Shaybani, Yahya b. Maʿin, ʿAli b. al-Madini, and al-Qadi ʿIyad also praised him.33 Al-Shafiʿi recorded the sources and principles of his legal hermeneutics in the Risala and Kitab al-Umm. His methodological approach relied on the four core principles of the Qurʾan, Sunnah, consensus and analogy.34 He also declared that the opinions of the Companions sayings constitute proof (h․ujja) that must be taken into account regarding details.35 In his Kitab Ikhtilaf maʿa Malik,36 he stated that knowledge is divided into five levels: the Qurʾan and the Sunnah; consensus in cases in which an answer cannot be found in the Qurʾan and the Sunnah; the opinion of a Companion without any reported objection from the Companions; the Companions’ disputed opinions; and analogy. He dedicated a chapter in his al-Umm to explaining why istih ․sa¯ n (juristic preference) should be rejected, while refuting the argument presented by the jurists of Medina. Al-Shafiʿi spread his own doctrine far and wide in the form of 113 treatises that he composed in Baghdad, Mecca, and Egypt. His most famous book, Kitab al-Umm, classifies subjects in accordance with the topical chapters of the law. He dictated this work to his disciples in Egypt, and his disciple al-Rabiʿ b. Sulayman al-Muradi (d. 270/883) transmitted it. Also among his legacy is a collection of treatises on ikhtila¯ f (disputed points of law) and comparative jurisprudence. His second-most important work, al-Risala, is considered the first manual of legal theory or the principles of jurisprudence (us․u¯l al-fiqh). In his Kitab Ikhtilaf al-Hadith, he 147

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explained how to weigh two conflicting hadiths, asserting that there is no actual conflict but rather only apparent contradiction. In most cases, one report abrogates the other. To illustrate this reasoning, he remarked that the reader should view one of them as sound (s․ah ․¯ı․h) and the other as unsound. If they were both sound, he would combine them to make each hadith report unlike the other, thereby refuting leading scholars’ claims that the reports contradicted each other. He incorporated this argument into the last volume of Kitab al-Umm.

The fourth leading jurisprudent: Jaʿfar al-Sadiq (148/765) The forth scholar, Abu ʿAbdullah Jaʿfar b. Muhammad al-Baqir b. ʿAli Zayn al-ʿAbidin b. al-Husayn b. ʿAli b. Abi Talib, known as Jaʿfar al-Sadiq (80–148/699–765), was the sixth Imam of the Twelver Shiʿis. He claimed that this position was reserved for the offspring of al-Husayn, the son of Fatima and ʿAli b. Abi Talib, after the death of al-Hasan b. ʿAli b. Abi Talib. Al-Sadiq’s mother was Farwah bint al-Qasim b. Muhammad b. Abu Bakr al-Siddiq. A member of the Banu Hashim lineage, he transmitted from his father al-Baqir, his maternal grandfather al-Qasim, and scholars affiliated with them. Al-Sadiq was known for his views on Islam’s fundamental and subsidiary legal issues. The debates that raged between him and other scholars became common with respect to the methodological interpretation of the origin of Islamic jurisprudence. His school gathered many students from across the Muslim world, and his jurisprudence and traditions spread far afield. For that reason the Twelver Shiʿi legal school was attributed to him in particular. 37 In his capacity as a transmitter of hadith as well as a scholar of the disputed points of the law and an expert in legal deduction, he had a wide-ranging knowledge of the sayings and opinions of numerous scholars. Abu Hanifa transmitted that Abu Jaʿfar al-Mansur said to him, ‘The people are infatuated with Jaʿfar b. Muhammad, so prepare for him questions that require answers’. I prepared 40 cases and asked him about them. He replied, ‘You say this … the people of Medina say this … while we say this … We might shift our opinion, or perhaps you will shift your opinion, or perhaps we will all continue in dissent’. After he had addressed all 40 issues, Abu Hanifa said, ‘He (Abu Ja`far) is the most knowledgeable scholar. He is the most knowledgeable of the jurists of differences of opinion (ikhtila¯ f )’.38 Sufyan al-Thawri, Sufyan b. ʿUyayna, Malik b. Anas, Abu Hanifa, and many other leading jurists benefited from his knowledge. Moreover, al-Sadiq was a scholar of alchemy and a teacher of Jabir b. Hayyan, who compiled for him 500 alchemical treatises. He died at the age of 69. His methodological approach was to consult the Qurʾan and the Prophetic Sunnah, followed by the statements of the Shiʿi Imams, to respond to argument through consensus, and to reject legal analogy altogether. One of his doctrinal points was the requirement that scholars undertake Ijtiha¯ d. The most famous work attributed to him is Misbah al-Shariʿah waMiftah al-Haqiqa, a 100-chapter work that consists of his sayings on ethical dimensions of the Qurʾan, Kitab Tafsir al-Qurʾan, Kitab Manafiʿ Suwar al-Qurʾan, and Kitab Khawass al-Qurʾan alʿAzim. In addition to works on the fundamental principles of Islam, his Kitab al-Tawhid, Kitab Ithbat al-Saniʿ, and Adilla ʿala¯ al-Khalq wa-l-Tadbir, he had an almanac of months and years, presenting weather forecasts and instructions on selecting days and months.39

The fifth leading jurisprudent: ʿAbd al-Rahman al-Awzaʿi (157/791) The fifth leading scholar, Abu ʿAmr ʿAbd al-Rahman al-Awzaʿi (88–157/707–791), was the imam and jurist of the people of Syria. A senior Successor of the Successors, he received 148

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his knowledge from Mak-hul and ʿAtaʿ. He travelled to Iraq, the Hejaz, and Egypt to seek knowledge. He studied under such Successor scholars as b. Shihab al-Zuhri and Yahya b. Abi Kathir, until he became a leading scholar and major specialist in jurisprudence and hadith. ʿAbd al-Rahman b. al-Mahdi said, ‘There are four hadith scholars: al-Awzaʿi, Malik b. Anas, Sufyan al-Thawri, and Hammad b. Zayd. Moreover, no one more was knowledgeable about the Sunnah than al-Awzaʿi’. A majority of scholars testified to his profound knowledge: Malik said al-Awzaʿi was exemplary, Sufyan b. ʿUyayna said that al-Awzaʿi was the leading scholar of his time, and Yahya b. Maʿin said there are three true scholars: al-Thawri, Abu Hanifa and al-Awzaʿi.40 Al-Awzaʿi was a source of knowledge for such prominent scholars as ʿAbdullah b. Mubarak, Sufyan al-Thawri, Abu Is-haq al-Fazari, al-Walid b. Muslim, and ʿAmr b. Abi Salama. He became an authority on jurisprudence at the age of 13 and issued fatwas on 70,000 matters. An independent mujtahid, he expressed his own views and formed his own school of Ijtiha¯ d. He was more inclined towards transmitted reports than to personal judgement, opposed legal analogy and actively pursued reports, for, You should take into consideration the ancestors’ transmitted opinions even if the people reject you, and you should be aware of the people’s legal opinions even if later scholars have decorated and improved them. Be patient with the Sunnah and take it as it stands, rule according to what the majority says, and stop where they do. Be aware of how much they can do. He was very aware of the meanings of the words he used and made sure that whoever listened to him wrote down his best opinions. Ibn al-Nadim said that al-Awzaʿi wrote works arranged by legal chapter, including Kitab al-Sunan fi al-Fiqh and Kitab al-Masaʾil fi al-Fiqh.41 His works were preserved through citations in later works such as Kitab al-Radd ʿala¯ Siyar al-Awzaʿi by Abu Yusuf, the disciple of Abu Hanifa, which appears in al-Shafiʿi’s Kitab al-Umm.42 Abu Muhammad ʿAbd al-Rahman b. Abi al-Hatim’s (d. 327/939) Kitab al-Jarh wa-l-Taʿdil preserves the epistles al-Awzaʿi wrote to the Abbasid caliphs to explain his views on jurisprudential issues and to present various exhortations. When one of these reached Caliph al-Mansur, he read it and pondered on its wonderful meanings and the sweetness of its contents.43 Al-Awzaʿi’s school was widespread in Syria; the people of Damascus and its surrounding areas followed it for 220 years. It disappeared at the beginning of the third/ninth century. The people of the Andalus also followed it as a consequence of the influx of Syrians, especially in the early Islamic centuries. It was replaced by the Maliki legal school after two centuries of Umayyad rule.44 The modern scholar ʿAbdullah al-Mawla Muhammad al-Jabburi’s Fiqh al-Imam al-Awzaʿi is now available in two volumes.45

The sixth leading jurisprudent: Sufyan b. Saʿid al-Thawri al-Kufi (162/778) Abu ʿAbdullah Sufyan b. Saʿid b. Masruq al-Thawri al-Kufi (97–162/761–778), a leading mujtahid and founder of one of the leading legal schools, was taught by al-Aswad b. Yazid, Zayd b. Aslam, al-Aʿmash, and others. Such prominent scholars as Malik b. Anas, ʿAbdullah b. Mubarak, Sufyan b. ʿUyayna, al-Awzaʿi, and b. Jurayj heard his legal opinions. Abu Jaʿfar al-Mansur offered him a judicial position in Kufa, but he declined. He left for Mecca in 144/761 and settled there. When the Caliph al-Mahdi called upon 149

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him, he moved to Basra and hid there until his death. Praised by all leadings scholars, he was considered the most knowledgeable and prominent figure in both hadith and law. Among his many works in these two fields are Kitab al-Tafsir, Kitab al-Faraʾid, Kitab al-Iʿtiqad, and Kitab al-Jamiʿ al-Kabir fi al-Hadith. He also wrote treaties on asceticism, exhortation, and legal opinions. Although many followers applied his doctrine while undertaking ifta¯ ʾ, his legal school did not survive. However, Ibn ʿImad al-Hanbali reported that he identified some followers who were active in the final years of the fourth century.46

The seventh leading jurisprudent: al-Layth b. Saʿd al-Misri (175/791) Abu al-Harith al-Layth b. Saʿd b. ʿAbd al-Rahman al-Fahmi al-Misri (95–175/731–791), ‘the imam of fiqh and hadith’, engaged in ifta¯ ʾ while living in Egypt. He moved to the Hejaz in his twenties and studied jurisprudence with ʿAtaʾ, Qatada, Nafiʿ, and Malik b. Anas. A disciple of Ibn Shihab al-Zuhri, he met and debated with Rabiʿat al-Raʾy on various issues and exchanged letters and consulted frequently with Malik. Ibn Qayyim al-Jawziyya (d. 751/1350) preserved this correspondence, which is considered a great model of communication and intellectual discourse concerning evidentiary matters discussed among prominent scholars. Many leading jurists such as Ibn Wahb, al-Shafiʿi, and Yahya b. Bakir considered al-Layth, who adhered to transmitted opinions more than Malik, to be more diverse than Malik. However, despite his high caliber in both fields, his legal school failed to attract enough followers to ensure its survival. Malik was more fortunate in this regard, as Ibn Bakir stated. Ibn al-Nadim reported that al-Layth authored such works as Kitab Masaʾil fi al-Fiqh, and before starting his own legal school was one of Malik’s companions. He was offered – and declined – a governorship.47 Those who studied under these leading scholars, the mujtahids of their legal schools, spread their teachers’ reasoning in jurisprudence. The second phase of this activity saw the emergence of disciples who preserved and spread these doctrines through the derivation of subsidiary rulings (tafrı¯ʿ) and codification (tadwı¯n). Other mujtahids arose at this time as well, three of whom had their legal doctrine codified: Ahmad b. Hanbal, Abu Thawr, and Dawud b. ʿAli. Therefore, one must count these three individuals among the seven leading figures of this stage.

The eighth leading jurisprudent: Ahmad b. Hanbal al-Shaybani (241/855) Abu ʿUbaydillah Ahmad b. Muhammad b. Hanbal b. Hilal al-Shaybani (164–241/781–855) attended the circle of al-Qadi Abu Yusuf, but eventually left it in 187/803 and became attracted to hadith. He sought knowledge in Kufa, Basra, Mecca, Medina, Yemen, Syria, and the Arabian Peninsula with their leading scholars such as Sufyan b. ʿUyayna and al-Shafiʿi and heard material from ʿAbd al-Razzaq b. Hammam, Wakiʿ b. al-Jarrah, Yahya b. Saʿid al-Qattan, ʿAbd al-Rahman al-Mahdi, and others in Sanʿaʾ.48 A Shafiʿi jurist, he gradually became an independent mujtahid who taught such hadith scholars as al-Bukhari, Muslim, al-Shafiʿi, Abu Dawud, who wrote about him in his Kitab al-Sunan,49 and his two sons Salih and ʿAbdullah b. Hanbal was an ‘imam of hadith’ and an ascetic who was concerned with the points of law in all their details. Al-Shafiʿi, despite his wide knowledge, relied upon Ibn Hanbal’s views with respect to hadith and frequently praised him for his righteousness and the high caliber of his scholarship. Ibn Hanbal took a 150

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firm stand under the Caliphs al-Muʿtasim and his son al-Wathiq on the Qurʾan’s createdness and was imprisoned and flogged as a consequence. Later on, he was offered – and declined – the governorship of Yemen. Some scholars, such as Ibn Jarir al-Tabari, al-Tahawi, al-Dusi, al-Nasafi, Abu Hamid al-Ghazali, Ibn Qutayba, al-Maqdisi, and Ibn ʿAbd al-Barr dispute his authority in hadith. In the Fihrist, Ibn al-Nadim dedicated less attention to this scholar’s authority in law than he did to those of Malik, Abu Hanifa, Dawud, and their affiliates on the grounds that Ibn Hanbal was more involved in scholarship on hadith than in legal scholarship. His Musnad contains 30,000 hadith, none of which are repetitions, filtered out of 750,000 reports. Al-Qadi ʿIyad states that Ibn Hanbal is a leading hadith authority and no one should oppose his status. Nevertheless, his opinions should not be given the same weight as that accorded to the other founders of legal schools with respect to legal questions.50 His followers, who disagree with this statement, consider him a mujtahid in law. Since his fatwas and discussions of legal questions were transmitted and reported to subsequent generations and compiled in well-known works, he gained recognition as a leading jurist and a model for the people of the Sunnah, and even his opponents ended up praising his legal rulings and pronouncements.51 Ibn Hanbal’s legal rulings were based on five principles. The first category (a) was that of explicit textual rulings of the Qurʾan and Sunnah – if they existed, they would stand, in his view, even if they were opposed by other views. The second category (b) was that of the Companions’ legal opinions. Any fatwa from a Companion that has no known opposition should be considered. The third category (c) was that of selection from the variety of views adopted by the Companions. If there was disagreement among them regarding a legal ruling, one should select the most suitable view from the perspective of the Qurʾan and the Sunnah and not go beyond the spectrum of their opinions. If one cannot arrive at a single preferred opinion, the issue of legal dissent (ikhtila¯ f ) should be addressed by discarding the opinions of all others besides the Companions. The fourth category consisted of (d) the acceptance of hadith reports that were either mursal (discontinued or disconnected, especially at the level of a Companion) or ․daʿı¯f (weak), as long as there was no need to trace them back to the original source. If there is a lack of consensus on a disputed issue, a weak hadith report should be given priority over an analogical argument. The fifth category was that of legal analogy (qiya¯ s); Ibn Hanbal admitted the use of analogy if necessary. Sometimes Ibn Hanbal refrained from issuing a legal responsum when a conflict of evidence arose, the Companions had different interpretations, or a saying of a Companion or a Successor could not be found. Thus, it is evident that he had additional hermeneutic principles. He adduced isolated reports (khabar al-wa¯․hid) as proofs without reservation as long they had valid chains of transmission. He also employed the principle of sadd al-dhara¯ ʾiʿ (‘blocking the means’), which appears in many of the subsidiary rulings transmitted from him.52 Ibn Hanbal’s views were deeply anchored in the transmitted opinions associated with historical and surviving legal schools, especially regarding the Companions’ deeds and precedents. Because most of Ibn Hanbal’s followers were from Baghdad, his legal school managed to survive and spread. In addition to his Musnad, his Kitab ʿIlal al-Hadith illustrated his ability to classify the relative authority and biographies of hadith transmitters and the hadiths they reported. His Kitab al-Masaʾil consists of his answers to his disciples on matters of subsidiary and fundamental legal cases. His disciple Abu Bakr al-Khallal (d. 311/923) compiled this work for inclusion in his al-Jamiʿ li-ʿUlum al-Imam Ahmad. He also authored Kitab al-Tafsir, Kitab al-Nasikh wa-l-Mansukh, Kitab al-Zuhd, Kitab al-Fadaʾil, Kitab al-Faraʾid, Kitab al-Manasik, Kitab al-Iman, Kitab al-Radd ʿala al-Jahmiyya, Kitab al-Ashriba, and Kitab Taʿat Rasul Allah.53 151

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The ninth leading jurisprudent: Ibrahim b. Khalid al-Baghdadi (d. 240/854) Abu Thawr Ibrahim b. Khalid b. Abi al-Yaman al-Baghdadi (d. 240/854), a famous, devout, and accomplished jurist, initially followed Muhammad b. Hasan al-Shaybani and then left him for al-Shafiʿi when the latter arrived in Baghdad. As a disciple of al-Shafiʿi, he shifted his hermeneutical emphasis from raʾy to athar and reduced his attendance at Muhammad b. Hasan al-Shaybani’s lessons. He heard material from Sufyan b. ʿUyayna, ʿAbd al-Rahman b. al-Mahdi, Wakiʿ b. al-Jarrah, and others. He transmitted al-Shafiʿi’s Baghdad-era opinions but eventually opposed them when he found substitutes. He excelled in law to such a degree that whenever Ibn Hanbal encountered a difficult issue, he would refer to Abu alThawr. Considered a leading mujtahid, his independent legal school attracted followers in Baghdad, Azerbaijan, and Armenia. However, because his companions did reach not a large number or stay with him for long, his school disappeared after the fourth/tenth century. Ibn al-Nadim mentioned three of his works on hadith and law: Kitab al-Tahara, Kitab al-Salat, and Kitab al-Manasik. Al-Tabari benefited greatly from his works, particularly in his Kitab Ikhtilaf al-Fuqahaʾ.54

The tenth leading jurisprudent: Dawud al-Zahiri (270/883) Abu Sulayman Dawud b. ʿAli b. Khalaf al-Isbahani (al-Zahiri; 200–270/816–883), was the first jurist to use the plain-sense meaning (z ․a¯ hir) of the Qurʾan and Sunnah and to reject all other principles such as such as personal judgement (raʾy) and analogy (qiya¯ s). A disciple of Is-haq b. Rahawayh, Abu al-Thawr, and others, he was an ascetic who, toward the end of his life, was recognized as the top scholar in Baghdad. His son Abu Bakr b. Dawud and others received their knowledge of law from this mujtahid, who was very partial to al-Shafiʿi. After compiling two works on al-Shafiʿi’s virtues and praising him, he established his own legal school based on the plain meaning of the Qurʾan and Sunnah. Furthermore, he considered the scriptural texts to provide all answers, thereby limiting the sources of legal rulings to the Qurʾan, the Sunnah, and the Companions’ consensus. He clarified the principles of legal hermeneutics and prohibited the use of qiya¯ s as a source of legal rulings. The Zahiris believed that it was not possible to determine the divine purpose behind particular scriptural texts or legal rulings, and they proclaimed that the first one to use qiya¯ s was the Devil. The Zahiri legal school first spread eastward, then westward. It remained active in the Andalus until the fifth/11th century. It emerged in the fourth/tenth century in Iraq, Iran, Khurasan, Oman, and Sind; however, the number of its followers decreased and it eventually disappeared. All that remains is found in books and encyclopedias of jurisprudence that present it as a historical Sunni legal school. The Muwahhidun caliphate adopted the Zahiri school of law during the reign of Caliph Yaʿqub b. Mansur (580–595/1184–1199). Ibn al-­ Nadim reported that Dawud compiled around 157 works, among them Kitab Ibtal al-Taqlid, Kitab Ibtal al-Qiyas, Kitab al-Khabar al-Wahid, and Kitab al-Hujja.55

Notes 1 Muhammad Yusuf al-Kandahuli, Hayat al-Sahaba, ed. Hisham al-Bukhari (Beirut: al-Maktaba al-ʿAsriyya, 2012), 13: 225–7; ʿAbd al-Wahhab Khallaf, ʿIlm Usul al-Fiqh (Cairo: Dar al-Hadith, 2003), 107–8. 2 Muhammad b. Hasan al-Hajjuji al-Thaʿalibi al-Fasi, Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami, vol. 1 (Beirut: Dar al-Kutub al-ʿIlmiyya, 1976), 271–3. 152

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3 Muhammad Anis Mustafa al-Khalili, Fiqh al-Ikhtilaf: Mabadiʾuhu wa-Dawabituhu (Beirut: al-­ Maktaba al-ʿAsriyya, 2011), 92–4; Shah Walyyullah Ahmad b. ʿAbd al-Rahim al-Faruqi Dahlawi, Al-Insaf fi Bayan Asbab al-Ikhtilaf (Beirut: Dar al-Nafa’is, 1978), 30–2; Muhammad ʿAli al-Sayis, Tarikh al-Fiqh al-Islami (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990), 84–86; Muhammad Abu Zuhra, Tarikh al-Madhahib al-Islamiyya (Cairo: Dar al-Fikr al-ʿArabi, 1987), 84–6. 4 Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 155. 5 Muhammad al-Khadari Baik, Tarikh al-Tashriʿ al-Islami, ed. Khalid al-ʿAttar (Beirut: Dar al-Fikr, 1995), 149–50. 6 See ʿAbd al-Rahman al-Jazari, Al-Fiqh ʿla al-Madhahib al-Arbaʿa (Beirut: Al-Maktaba al-ʿAsriyya, 2012); Muhammad Anis Mustafa al-Khalili, Fiqh al-Ikhtilaf: Mabadiʾuhu wa-Dawabituhu (Beirut: Al-Maktaba al-ʿAsriyya, 2011), 97–101; Abu ʿAbdullah Muhammad b. Ahmad Ibn Qudama, Manaqib al-Aʾimma al-Arbaʿa, ed. Sulayman Muslim al-Hurra (Riyadh: Dar al-Muʾayyad, 1995); ­Muhammad Taja, Al-Madhahib al-Fiqhiyya al-Islamiyya, (Damascus: Dar Qutayba, 2004); Sayf alDin Abu Bakr Muhammad b. Ahmad al-Shashi, Hilyat al-ʿUlamaʾ fi Maʿrifat Madhahib al-Fuqahaʾ, ed. Yasin Ahmad Ibrahim Daradikh, vols 1–8 (Amman, Jordan: Maktabat al-Risala al-Haditha, 1988); Muhammad ʿAbd al-Majid al-Asmandi, Tariqat al-Khilaf fi Fiqh al-Aʾimma al-Aslaf, ed. Muhammad Zaki ʿAbd al-Barr (Cairo: Makatabat Dar al-Turath, 1990); Al-Khudari Baik, Tarikh alTashriʿ, Taysir Usul al-Fiqh, 358–60. 7 ʿAbdullah ibn Asʿad ibn ʿAli ibn Sulaiman al-Yafiʿi, Mirʾat al-Jinan, vol. 1, 330–2; Al-Shirazi, Tabaqat al-Fuqahaʾ, 86; Ibn ʿImad, Shadharat al-Dhahab, vol. 1, 372; Ibn al-Nadim, Al-Fihrist, 342–51; Al-Shahrastani, Abu al-Fath b. ʿAbd al-Karim, Al-Milal wa-l-Nihal, vol. 2 (Beirut: Dar al-Maʿrifa, 1986), 46; Mustafa b. ʿAbdullah al-Qusyantini Hajji Khalifa, Kashf al-Zunun ʿan Asami al-Kutub wal-Funun, vol. 2 (Baghdad: Maktabat al-Mutanabbi, 1994), 556; Muhammad b. Hasan al-Thaʿalibi al-Hajjuji, Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami, ed. Ayman Salih Shaʿban, vol. 2 (Beirut: Dar al-Kutub al-ʿIlmiyya, 1995), 410–34. 8 Ibn ʿAbd al-Barr, Jamiʿ al-Bayan, vol. 2, 181–2. 9 Ibn Khaldun, al-Muqaddima, 427. 10 Ibn ʿAbd al-Barr, Jamiʿ al-Bayan, vol. 2, 183. 11 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 107. 12 Ibn al-Nadim, Al-Fihrist, 256. 13 Ibid., 282. 14 Ibid., 284. 15 Abu Bakr Ahmad b. ʿAli al-Khatib al-Baghdadi, Tarikh Baghdad/Madinat al-Salam: Akhbar Muhaddithiha wa-Dhikr Quttaniha al-ʿUlamaʾ min ghayr Ahliha wa-Waridiha, ed. Bashshar ʿAwwad Maʿruf, vol. 13 (Beirut: Dar al-Gharb al-Islami, 2001), 338, 342 and 426–7. 16 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 107. 17 Fuat Sezgin, Tarikh al-Turath al-ʿArabi, trans. Mahmoud Fahmi Hijazi, ʿArafa Mustafa and ʿAbdullah Hijazi, vol. 3 (Riyadh: Jamiʿat al-Imam Muhammad ibn Saʿud al-Islamiyya, Idarat al-Thaqafa wal-Nashr, 1983), 37–50. 18 Hajji Khalifa, Kashf al-Zunun, vol. 2, 556–7. 19 Al-Thaʿalibi, Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami, vol. 2, 412–15. 20 Ibid., vol. 2, 212–13. 21 Abu al-Fadl al-Yahsubi al-Qadi ʿIyad, Tartib al-Madarik wa-Taqrib al-Masalik li-Maʿrifat Aʿlam Madhhab Malik, vol. 1 (Beirut: Dar Maktabat al-Hayat, 1967), 102–279; Burhan al-Din Ibrahim Ibn Farhun, Al-Dibaj al-Mudhahhab fi Maʿrifat Aʿyan ʿUlamaʾ al-Madhhab (Beirut: Dar al-Kutub al-­ʿIlmiyya, 1996), 56–79; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 175; Ibn al-Nadim, Al-Fihrist, 251; AlYafiʿi, Mirʾat al-Jinan, vol. 1, 387–90; Al-Shirazi, Tabaqat al-Fuqahaʾ, 67–8; Ibn ʿImad, Shadharat al-Dhahab, vol. 1, 465–8; Al-Suyuti, Al-Mamalik bi Manaqib Sayyidina al-Imam Malik, 2–61; Al-­ Zawawi, Manaqib Sayyidina al-Imam Malik, 14–56; Al-Thaʿalibi, Al-Fikr al-Sami, vol. 2, 446–63. 22 Al-Suyuti, Tadrib al-Rawi, vol. 1, 109–10. 23 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 192–3. 24 Zawawi, Manaqib Sayyidina Malik, 25. 25 Al-Suyuti, Tadrib al-Rawi, vol. 1, 88–9; Malik b. Anas, Al-Muwattaʾ, ed. Muhammad Fuʿad Baqi, vol. 1 (Beirut: Dar Hasan al-Turath al-ʿArabi, 1985), 5–9. 26 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 193. 27 Ibn al-Nadim, Al-Fihrist, 338–41; Ibn Farhun, Al-Dibaj, vol. 1, 75; Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 204–7; Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 141. 153

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28 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 251–4; Ibn al-Nadim, Al-Fihrist, 352–4; Al-Shirazi, Tabaqat al-Fuqahaʾ, 71–3; Ibn ʿImad, Shadharat al-Dhahab, vol. 2, 80–2; Al-Thaʿalibi, Al-Fikr al-Sami, vol. 2, 464–7. 29 Ibn al-Nadim, Al-Fihrist, 352. 30 Ibid. 31 Ibid. 32 Abu Bakr Ahmad Al-Khatib al-Baghdadi, Tarikh Baghdad, ed. ʿAbd al-Qadir Mustafa, vol. 2 (­Beirut: Dar al-Kitab al-ʿArabi, 1970), 56–73. 33 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 92–3. 34 Al-Shafiʿi, Kitab al-Risala, ed. Ahmad Muhammad Shakir (Beirut: al-Maktaba al-ʿIlmiyya), 39, 598–9. 35 Ibn al-Qayyim, Iʿlam al-Muwaqqiʿin, vol. 4, 121–2; Al-Shafiʿi, Kitab al-Risala, 596–8. 36 Ibn al-Nadim, Al-Fihrist, 353. 37 Hashim Maʿruf al-Hasani, Tarikh al-Fiqh al-Jaʿ fari ʿArd wa-Dirasa, ed. Muhammad Jawad Mughniya (Cairo: Dar al-Nashr li-l-Jamiʿiyin, 1991), 225. 38 Abu Zuhra, Tarikh al-Madhahib al-Islamiyya (Cairo: Dar al-Fikr al-ʿArabi), 644. 39 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 269–3. 40 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 115–20; Ibn al-Nadim, Al-Fihrist, 384; Al-Shirazi, Tabaqat al-Fuqahaʾ, 76; Ibn ʿImad, Shadharat al-Dhahab, vol. 1, 393–5; Al-Thaʿalibi, Al-Fikr al-Sami, vol. 3, 436–7; Al-Yafiʿi, Mirʾat al-Jinan, vol. 1, 351–2. 41 Ibn al-Nadim, Al-Fihrist, 376. 42 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 244. 43 Abu Muhammad ʿAbd al-Rahman Ibn Abi Hatim, Kitab al-Jarh wa-l-Taʿdil, vol. 1 (Beirut: Dar Hasan al-Turath al-ʿArabi, 1952), 191. 4 4 Ibid; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 115. 45 ʿAbdullah Muhammad al-Jabburi, Fiqh al-Imam al-Awzaʿi: Awwal Tadwin li-Fiqh al-Imam, 2 vols (Baghdad: Matbaʿat al-Irshad, 1977). 46 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 248. 47 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 166; Ibn al-Nadim, Al-Fihrist, 339; Al-Shirazi, Tabaqat al-Fuqahaʾ, 78; Ibn ʿImad, Shadharat al-Dhahab, vol. 1, 457–8. 48 Ibn al-Nadim, Al-Fihrist, 378–4. 49 Ibid., 383. 50 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 93. 51 Ibn al-Qayyim, Iʿlam al-Muwaqqiʿin, vol. 1: 23–7; Al-Shirazi, Tabaqat al-Fuqahaʾ, 91–2; Ibn ­ʿImad, Shadharat al-Dhahab, vol. 2, 224–7; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 325–43; Al-­Thaʿalibi, Al-Fikr al-Sami, vol. 3, 20–8. 52 Ibn al-Qayyim al-Jawziyya explicitly reflected upon Ahmad b. Hanbal’s principles in detail in his Iʿlam al-Muwaqqiʿin, vol. 1, 24–8. 53 Ibn al-Nadim, Al-Fihrist, 378–9. 54 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 193; Al-Shirazi, Tabaqat al-Fuqahaʾ, 92, 101–2; Ibn ʿImad, Shadharat al-Dhahab, vol. 2, 220; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 322; Al-Thaʿalabi, AlFikr al-Sami, vol. 3, 19–20; Ibn al-Nadim, Al-Fihrist, 355; Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 80. 55 Al-Shirazi, Tabaqat al-Fuqahaʾ, 92, 101–2; Ibn ʿImad, Shadharat al-Dhahab, vol. 2, 317; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 11, 47; Al-Thaʿalabi, Al-Fikr al-Sami, vol. 3, 29; Ibn al-Nadim, Al-Fihrist, 362–4; Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 93; Ibn Khaldun, Al-Muqaddima, 428; Sezgin, Tarikh al-Turath, vol. 3, 253; Taj al-Din al-Subki, Tabaqat al-Shafiʿiyya al-Kubra, ed. Mahmud alTanahi and ʿAbd al-Fattah Muhammad al-Hilw, vol. 2 (Cairo: Matbaʿat ʿIsa al-Halabi, 1966), 284.

Selected bibliography and further reading Abu Zuhra, Muhammad. Tarikh al-Madhahib al-Islamiyya (Cairo: Dar al-Fikr al-ʿArabi, 1987). Anas, Malik ibn. Al-Muwattaʾ. Ed. Muhammad Fuʾad Baqi (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, 1985). Bsoul, Labeeb. Formation of Islamic Jurisprudence: From the Time of the Prophetic to the Middle of the 4th Century (New York: Palgrave Macmillan, 2016). Hajjuji, Muhammad b. Hasan al-Thaʿalibi. Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami. Ed. Ayman Salih Shaʿban, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1995). 154

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Ibn Abi Hatim, Abu Muhammad ʿAbd al-Rahman. Kitab al-Jarh wa-l-Taʿdil (Beirut: Dar Ihyaʾ alTurath al-ʿArabi, 1952). Ibn Farhun, Burhan al-Din Ibrahim. Al-Dibaj al-Mudhahhab fi Maʿrifat Aʿyan ʿUlamaʾ al-Madhhab (­Beirut: Dar al-Kutub al-ʿIlmiyya, 1996). Ibn ʿImad, ʿAbd al-Hayy b. Ahmad. Shadharat al-Dhahab fi Akhbar man Dhahab. Ed. Mustafa ʿAbd al-Qadir ʿAta (Beirut: Dar al-Qalam, 1980). Ibn Qayyim al-Jawziyya, Muhammad Abu Bakr. Iʿlam al-Muwaqqiʿin ʿan Rabb al-ʿAlamin. Ed. ʿAbd alRaʾuf Saʿd (Beirut: Dar al-Jalil, 1996). Ibn Qudamah, Abu ʿAbdullah Muhammad b. Ahmad. Manaqib al-Aʾimma al-Arbaʿa. Ed. Sulayman Muslim al-Hurra (Riyadh: Dar al-Muʾayyad, 1995). Jazari, ʿAbd al-Rahman al-. Al-Fiqh ʿla al-Madhahib al-Arbaʿa (Beirut: al-Maktaba al-ʿAsriyya, 2012). Qadi ʿIyad, Abu al-Fadl al-Yahsubi al-. Tartib al-Madarik wa-Taqrib al-Masalik li-Maʿrifat Aʿlam Madhhab Malik (Beirut: Dar Maktabat al-Hayat, 1967). Sayf al-Din, Abu Bakr Muhammad b. Ahmad. Hilyat al-ʿUlamaʾ fi Maʿrifat Madhahib al-Fuqahaʾ. Ed. Yasin Ahmad Ibrahim Daradikh (Amman, Jordan: Maktabat al-Risala al-Haditha, 1988). Shafiʿi, Muhammad b. Idris. Kitab al-Risala. Ed. Ahmad Muhammad Shakir (Beirut: al-Maktaba al-ʿIlmiyya, 1978). Shirazi, Abu Is-haq Ibrahim b. ʿAli al-Fayruzabadi. Tabaqat al-Fuqahaʾ. Ed. Ihsan ʿAbbas (Beirut: Dar al-Raʾid al-ʿArabi, 1970).

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8 Qadis and muftis Judicial authority and the social practice of Islamic law Delfina Serrano Ruano

Qadis and muftis play an essential role in realizing the duty to ensure justice in this world and salvation in the next through interpreting, adapting and implementing the mandates of Islamic sacred law (Shariʿah) for the community of believers and in its name. Both functions converge in the Shariʿah court as long as consulting with a mufti before issuing judgment is either recommended or mandatory, or to the extent that the litigants address a mufti at their own initiative in the hope that a legal opinion concerning their case will shift the balance in their favour. A significant part of their activities is also dedicated to providing a dispute resolution advice alternative to litigation in court. The legal and religious symbolisms inherent in both roles bring about the possibility of exerting a high degree of social and political influence. Their power and authority are also enhanced by the performance of extra-legal, sometimes even informal, tasks.

1  Definitions, sources and state of the art A qadi is a judge on whom the ruler delegates the task of imparting justice according to the principles of the Shariʿah. A mufti is a religious scholar (ʿa¯ lim) who issues non-binding advisory and explanatory opinions (fatwa) at the request of others, sometimes in connection with litigation, sometimes not, on matters covered by the Shariʿah, which at times trespass the limits of fiqh to touch theology, mysticism, ethics, proper conduct, etc. Qadis are distinct from other officials enjoying adjudicative competences. Their singularity with respect to governmental judges relies in the obligation to judge according to the Shariʿah which, given the strict evidentiary rules established by the latter, limits qadis’ capacities to take the corresponding course of action, especially in penal matters. Yet the bond with the Shariʿah confers on the office a sacrosanct character that, at least in theory, lends it independence and freedom from the ruler’s pressure and interference. Contrary to the arbitrator (h ․akam) the qadi’s appointment is official and general, that is to say, not restricted to the particular case put in his hands by the parties. Though they can be reversed or reviewed under certain conditions, qadis’ judgments (h․ukm, qad․a¯ ’), contrary to fatwas, are binding. Yet in the long term a mufti’s opinion may end up carrying much more authority and strength than judgments; the latter’s validity is restricted to the case in connection to which they were issued, whereas the import 156

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of fatwas, though prompted by a specific set of circumstances, is considered to be of general application when similar factual conditions are met. Qadiship is an official institution while muftis used to operate as freelance consultants, except those attached to a qadi’s advisory council (shu¯ra¯ ). Legal interpretation (ifta¯ ’) lost much of its independent and informal aspect with the Ottomans, however.

1.1 Sources Our main pool of information regarding the chronological development of qadis’ and muftis’ role in society is provided by written legal sources themselves, especially those more concerned with the practical aspects of Islamic legal doctrine ( fiqh; furu¯ʿ of fiqh) like collections of fatwas and legal cases ( fatwas, nawa¯ zil, masa¯ ’il). These sources show qadis and muftis in the daily performance of their functions whereas biographical dictionaries of scholars help contextualize their activities in their proper time and place. Compilations of legal doctrine and opinions in their various genres, treatises on the inspection of morals and the markets (h․isba), collections of model notarial forms (watha¯ ʾiq, shuru¯․t) and very especially works for the instruction of judges and legal interpreters (adab al-qadi; adab al-mufti) are more concerned with promoting an ideal conception of eligibility, competences and behaviour. However they are extremely useful to observe jurists’ strategies to impose themselves as the requisite candidates to perform religio-legal functions, to raise as the supreme interpreters of the Shariʿah and to challenge control of their activity and limitation of their competences and influence on the part of the ruler by playing governmental judges against qadis (e.g. assigning to the former competences theoretically exclusive to the latter). A much closer look at qadis’ daily activities is possible through court records (sijills), which qadis are known to have kept but which have mostly disappeared for the period before 1500. Massive proportions of this kind of source material are available after that date, however, for regions matching today’s Turkey, Syria, Lebanon, Egypt, Greece and Bulgaria, thanks to the Ottoman practice of keeping systematic archives. Students of contemporary qadiship can draw on the judicial archives of modern ­nation-states and on direct observation, as practiced by legal anthropologists. Specialized internet sites and the mass media, along with private and public institutions charged with issuing fatwas, provide the new source of information about the continued authority of muftis as interpreters of what it means to live today in compliance with the principles of the Shariʿah for both the state and the general public.

1.2  State of the art1 Given that qadis are the emblem of a state judicial system closely connected with the emergence of a centralizing political power, they have attracted a fair amount of attention among students of Islamic history, law and society. Characterizations of qadis have now overcome approaches that privileged the views of the elites and of courtly circles, among them jurists’ self-depictions of the political, religious and social dimension of their office. The static, uniform, hierarchical and all-embracing configuration with which qadiship was occasionally described has given way to more nuanced and contextualized approaches considering the variations of time and place and the complexities of the, at times collaborative, at times confrontational, and for the most part, symbiotic relationship of qadis with rulers, from whom qadis derived their appointments and their authority, and whose legitimization, given the religious nature of their assignments, they were able to enhance in their turn. The social 157

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dimension of qadiship has been explored from different directions: the contents and sources of qadis’ judgments, the extra-legal functions and roles performed by qadis, the selection criteria applied to and by them (e.g. their social extraction, the habilitation of professional witnesses), judicial corruption - the latter revealing a social sub-system with distinct values2 and the chief qadi’s court as a singular space at odds with ordinary courts revealing the political workings of judgeship.3 Recent scholarship has also demonstrated that factors like arbitrariness and irrationality are no longer valid to explain qadis’ adjudicative performances. Concerned researchers can work now with a better awareness of the risks of ‘essentializing’ qadiship, e.g. by making conclusions drawn from direct observation of a single judge’s activities general and applicable to all his counterparts irrespective of context. With the exception of the recent phenomenon of cyber- and TV muftis, interest for Islamic legal interpretation and its makers has resulted from the need to resort to the abundant information about social and economic history provided by fatwas and not vice versa. This methodological shift has contributed to raise the interest for Ottoman muftis as well, notwithstanding the greater availability of court records and the increased institutionalization of the office during that period. A better understanding of the role of the mufti and its relevance to the Islamic judicial process has also contributed to stress the need to address the adjudicative aspects of Islamic justice jointly with the advisory functions performed by the mufti. Some assign the latter a leading role in the Islamic judicial system; others consider the actual decisions taken by qadis and their materialization in certified legal documents as embodying the very concept of Islamic law.4 The relevance of documents in the Islamic judicial process assigns a privileged role to professional witnesses and thus changes the political and social status of the qadi having appointed them.5

2  Qadis and muftis in chronological perspective Both the religious symbolism of qadiship and muftiship and the legal, social and political scope of their performances, have managed to resist the passage of time; not intact, however. Both functions have been subject to a high degree of variation along political and spatial lines a summary of which follows in a chronological narrative6 emphasizing the major shifts in institutionalization, centralization and hierarchy produced during the Ottoman, the colonial and the contemporary periods. Though it would be problematic to place the origin of the office of the qadi and the mufti in the Qurʾan and the Prophetic Sunnah, i.e. the main textual sources of the Shariʿah, they can be safely taken to reflect assumptions about justice and its makers in pre-Islamic Arabia and in the early Islamic imagination that became relevant in the emergence of the Shariʿah judge and interpreter as we know them today.

2.1 Qadis The two Arabic stems commonly associated with imparting justice in Islam (h ․-k-m and q-d․-y) are present in the Qurʾan. The former is used in connection with Muhammad’s activities as judge and arbitrator (e.g. Qurʾan 4:65, 105; 5:42; 48:9; 24:48,51), whereas the latter appears only as a verbal noun (qad․a¯ ʾ) in the sense of command by God, authoritative decision by His Prophet and the Last Judgement. Descriptions of the Prophet playing the role of arbitrator or deciding disputes by means of a judgement in the Qurʾan and the Sunnah established the moral ideal subsequent Muslim judges were expected to fulfill. The double function of ruler and judge exerted by the Prophet continued to be performed directly by his immediate successors and well into the 158

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Umayyad period, though with the establishment of the garrison towns, judicial competences started to be delegated to judges designated as qadis on a regular basis. They had the mission to administer justice according to their understanding of what Islamic sacred law looked like at the time. Apart from the contents, or the spirit, of the Qurʾan, the source of qadis’ decisions might also include the precedents established by Muhammad and the four rightly guided caliphs, local custom and, in case of doubt or lack of clear guidance, good judgement and personal discretion. Initially, qadis were appointed by caliphs though by the end of the first/seventh century they started to be appointed by provincial governors as well; their jurisdiction went beyond the limits of the garrison towns to reach other major centres and the countryside, and to include non-Muslims. A constant trait of qadiship for the whole pre-modern period was the combination of the duty to impart justice with the performance of non-strictly judicial assignments like collecting taxes, diplomatic missions, leading the Friday prayer, guarding the interests of orphans, supervising the Public Treasury, administering charitable endowments, etc. The relevance of the latter tasks and the power and influence involved in their performance become particularly evident when the ruler tries to take hold of those public funds to meet personal interests or appoints a supervisor of his own to overcome the qadi’s reluctance,7 whereby retrieving the said competence may be presented as signalling a return to the rule of law and respect for the Shariʿah. With the expansion of the Islamic empire, the growing sophistication of the state apparatus, the emergence of fiqh as a scholarly discipline and of interpretive schools of law (madhhabs), qadiship developed into a professional occupation, and experts in Islamic religious sciences – fiqh in particular – became the ideal candidates to fill the position. As the judiciary became more professional, qadis started to receive regular salaries. These increased considerably from the end of the eighth century CE onwards, rendering the position more attractive and vulnerable to corruption. However relevant scholarly merits and ethical values may have been, ethnic, tribal and family affinities are also known to have played a significant role in a ruler’s decision to appoint a qadi because of the position’s potential to disseminate official ideology and to control the local communities. Given the tensions between central power and the provinces and the intermediation between the rulers and their subjects traditionally exerted by religious scholars on the grounds of their capacity to influence both realms, the latter aim might occasionally be sought by appointing a non-local or someone disconnected from the local elites (e.g. a recent convert to Islam). Shariʿah justice as a marker of the extension or intensification of state control over rural areas becomes particularly salient when the administration of justice in small towns and even villages, thus far exerted by a regular judge (h․a¯ kim) or a delegate from the capital (na¯ʾib), is entrusted to a qadi.8 As to qadis’ legal competences, variation along dynastical, geographical and temporal lines is the constant. If, according to the theoretical definition of qadiship elaborated by jurists, the Shariʿah judge is the judge par excellence in all areas of the law, in practice, qadis’ competences depended on the will of the appointing authority, with a marked tendency to entrust the repression of crimes and torts, the inspection of morals and the markets, and the maintenance of public order (shurt․a, ․hisba) to non-qadi judges and military governors. The ruler, on the other hand, retained the power to do justice in person and exerted it quite often, directly or by means of a specific state official, in case of the petitions and complaints of their subjects (maz ․a¯ lim) about administrative and judicial abuses. Occasionally, complaints received by the ruler were redirected to a qadi for their resolution whereby the process became subject to Shariʿah rules rather than the siya¯ sa or governmental justice applied by non-qadi judges, siya¯ sa being not a secular law devoid of religious connotations but less strict than the Shariʿah especially as far as evidence, judicial procedure and the prohibition of torture was concerned.9 159

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The creation of the figure of the chief qadi (qadi al-qud ․a¯ t) by the Abbasid caliph Harun alRashid (r. 786–809) is considered a major step in the consolidation of state control over the judiciary. No doubt the dignity implied a singular position with the ruler which translated into certain privileges with respect to other judges. Holders of the office used to be entrusted the task to appoint and dismiss provincial qadis and to supervise their performance along with that of their staff. Yet the assumption that these competences were assigned systematically and that pre-Ottoman chief qadis stood at the head of a centralized and hierarchically organized judicial system is not always supported by the sources.10 Using a distinctive title to refer to the chief qadi might signal a break with and independence from central power (e.g. the office of qadi al-jama¯ ʿa introduced by the Umayyads in al-Andalus). At certain periods there were several chief qadis in a single political realm (e.g. Mamluk Egypt) occasionally bearing different titles (e.g. qadi al-jama¯ ʿa and qadi al-qud․a¯ t in 11th- and 12th-century ­a l-Andalus and Far Maghrib). In principle it may be assumed that a strong central power is less dependent on the religious legitimacy provided by the ʿulama¯ʾ and, hence, on the symbolic representation of that power by Shariʿah judges; those historical cases in which qadis managed to exert a high degree of social and political influence11 would have been possible mainly because of political crisis and territorial fragmentation. Conversely, the failure of the Abbasid caliph al-Maʾmun’s attempt to monopolize the definition of religious orthodoxy in 849 (i.e. the so-called mih ․na or inquisition) has been traditionally understood as opening a new era in which control over the elaboration and the implementation of Islamic sacred law reverted to the religious scholars to the exclusion of the ruler. Yet this moment also marked a decline in the status of the chief qadi as the main representative of central power to the benefit of the vizier. Conversely, as the Almohad and Ottoman experiences appear to indicate, a ruler’s or dynasty’s greater capacity to intervene in legislation and a tighter control of the judiciary does not necessarily bring about a weakening of chief qadiship or a limitation of the competences and influence of Shariʿah judges. A single qadi’s jurisdiction might include several towns of varying relevance, with their districts. For all the pre-modern period, qadi courts (mah ․kama, mah․a¯ kim) were presided over by a single person, assisted, depending on the size and relevance of the jurisdiction in question, by a secretary (ka¯ tib, amı¯n), professional witnesses (ʿudu¯l), a chamberlain ( jilwa¯ z), henchmen (aʿwa¯ n), and deputies (nuwwa¯ b), if the attribution to appoint the latter was given by the appointing authority. Qadis were encouraged to consult on their judgments with muftis, especially when the case at hand required the application of bodily punishment, raised a difficult legal question or had sensitive political implications. This recommendation became an obligation in certain regions like al-Andalus where the qadi’s tribunal included an advisory council (majlis al-shu¯ra) made up by legal experts selected by the qadi. Judicial consultation could also involve legal experts other than the members of the shu¯ra¯ . The latter consultative body might also offer legal advice to the ruler. The qadi and the members of his tribunal convened to receive the litigants and decide their cases in the qadi’s domicile or in the mosque. These were public sessions open to women as well as dhimmı¯s. Female litigants were given the option either to appear in court, to dictate their claims and counterclaims to the secretary, or to act by means of an agent (wakı¯l). Disputes involving dhimmı¯s alone could be voluntarily submitted to the qadi to be decided according to Islamic law. The pre-Ottoman Islamic court was thus not bound to a given physical space but to the judge’s person. He was the custodian of the court archive (dı¯wa¯ n) – which he had normally received from his predecessor – together with documents relative to detainees in prisons, whom he was to oversee. The archive included all the documents kept 160

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by the judge. They used to be of two types: mah․․dar and sijill. The former is a record of the litigants’ actions and claims, of their witnesses’ declarations made in the presence of the qadi in connection with an individual case, and of the result of the qadi’s investigation concerning that case. It was prepared by the secretary and signed by the qadi before the court witnesses. The sijill is a witnessed collective recollection of each mah․․dar that includes the judgment issued by the qadi in each case. The dı¯wa¯ n was also composed of a list of approved witnesses, a register of supervisors of endowments and guardians appointed by the qadi, a list of endowed properties and bequests, account sheets concerning the properties under the supervision of the court (e.g. deposits, endowments, property belonging to orphans, widows, etc.), certified legal documents, and the court communications and correspondence. Qadis were instructed to issue judgment according to the doctrine of a given legal school (madhhab), normally the one they adhered to. As in the case of judges in any other legal system, qadis’ decisions were also informed by socio-cultural norms, established judicial practices, local customs and their personal appraisal of the circumstances of the case at hand. More often than not, disputes submitted to a qadi did not end in a formal judgment but in an amicable settlement (s¸ulh․) or in judicial certification.12 The qualifications to be met by the ideal candidate to qadiship, the conditions rendering valid his appointment, and the nature and extent of his competences were established by jurists themselves, mostly in works dedicated to ‘the craft of judging’ (adab al-qadi). These works have to be used with caution because they do not always reflect actual practice but the ideal it was thought the practice should aspire to, ideals and aspirations being no less relevant to the study of legal systems and societies. Qad․a¯ ’ is described there as a public duty (i.e. a duty towards God) that can be performed by one individual in the name of the community ( fard․ kifa¯ ya). This individual must be an adult Muslim male. Hanafis’ admission of women to serve as qadis in civil matters has not translated into actual appointment of females to the position. A qadi must know the Qurʾan and the Prophetic Sunnah as well as the doctrine of the legal school to which he is affiliated. The question of whether or not he must be able to exercise Ijtiha¯ d or independent legal reasoning is subject to disagreement. A qadi is also expected to be honest, pious and a balanced person. Appointment is not cancelled automatically by the death of the appointer (except for the Shiʿis) but if the selected candidate demonstrates not to be legally competent to pass judgment, he must be dismissed and his judgments reversed. Appointment by an illegitimate ruler (e.g. a non-Muslim ruler) may, according to some, compromise the validity of his decisions.13 A sound qadis’ judgments are reversible also when they are the result of an error of law (e.g. improper interpretation of Qurʾan or Prophetic Sunnah, or disagreement with consensus or ijma¯ ʿ) contrary to errors of fact (e.g. a false or wrong testimony), which do not affect the validity and binding character of judgments. A qadi is presumed to be qualified to perform his office and to have issued correct judgments. His successor is thus not required to investigate the actions of his predecessor unless he has a reason to do so. The judicial system developed by the Abbasids prevailed later in Mughal India and Safavid Iran. The Ottomans followed similar lines and succeeded in co-opting the judiciary to tighten the control of their vast dominions by creating a hierarchical structure headed by the military judges (qadi ʿaskar) and the state mufti (shaykh al-isla¯ m). Next came the qadis of the major towns and cities (mewlewiyets); below them were the qadis of districts (qad․a¯ ’) and sub-districts (nahiya). Governmental legislation (qa¯ nu¯n), initially conceived as a complement to fiqh, started to be compiled and to regulate areas like the powers and the jurisdiction of qadis and local officials whose at times overlapping competences were assigned with a view to ensure mutual checks and balances. State controlled madrasas with a formal syllabus were 161

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instituted for the training of qadis. Sultanic intervention was not limited to restructuring the judiciary but reached the very process of qadis’ decision making; qadis were instructed to issue judgment in accordance not just with a given legal school (the Hanafi) but with the most authoritative opinions within that school, whereby their freedom to opt for the legal opinion they saw as most fitting to the case at hand was restricted. Yet with the Ottomans, qadis performed tasks (e.g. controlling the activities of the craftsmen and the sustainability of buildings, securing the availability of foodstuffs and enforcing economic regulations) that had been elsewhere assigned to other magistrates (e.g. the inspector of the markets; muh․tasib, ․sa¯․hib al-su¯q). The long aspiration not just to monopolize but to exert control over the administration of justice became partly realized by those local qadis entrusted with the monitorization of the activities of other state agents like police officers, whereas qadis’ conduct itself was supervised by the local governor in the name of the Sultan.14 Alongside their judicial and quasi-judicial functions, Ottoman qadis performed a series of military tasks, such as overseeing the safety of the roads or ensuring that craftsmen actually joined the army after an enrolment drive. A significant part of their time was also dedicated to administrative and notarial tasks, sometimes officially assigned to them, sometimes performed voluntarily, in which provincial qadis operated as intermediaries between the central government and the local communities, especially as far as the filing of petitions and complaints to the Sublime Porte was concerned. Important reforms took place in the 19th and 20th centuries as a consequence of European colonization of the Middle East and North Africa and the emergence of Muslim-majority modern nation states. The radical changes these reforms represented for the classical configuration of qadiship have been summarized as follows: 1) abolition of siya¯ sa or discretionary governmental law in favour of the state exerting now exclusive competence over criminal justice; 2) bureaucratization of Shariʿah courts; 3) codification of the Shariʿah; 4) division of the judiciary into two systems: a secular national court system that applies legal codes of Western inspiration and Shariʿah courts keeping jurisdiction over disputes regarding family issues and inheritances applying, in most cases, state-enacted codifications of the relevant fiqh rules; 5) gradual integration of the Shariʿah courts into the national court system. This reform movement had already started in the late Ottoman period when a series of measures were taken to centralize and modernize the administration of the empire of which the legal system was part through the creation of a bureaucracy with jurisdictions and powers, and later on, procedures, clearly defined by enacted laws. The aim was to submit the operation of all the ensuing bureaucratic and judicial organs to identical procedures. Legal predictability was sought by further limiting the capacity of qadis, muftis and other state officials sitting on judicial councils to exert personal discretion. Special courts and councils were created and new codes were enacted in the fields of penal and commercial law, though they did not yet replace fiqh completely nor did the newly created secular courts replace the qadi courts. Yet from 1886 their jurisdiction was limited to issues concerning personal status, family, inheritance, retaliation and blood money, sharing jurisdiction with governmental (niz ․a¯ miyeh) courts whenever homicide was involved. Qadis were instructed to adjudicate certain cases according to qanu¯n rather than fiqh, a requirement they were occasionally reluctant to follow. Their ranks, the duration of their terms and their salaries were fixed by governmental decree. With the foundation of the Republic of Turkey in 1917, qadi courts were abolished and the legal system became entirely secular. However, the reforms introduced in the late Ottoman period had a lasting influence in Egypt, Iran and other areas of the Middle East that remained under Ottoman rule until the First World War and which came to be subsequently 162

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controlled by French and British colonial powers. Ottoman compilations of fiqh rules gave way to codification proper in the realm of the Shariʿah; the fuqaha¯ ʿ were not deprived of the capacity to interpret the Shariʿah but lost the monopoly they had traditionally exerted in that regard to the benefit of the state. In the areas controlled by the French, Italy and the Netherlands, the dual court system and the legal pluralism introduced by the Ottomans remained, with family and inheritance matters under the jurisdiction of religious courts – occasionally applying codified fiqh rather than the standard law books – and the rest administered by secular courts applying laws based on those of the metropolis. The above-mentioned duality persisted after these countries achieved independence. In India and Nigeria, British colonial authorities preserved the local qadi courts for the Muslim population and did not interfere in their outcomes as long as they were deemed compatible with their understanding of ‘natural justice, good conscience and equity’ (e.g. amputation or death by stoning sentences were commuted to imprisonment, but pardon by the victim’s relatives was replaced by the death penalty in cases of murder). A similar pattern was adopted in the Spanish protectorate of northern Morocco, a region that was never part of the Ottoman realm.15 Adaptation of the Shariʿah to British legal and ethical standards brought about the introduction of a series of regulations which gradually modified fiqh provisions, especially in the punishment of crimes and torts, to be eventually replaced by statute law. Colonial experience in India – where no division between ‘secular’ and ‘­religious’ was initially put into operation but a hierarchy of first and appeal instances – has determined the way that Shariʿah is currently applied in Bangladesh, India and Pakistan, where ­‘Anglo-Muhammadan law’ is applied by national regular courts. In Nigeria, and following it, in other African colonies, the British set up ‘native courts’, which enforced, in similar conditions to those seen before, Maliki legal doctrine under the guise of ‘customary law’. Judges were appointed by the local rulers (emirs) with the approval of the British governor. Intervention in the judiciary by colonial powers resonates with the situation of the Muslims in medieval Iberia – the so-called mudéjares – after the Christian conquest of al-Andalus from the beginning of the 13th century CE onwards.16 The jurisdiction of the Shariʿah was established by a non-Muslim authority, qadi courts operated under the supervision and control of an alien power who did not directly appoint but confirmed the candidate selected to preside over them, and, as the British did in India and Nigeria, Shariʿah justice was occasionally administered by Christian representatives of the crown with the assistance and advice of Muslim experts. Today, the Shariʿah is part of the national legal system of all Muslim-majority countries except Turkey and Albania, where the Shariʿah is no longer applied by the courts. The other end of the spectrum is occupied by Iran and Saudi Arabia, whose legal systems are dominated by the Shariʿah. In the remaining cases, the law of the land is of Western inspiration, while personal status, family law, inheritance, endowments and, only in some countries, financial compensations for bodily harm and homicide are ruled by Shariʿah, though on the basis of codes the compilation of which entails making a selection when divergent legal views apply to a single question. Apart from the problem of the criteria and the interests privileged in the selection process, codification reduces the flexibility of the legal doctrine and the judge’s latitude since the possibilities for judges to find a solution fitting specific circumstances are drastically limited in this way. Conversely, the application of codified Shariʿah no longer requires expertise in fiqh. In many countries, the single qadi has been replaced by panels of judges. Courts of appeal have been established occasionally without correlation between religious and non-religious regular and high instances. Moreover Shariʿah courts are almost everywhere controlled by national supreme courts. In Egypt, Tunisia and Algeria Shariʿah courts were 163

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abolished in order to unify the judiciary, whereas in Saudi Arabia, Shariʿah has always dominated the legal system. After Islamist movements took power in Pakistan, Sudan, Iran and, because of popular pressure, northern Nigeria, Shariʿah has been ‘reintroduced’. The result has been a return to a nominally Islamic legal system but not to pre-modern models of judicial organization, nor to a replacement of the former nation-wide, unified and threefold17 court system. In some cases Western inspired codes have been replaced by Shariʿah codes, but these are applied according to the regulations on procedure and evidence established by the previous Western codes. In other cases like Egypt, ‘Islamization’ has been sought by introducing a provision in the Constitution rendering the Shariʿah the ‘main source of legislation’ to which the country’s laws must conform with a very limited practical impact in the legal system. In most Muslim countries women can serve as judges, or as auxiliary judges, in secular courts.

2.2 Muftis If the authority enjoyed by the Shariʿah in modern times were assessed according to what the state codification and state-enacted legislation have in store for qadis, the conclusion would be a decline in its capacity to shape and regulate interpersonal relationships. Yet the historical evolution of muftis – the other essential pillar for the translation of Shariʿah to the society at large – tells a completely different story that is more in line with the result yielded by other testing grounds, as transpired from present-day religious and political discourses. Muftis’ capacity to face the changes brought about by the standardization and nationalization of most legal systems in Muslim majority countries seems to lie in the dual nature of their office. Muftis were and continue to be approached by private individuals informally and independently from political authorities and other legal institutions. At the same time they can receive official appointments from the state to perform as advisers attached to public religious establishments or as muftis of the land. Fatwas, whether issued at the request of a private individual or of official authorities, are considered to have helped to adapt the Shariʿah to changing circumstances better than any other legal genre. The greater availability of fatwas in the pre-Ottoman period has produced the impression that it is thanks to them rather than to qadis’ judgments that a legal doctrine could be elaborated to answer practical needs and adapted to changing circumstances. Fatwas would have been considered worthy of preservation because their applicability transcended the specific circumstances that triggered their issue whereas the validity of judgments would have been limited to the litigations they came to settle. Yet the question of whether or not and to what extent the doctrines included in standard law manuals originate in opinions issued by legal experts and not in legal precedents set by actual judgments is difficult to discern.18 Why the specific circumstances that triggered a fatwa do not impeach the ‘universality’ of its import but do so in the case of a judgment, is not clear to this student either. Whenever the state did not have the capacity to keep systematic archives, the preservation of judicial records depended on the jurists and their contents were lost in most cases, while other, more narrative, legal writings were preserved without a problem. Conversely, when a state decides to compile and archive official documents systematically it is because it has enough capacity and because archives are thought to support the administration of the land and to enhance control over its dwellers. Therefore it is possible to conjecture that the greater availability of fatwas in the pre-Ottoman period is not due, or at least not only, to their capacity to inspire further legal interpretation vis-à-vis judgments and actual legal documents, but to other factors related to jurists’ position in society and the power relations involved in legal writing, documents and 164

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compilations of judgments being more exposed to political instrumentalization than other legal literary products. When local judicial practices (ʿamaliyya¯ t) and customs are wielded by the jurists it is not always with the aim of making the administration of justice more predictable but to assert local idiosyncrasies vis-à-vis central political power.19 That the compilation of fatwas was seen as fostering unquestioned following of earlier legal authorities (taqlı¯d) is shown by the prohibition of engaging in that activity enforced by the Almohads throughout their rule. In as much as taqlı¯d contributes to give unity and stability to the legal schools, banning fatwa collections may also be seen as a means to keep check on their power and explains the jurists’ taste for that literary genre in particular, its success being an illustration of these jurists’ capacity to resist external pressure.20 Formulations condensing the basic features of fatwa giving are already present in the Qurʾan where terms derived from the root f-t-y and its synonyms appear to refer to instances in which Muhammad is consulted about a certain question and God reveals the answer to him (e.g. Qurʾan 2:189, 215, 217, 219, 220, 222; 4:126, 176; 5:5; 7:186; 8:1; 27:85; 28:84; 20:105; 79:42), whereas the need to seek and follow the advice of religious authorities is connected with Qurʾan 4:63 and 16:43. In hadith literature, Muhammad’s legal advice adopts the form of an immediate, of obligatory compliance, response to practical problems. The duty to provide religious guidance was inherited by the Companions, their Successors and those with a good command (ʿilm) of the Qurʾan and the traditions from the Prophet (i.e. ʿulama¯ ʾ). Though lacking the infallibility exclusive to the Prophet, during the first Islamic centuries futya¯ contributed to refine the interpretation of the normative import of the Qurʾan, to collecting and fixing the corpus of the Sunnah, and to the elaboration of a distinctive identity and behavioural model that would crystallize in what we know as the Islamic Shariʿah. Muftis functioned informally and independently from state control at the request of individuals, or groups of individuals, in need of legal advice. To perform as a mufti one needed to be acknowledged as a religious authority and a pious person. No official titles were required; the scholars regulated their activities and established the conditions to exercise them internally. The issuance of fatwas at the request of qadis and provincial governors dates back to the Umayyad period (661–750). By the end of that period, fatwas had become an effective means to express dissent and criticism in public as well as a powerful mechanism of religious legitimization which rulers did not hesitate to use in exchange of lucrative governmental positions if need be, thereby enhancing their capacity to control the jurists. The authority of the ruler could also be denied by means of a fatwa.21 The emergence of fatwa collections from the second half of the tenth century CE onwards and until the present day testifies to the relevance of legal advice in the Islamic judicial system. The literary mould of the fatwa has also contributed to channel the jurists’ interests and concerns in a way to endow the legal establishment with enough uniformity to navigate varying social, economic and political situations, whereby fatwas do also contribute to the stability of the society at large. In 11th-century al-Andalus, muftis occasionally advised non-qadi judges as well.22 By the same time in Khurasan, the shaykh al-isla¯ m of a city was the head of the local ʿulama¯ ʾ and performed as chief mufti. The Mamluks appointed a selected number of muftis to serve in the maz ․a¯ lim courts and as political consultants; they also put muftis in charge of reinforcing their authority in the main cities of Egypt and Syria. As happened with the qadis, under the Ottomans, muftis were gradually incorporated into a centralized judicial administration. The position of shaykh al-isla¯ m (s¸eyhülislam) or supreme mufti of the empire was introduced by Sultan Murad II (1421–1451). Based in Istambul, the capital, the holder of this position stood at the head of a complex hierarchy of 165

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provincial muftis and supported with his fatwas every important decision on domestic and foreign policy that was taken by the sultans, including the legal and administrative reforms of the 19th century ‘new regime’ era (Niz ․a¯ m-i Jadı¯d) and matters regulated by qanu¯n or state law. As his workload increased, his office underwent a process of bureaucratization; an official department for issuing fatwas ( fetvas) was created and assigned a professional staff and a supervisor to assist him. Involvement in the Ottoman defence and commercial relationships with foreign powers also made the S¸eyhülislam a relevant diplomat figure and a valuable cross-confessional ally and intermediary.23 The status and functions of provincial muftis varied. In the Anatolian and European provinces, muftis were not experts in religious sciences but local elders who were called on by qadis to confer authority on their decisions. In the Arab provinces, however, they continued to operate in the traditional way. Queries used to be rewritten by scribes to facilitate brief answers from the muftis. Among the Shiʿis in Iran, Central Asia and South Asia muftis used to be referred to with the terms mujtahid or faqı¯h. In time, they claimed for themselves the representation of the hidden ima¯ m and could operate quite independently from the state. The highest temporal authority among them came to be embodied by the marjaʿ ai-taqlı¯d, This figure, by virtue of his scholarly and moral merits had to be considered a unique model of reference during his lifetime and was in charge of guiding his followers with fatwas and other works meant to clarify doubts and practical problems. The fatwa of a Shiʿi mufti is binding. In Safavid Iran (1501–1722) the role of chief mufti and head of the religious scholars was not played by the shaykh al-isla¯ m but by the ․sadr, who was also in charge of appointing qadis and of supervising charitable endowments. In Timurid Central Asia he was in charge of all religious matters and of issuing fatwas. In the Indian subcontinent and Central Asia judges were not obliged to consult with a legal expert and muftis were not officially attached to courts; the term fatwa did not necessarily mean the answer to a specific question and could be used as a synonym of qawl or legal opinion dealing with issues that used to arise in practice. More interestingly, pre-modern Indian fatwas were collected at the ruler’s initiative apparently with the intention to provide the basis for the decisions of state courts. Sharing knowledge and giving instruction about the correct interpretation of the Shariʿah is a societal duty ( fard․ kifa¯ ya) that obliges those in possession of religious knowledge (ʿilm) with respect to lay or less learned believers. If those who are in a position to fulfil the duty are identified with the heirs of the Prophet, they also run the risk to be held morally accountable for the sins and mistakes committed by their petitioners for following the wrong advice. This dilemma was solved by exempting the mufti from any responsibility as long as he meets the necessary conditions to perform the function and he acts in good faith: ‘Every legal interpreter is correct, if he is right he will be rewarded twice in the afterlife; if he errs, he will receive only one reward’. Further on, a disclaimer in the form of ‘God knows best’ (Alla¯ hu aʿlam) is included in almost every fatwa. Ideally, a mufti should be a mujtahid, i.e. a learned jurist capable of finding the ruling (h․ukm) appropriate for a specific legal question in the sources of the Shariʿah, independently of law schools. Yet theorists had to concede that binding the legitimacy of legal advice to the capacity of engaging in independent legal interpretation was unrealistic and ended up by admitting lower levels of competence like the mujtahid al-madhhab, or even that of the muqallid. In the first case, the scope of Ijtiha¯ d was restricted to the doctrine of a specific legal school; the latter was allowed to issue fatwas following the opinions of the leading authorities of his school or, in case of internal divergence of opinions (ikhtila¯ f ), the majority opinion (mashhu¯r). 166

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The formal conditions to perform as a mufti are similar to those required of a qadi with a stress on the need to be, and identify oneself as, a jurist and the particularity of the admission of slaves and women to perform the duty. A qadi may issue fatwas concerning questions unrelated to litigations presented before him. The elaboration of the fatwa follows the evaluation of legal indications (adilla) in the sources whereas that of the judgment results from evidentiary arguments (h ․ijaj) like testimony, acknowledgements and oaths. Muftis strive to find out the law corresponding to a given set of facts while qadis strive to establish facts, assuming a set of laws. A fatwa is informative (khabarı¯) while a judgment is creative (insha¯ ’ı¯). Private muftis were supposed to give fatwas for free, though the practice to establish pious endowments to provide for their material needs was widespread. In other cases, fees were collected from questioners or their maintenance was assumed by the community or by the public treasury, etc. Official muftis for their part received a salary or a fee. Implied in the process of answering a query are complex ethical, social and interpretive relations, such as the confidence the petitioner puts in the mufti’s qualifications and in his capacity to dissipate confusion, the power the mufti can to exert over the mustaftı¯ on account of the cultural capital represented by his knowledge of the Shariʿah, but also the shift in moral and ethical responsibility involved in the very fact of asking, obliging the mufti to act in accordance with the dignity of his function. Fatwas could be delivered orally and many of them have probably left no documentary trace. From among written fatwas, only the relevant ones have been collected and preserved. Yet Ottoman archives and certain schools in India preserve large number of ordinary fatwas. A concise, even laconic fatwa is very likely addressed at a non-specialist while an elaborate one that is argued at length can be assumed to be delivered at the request of a jurist. Conventions regarding the physical appearance of the text of the fatwa (e.g. using a single pen and a single piece of paper, the need to append the mufti’s signature, etc.) also contribute to enhance its authority and that of its issuer. Given that fatwas are not binding, an unsatisfied petitioner might seek a second opinion from another jurist. Muftis engaged by competing litigants could end up playing a role similar to that of the defence counsel. In that capacity, fatwas fostered people’s capacity to seek justice in courts and to face abuse by judges and other state agents. Since they refer to actual legal problems and scholarly concerns, both the istifta¯ ʾs and their answers are important sources for historians. They are legal in nature, however, reflecting jurists and their interests in first instance; their drafting involves a considerable degree of literary construction and the facts mentioned in them must be treated with caution before taking them as representative of their time and place.24 A major shift in the production and reception of fatwas took place when print was introduced in the central Islamic lands at the beginning of the 17th century. Apart from books, fatwas started to be published in newspapers, magazines and journals, and legal opinions drawn from official records started to appear in gazettes. It was not only a matter of dissemination on a faster and wider transnational scale; format changes also brought about shifts in their language and style. During the colonial period, the religious guide provided by muftis was occasionally taken over by the madrasas. In many cases, fatwas became tools for mobilizing the population in the struggle against external dominance (not just political and military but also cultural and commercial) and for national independence.25 Today, the power relations involved in futya¯, i.e. the process and mechanism of issuing a fatwa, have been altered by the changes experienced in the notion of knowledge, its modes of transmission, the increase in the levels of literacy and modern technologies. The supremacy of fiqh over the definition of law has been lost in favour of new modes of specialized knowledge 167

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and Western-style law; lawyers and law professors trained in mainstream academic institutions have displaced the fuqaha¯ʿ as legal professionals. With codification, the already restricted scope left for the interpretation of the Shariʿah passed from the hands of individual jurists to national legislative bodies. Fiqh is taught in Islamic institutes and specialized law schools and specific academic programmes for the training of muftis have been established in institutions like al-Azhar in Egypt. Specialized committees charged with collective fatwa giving have appeared in many countries, including Western ones, at times as an outgrowth of colonial madrasas. Some of these organizations have been established by Muslim governments themselves with the aim of controlling fatwa giving and to provide non-binding guidance to the state. They have been attached to religious ministries, rather than the more contentious justice departments. The most famous are in Egypt, Saudi Arabia, Lebanon, Malaysia, Indonesia and Yemen. They are staffed by state-appointed muftis and their activities are regulated by legislation. The staff may occasionally include women, entrusted with the task of giving advice to other women.26 In Saudi Arabia, for example, the guidance provided by official muftis is closely associated with the propagation of state religious ideology. Here, as elsewhere, official fatwas provide religious legitimacy to the state.27 In Iran, fatwas were used to endorse the creation of institutions like the Council for the Islamic Revolution and the Parliament. Modern muftis continue to perform as judicial consultants in those areas still ruled by the Shariʿah; earlier fatwas continue to be regarded as authoritative and to provide the basis for judgments. Despite the decline of the Shariʿah in governmental legislation and governments, efforts to control muftis’ activities, fatwas are still a vehicle for the expression of collective sentiment, a channel for social and political activism, and a means to accommodate new societal conditions brought about by economic, political, scientific and technological developments, though some show little flexibility and ignore social change. Contemporary muftis’ doctrinal frame is no longer restricted to a single legal school and they refer directly to the Qurʾan and the prophetic Sunnah. Certain fatwas (e.g. Ayatollah Khomeini’s condemnation of Salman Rushdie or Egypt’s Grand Mufti Ali Jumʿa’s call against female mutilation) have had a global impact and the term has entered the mind of the average world citizen. The modern era has also seen individuals without legal training issuing fatwas (e.g. Usama ben Laden’s call to attack Western interests).28 Literacy on the part of the petitioner, or the mediation of a scribe, is no longer requisite to ask for a fatwa. Radio and television channels dedicate special shows to issuing fatwas in real-time. With the turn of the century, radio cassette, video and CD fatwa recordings were superseded by the new communication means made available through the internet. Today, cyber muftis and depersonalized online fatwa sites are widespread phenomena. In past times, questioners included men and women from all social extractions, whereas those seeking spiritual and legal advice in the web are mostly, though not exclusively, women and Muslims living in Western countries.

Notes 1 For a recent overview of the state of the scholarship on qadis, see M. Tillier, Les cadis d’Iraq et l’état abbaside (132/750–334/945) (Damascus: Institut Français du Proche-Orient, 2009), 4–12. 2 See B. Johansen, ‘La corruption: un délit contre l’ordre social. Les qa¯ dı¯-s de Bukha¯ ra¯ ’. Annales. Histoire, Sciences Sociales 57/6 (2002): 1561–89. 3 See Tillier, Les cadis d’Iraq et l’état abbaside, chapter VI. 4 See D. S. Powers, Law, Society and Culture in the Maghrib 1300–1500 (Cambridge: Cambridge University Press, 2009); C. Müller, Der Kadi und seine Zeugen, Studie der mamlukischen H ․ aram-Dokumente aus Jerusalem (Wiesbaden: Harrassowitz Verlag, 2013). 5 See B. Johansen, ‘Formes de Langage et Fonctions Publiques: Stéréotypes, Témoins et Offices dans la Preuve par l’Ecrit en Droit Musulman’, Arabica 44 (1997): 333–76. 168

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6 Unless indicated otherwise, this narrative follows the structure and engages with the contents of M.  K. Masud, R. Peters and Powers, ‘Qa¯․d¯ı s and Their Courts: An Historical Survey’, in M. K. Masud, R. Peters and D. S. Powers (eds), Dispensing Justice in Islam: Qadis and Their Judgments (Leiden: Brill, 2006), 1–44; M. K. Masud, B. Messick and D. Powers, ‘Muftis, Fatwas and Islamic Legal Interpretation’, in M. K. Masud, B. Messick and D. Powers (eds), Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge, MA and London: Harvard University Press, 1996), 3–32; Masud et al., ‘Fatwa¯ ’, in The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online. http://www. oxfordislamicstudies.com/article/opr/t236/e0243 (accessed 24 July 2018). 7 See C. Müller, Gerichtspraxis im Stadtstaat Córdoba, Zum Recht der Gesellschaft in einer malikitisch-­ islamischen Rechtstradition des 5./11. Jahrhunderts (Leiden: Brill, 1999), 181–2; D. Serrano Ruano, ‘Judicial Pluralism under the “Berber Empires” (Last Quarter of the 11th century C.E./First Half of the 13th Century C.E.)’, Bulletin d’Études Orientales, Special issue on Le pluralisme Judiciaire dans l’Islam prémoderne sous la direction de Mathieu Tillier, 63 (2014): 249–50. 8 For the case of the Almohad empire, see Serrano Ruano, ‘Judicial Pluralism under the “Berber Empires”’, 260–70. 9 See K. Vikør, Between God and the Sultan: A History of Islamic Law (London: Hurst & Company, 2005). 10 See M. Tillier, Les cadis d’Iraq et l’état, ch. I, section 5. 11 Occasionally having led them to assume power in person. See the cases documented by Maribel Fierro for the pre-modern Islamic West in ‘The Qa¯․d¯ı as Ruler’, in Saber religioso y poder político en el Islam (Madrid: Agencia Española de Cooperación Internacional, 1994), 71–116. 12 The later aspect has been explored by Christian Müller in ‘Settling Litigation without Judgment: The Importance of a H ․ ukm in Qa¯․d¯ı Cases of Mamlu¯k Jerusalem’, in Masud, Peters and Powers (eds), Dispensing Justice in Islam, 47–69. 13 A. Verskin, Islamic Law and the Crisis of the Reconquista: The Debate on the Status of Muslim Communities in Christendom (Leiden: Brill, 2015), 61–82. 14 See B. Ergene, Local Court, Provincial Society and Justice in the Ottoman Empire: Legal Practice and Dispute Resolution in Çankiri and Kastamonu (1652–1744) (Leiden: Brill, 2003), 43–55. 15 On the judicial aspects of the Spanish colonial experience in Morocco, see M. Feria, ‘La justicia indígena en la Zona Jalifiana del Protectorado español en Marruecos’, Awraq, Estudios sobre el mundo árabe contemporáneo XIX (1998): 143–79. 16 A. Echevarria, ‘De cadí a alcalde mayor: la élite judicial mudéjar en el siglo XV’, Al-Qant․ara 24/1&2 (2003): 139–68 and 273–89. For the case of Sicily, see A. Metcalfe, ‘The Muslims of Sicily under Christian Rule’, in G. A. Loud and A. J. Metcalfe (eds), The Society of Norman Italy (Leiden: Brill, 2002), 289–318. 17 Regular, appeal and supreme courts. 18 See also Masud, Messick and Powers, ‘Muftis, Fatwas and Islamic Legal Interpretation’, 19, where the difference between fatwa and judgment is discussed drawing on Ibn Taymiyya and Ibn Qayyim al-Jawziyya. According to both Hanbali jurists, the authority of judgments is specific (kha¯․s․s) while that of a fatwa is general (ʿa¯ mm). In Ibn Qayyim al-Jawziyya’s view, rulings were not entered into Shariʾah court records with the intention of serving as precedents and referents and were not published, whereas important fatwas used to be collected in books and were widely cited and circulated which enhanced their capacity to shape the law. It is in this connection that the role of the mufti as a human interpreter of the sacred law may be seen as even greater than that of the judge. In my view, however, the point that the validity of judgments was limited to the litigations at hand and that they did not set legal precedents should be taken with caution; certain judgments are known to have established legal precedents and these legal precedents are cited in legal sources as arguments of authority (e.g. in collections of model legal documents). Pre-Ottoman court records were not kept for referencing purposes, but this did not preclude their use as sources for the compilation of fatwas and legal cases (nawa¯ zil) like the works of the Malikis Ibn Sahl (al-Andalus, d. 1093) and Muh․ ammad b. `Iya¯ d․ (al-Andalus and the Far Magrib, d. 1179) show. The former drew on court records he had access to after his experience as a qadi and judicial secretary to write his Kita¯ b alAh․ka¯ m al-Kubrà. The second used materials from Ceuta’s court records to compile his Madha¯ hib al-H ․ ukka¯ m fı¯ Nawa¯ zil al-Ah ․ka¯ m. See D. Serrano Ruano, ‘Legal Practice in an Andalusı¯-Maghribı¯ Source from the Twelfth Century’, Islamic Law and Society 7/2 (2000): 187–234. 19 For the case of the legal practice of the city of Tunis under H ․ afs․id rule, see J.-P. Van Staevel, ‘Almohades et ma¯ likites de Tunis: Réflexions sur les relations entre élites civiles et gouvernants dans l’Ifrı¯qiya des VIe/XIIe-VIIIe/XIVe siècles’, in P. Cressier, M. Fierro and L. Molina (eds), Los almohades, problemas y perspectivas (Madrid: CSIC, 2005), 937–73. 169

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20 See Serrano Ruano, ‘Judicial Pluralism under the “Berber Empires”’, 260–1, 266. 21 Like the ‘condemnation’ of Boabdil, the last Nasrid king of Granada, issued by a number of local fuqaha¯ ʿ, or the fatwa declaring that the Ottoman sultan Murad V was insane, on the grounds of which he was deposed in 1876. 22 See Müller, Gerichtspraxis im Stadtstaat Córdoba, 247–362. 23 See Joshua M. White, ‘Fetva Diplomacy: The Ottoman S¸eyhülislam as Trans-Imperial Intermediary’, Journal of Early Modern History 19/2&3 (2015): 199–221. 24 See M. Fadel ‘Fatwas and Social History’, Al-`Us․u¯r al-Wust․à 8/2 (1996): 32–4; M. Shatzmiller, ‘On Fatwas and Social History’, Al-ʿUs․u¯r al-Wust․à, 9/1 (1997): 20–1. 25 See J. Hendrickson, ‘Muslim Legal Responses to Portuguese Occupation in Late Fifteenth-­ Century North Africa’, Journal of Spanish Cultural Studies 12/3 (2011): 309–25; Verskin, Islamic Law and the Crisis of the Reconquista, 106–28. 26 Like the female muftis attached to the Fatwa Department reporting to Abu Dhabi’s General ­Authority of Islamic Affairs and Endowments. See https://www.theguardian.com/world/2016/aug/20/heard-­ everything-women-fatwa-hotline-abu-dhabi?CMP=Share_iOSApp_Other. Courtesy of ­Justin Stearns. 27 Sometimes endorsing controversial decisions like ex-President Mohamed Morsi’s death sentence (http://www.middleeasteye.net/news/morsi-death-sentence-endorsed-egypts-mufti-websitesays-387631593). 28 The contents of which were denounced and condemned in the ‘Amman Message’. See Dallal, section on Modern Usage in Masud et al., ‘Fatwa¯ ’, 13–14.

Selected bibliography and further reading Bunt, Gary R. Islam in the Digital Age: E-Jihad, Online Fatwas, and Cyber Islamic Environment (London: Pluto Press, 2008). Hallaq, Wael. ‘From Fatwa¯ s to Furu¯ʿ: Growth and Change in Islamic Substantive Law’. Islamic Law and Society 1/1 (1994): 29–65. Heyd, Uriel. ‘Some Aspects of the Ottoman Fetva’. Bulletin of the School of Oriental and African Studies 32/1 (1969): 35–56. Masud, Muhammad Khalid, Joseph A. Kéchichian, Brinkley Messick, Joseph A. Kéchichian, Ahmad S. Dallal and Jocelyn Hendrickson. ‘Fatwa¯ ’. In The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online. http://www.oxfordislamicstudies.com/article/opr/t236/e0243 (accessed 24 July 2018). Masud, Muhammad Khalid, Rudolph Peters and David Powers (eds). Dispensing Justice in Islam: Qadis and Their Judgments (Leiden, Brill, 2006). Masud, Muhammad Khalid, Brinckley Messick and David Powers (eds). Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge, MA and London: Harvard University Press, 1996). Masud, Muhammad Khalid. ‘Adab al-muftı¯’. In Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://­referenceworks.­brillonline. com/entries/encyclopaedia-of-islam-3/adab-al-mufti-COM_26301 (accessed 24 July 2018). Masud, Muhammad Khalid. ‘Adab al-qa¯ d․¯ı ’. In Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://referenceworks.­ brillonline.com/entries/encyclopaedia-of-islam-3/adab-al-qadi-COM_0106?s.num=339&s. start=320 (accessed 24 July 2018). Powers, David S. Law, Society and Culture in the Maghrib 1300–1500 (Cambridge: Cambridge University Press, 2002). Repp, Richard C. ‘Courts of Law, Ottoman’. In Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://referenceworks.brill online.com/entries/encyclopaedia-of-islam-3/courts-of-law-ottoman-COM_23213 (accessed 24 July 2018). Serrano Ruano, Delfina. ‘Legal Practice in an Andalusı¯-Maghribı¯ Source from the Twelfth Century: The Madha¯ hib al-h ․ ukka¯ m fı¯ nawa¯ zil al-ah ․ ka¯ m’. Islamic Law and Society 7/2 (2000): 187–234. Serrano Ruano, Delfina. ‘Judicial Pluralism under the “Berber Empires” (Last Quarter of the 11th century C.E.-First Half of the 13th Century C.E.)’. Bulletin d’Études Orientales, Special issue on Le pluralisme Judiciaire dans l’Islam prémoderne sous la direction de Mathieu Tillier, 63 (2014): 243–74. Tyan, Émile. Histoire de l’organisation judiciaire en pays d’Islam (Leiden: Brill, 1960). 170

9 Ijma¯ʿ, consensus Ahmad Atif Ahmad

Without consensus among scholars or professionals in any area of expertise, very little can be achieved. Each social community also needs a few points about which all agree and no one argues. What complicates theories of consensus in the religious law is that they must develop an answer to the question of whether consensus can be reversed. That is, whether and under what conditions a community of lay followers of a given religion or of scholars of the religious laws may simply change their mind (or practice) about a matter, which they held without any, or at least no significant, disagreement. The reversibility or irreversibility of consensus is both the central question of Islamic theoretical jurisprudence’s treatment of consensus and the key to testing the value of this consensus in a modern environment. Let’s back up and demand conceptual clarity. What is consensus? In the manuals of theoretical jurisprudence, two types of consensus are identified, occasionally overlapping or converging, demanding that the reader possess a considerable measure of caution. The first is popular consensus and the second juristic or scholarly consensus. When you ‘rewind’ the clock to the first Islamic century, the distinction between the two, while it does not disappear, clearly thins out. One definition of consensus, reported in an eighth-/14th-century source unequivocally excludes popular consensus. Zarkashi’s Bahr states it is the agreement of all the qualified jurists (mujtahids) of the Prophet Muhammad’s nation … this excludes the agreement of laypeople; their agreement or disagreement. It also excludes the agreement of some [as opposed to all] scholars of the law.1 Disagreement by someone who achieved scholarly qualification to be part of the community of juristic consensus after an agreement has been held about a matter does not breach the consensus. When the subject of consensus is enlarged, as Zarkashi himself goes on in his effort to collect all views on the matter, one must question the assumption that only scholarly agreement matters. Zarkashi relates that the subject of consensus may be a matter of law (sharʿiyya¯ t), but it may also be a natural or theological doctrine (ʿaqliyya¯ t), a matter of social standards (ʿurfiyya¯ t), or language standards (lughawiyya¯ t). If these ‘conventions’ are all included in consensus, it is a subject that encompasses the agreements of the scholarly minority and the broader majority of the Muslim community.2 171

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1 Theory 1.1  Qarafi (d. 683/1285) and Razi (d. 606/1209) on consensus Suppose we travelled 200 years back in time, from our starting point of the eighth/14th century, and trusted a statement of the matter by the famed philosopher and jurist, Fakhr alDin al-Razi (d. 606/1209), which guides a seventh/13th-century commentary by the Maliki jurist Qarafi (Nafaʾis al-Usul).3 The sedimented layers of the concept are revealed via two central sets of discussions. The first set of discussions concerns the window of consensuses and whether it may be, while itself an instance of agreement and reconciliation, the outcome of heated disagreement. Definite cases of consensus, Qarafi’s reader will conclude, are bound to occur within a small window of time. The window begins with the Prophet’s death, because an agreement on ‘interpretations’ of his teaching is meaningless in his lifetime.4 The window must then be closed when ascertaining the agreement of scholars in the vast swaths of Muslim territories becomes something of an impossible task.5 Many of us simply assume that Muslims agree on basic matters, only to learn later that they even disagreed on what was included in the Qurʾan itself.6 Most genuine consensuses are, in fact, agreements among the companions of the Prophet, when the community of the believers and its active ‘intellects’ of legal and moral guidance were all contained in a small number. The agreement should not be required from the start. It could occur after disagreement, and it would be an acceptable consensus. This leads to what some may consider an unlikely conclusion: that all historical consensuses could have gone the other way. Abu Bakr argued that apostates must be fought, and he was in the minority, and his argument led to a consensus to fight the apostates, but it could have been otherwise.7 While Razi’s initial definition of consensus still attributes it to the community’s leaders or those who have the power to bind and loose (ahl al-h ․all wa-l-ʿaqd), Razi’s third enquiry shifts to the agreement of the community of the believers, which reflects, without a warning, that any value assigned to consensus in religious laws must go back to a Qurʾanic verse that draws a clear line between the Prophet and his community, on the one hand, and the remainder of the world communities, on the other. This leads to the second set of questions, which addresses what makes consensus authoritative. In a word, it is the language of the Qurʾan and the Prophet’s instructions that draw the line between ‘Muslim’ and ‘non-Muslim’ at a point of disagreeing with the views shared by the Muslim community. The Qurʾan (4:115–16) does explicitly state that ‘those who oppose the Prophet’s and follow the ways other than those of the believers will be left to their own devices and subjected to eternal punishment’ – a statement that is followed, perhaps for emphasis, with a condemnation of those who dedicate themselves to gods other than God Himself.8 In opposition to what Zarkashi told us, an important caveat is given by Juwayni (d. 478/1085) regarding the subjects where the consensus should be taken seriously: these must be matters of religion (samʿiyya) as opposed to pure rational or empirical matters. No virtual infallibility should be presumed and ascribed to the body of Muslim societies. Muslim societies will entertain prejudices and assumptions that may or may not be correct. Hence, giving credence to views common among Muslims, or even Muslim scholars, in non-­religious matters has no basis. The Muslim community, lay and scholarly, is authoritative only within the borders of its own code of moral and legal instructions, as opposed to any universal code or scientific realm. This explains Ibn Daqiq al-ʿId’s (d. 702/1302) harsh sounding statement against scholars who diverged from the beliefs of all Muslims in matters 172

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such as fidelity to the doctrine of bodily resurrection, in an apparent hint at Ibn Rushd’s famous but understudied view.9 Why don’t we take this quotation as an excuse to go back to Juwayni’s Burhan and check some of his insights in the subject?

1.2  Juwayni (d. 478/1085) Two hundred years before Qarafi’s recapitulation of the scattered discussions on juristic consensus lived Juwayni, the Persian jurist just quoted.10 He had reflected independently on many of the mind-bending questions of consensus. We have already seen his exclusion of all but one kind of issue from the realm of consensus. He essentially believed that the body of Muslim believers and their religious law scholars possess collective authority only in matters that may claim the pedigree of the religious revelation. Juwayni’s Burhan also contains a few surprises. The majority of legal theorists, for example, are reported to say that, in juristic consensus, the character of a jurist matters in deciding whether this jurist may be included or excluded from being considered as part of the authoritative body of jurists. Juwayni thinks this, while appearing to be an explicable position, need not be the case. True, a man of bad character may even not be truthful about reporting his own view (wal-fa¯ siq ghayr mus․addaq fı¯ma¯ yaqu¯l, wa¯ faq aw kha¯ laf ). But the bottom line in these matters is whether the possibility of a reasonable disagreement is found. Certainly freedom (absence of slavery) and maleness don’t matter in considering a scholar to be part of the community of consensus; slave and female jurists have been taken into account in jurists’ discourses and research. Reaching the age of majority is, by contrast, expected of the community of consensus.11 A legal theorist with little interest in the details of the law is another borderline case. Juwayni here wavers. In the end he settles on considering a scholar of deficient knowledge of the detailed law to be included only if this theorist’s objection is expressed, but when the theorist is silent, the consensus carries the requisite authority. The point, in any case, is that any reasonable argument that may weaken the consensus must be taken into account. All those who are qualified to contribute to the discussion must be taken seriously, since one is either a qualified or an unqualified jurist, and there is no third stage in between (laysa bayna man yuqallid wa-bayn man la yuqallid martaba tha¯ litha).12

1.3  Popular and scholarly consensus In these discussions one notes that the matter of scholarly, as opposed to popular, consensus seems increasingly a question of who the academy of Muslim jurists admits to its membership. ‘Does character matter? And, is theoretical knowledge sufficient?’ fit in the world of scholarly disputes. Concerns with the nature and verifiability of popular consensus (on matters such as prayers) has a different flavour. Popular consensus is not consistently of a lower rank than scholarly consensus. At least, it is not inferior in certain obvious cases. In fact, popular consensus may be more definitive of what the law is than what one may read in jurists’ books. Muslims agree, for example, that the required daily prayers amount to exactly five, not fewer and not more. If you consult Hanafi law sources, a Muslim individual is obliged to perform six daily prayers – adding an odd-numbered, usually three-unit prayer at the end of the night (the witr prayer) to the familiar five. After the effect of this surprise is over, one might ask: How is it that all Muslims got it wrong and Hanafi jurists right? If one’s stamina allows one to keep on researching, 173

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one will learn that an adult Muslim is obliged, but is not obligated, i.e. addressed by a wa¯ jib but not a fard․, to perform this sixth prayer. We are, then, back to the warm arms of popular lay beliefs, which turned out to be correct after all. The religious law only requires five daily prayers for Muslim adults. The basis for considering consensus a safe source for the law was, as we learned earlier, a few verses that warn the believers from abandoning the path set by the Prophet and the rest of the believers. The authoritativeness and significance of this textual evidence was disputed. All knew that even when the authority of consensus is established based on the Qurʾanic revelation, it will still require much explanation from ‘reason’ as to how this authority is interpreted in practice. Juwayni, not surprisingly, is certain that there is no Qurʾanic verse that could establish the authority of the community, whether what is meant is the community of scholars or all believers. Again, all knew also that unbelieving communities do agree on certain matters, and the fact of their consensus points to issues these communities take as authoritative and final.13

1.4  Consensus demystified Abu Bakr b. Furak (d. 406/1015) has famously argued that consensus can only occur when a whole generation with its qualified jurists is said to have passed away, with their agreement intact. This is the so-called inqirad․ al-ʿas․r condition. Razi offered a dissent. The scholars of each generation may educate scholars from a new generation, in which case one must wait until the field is clear of legal authorities with the same dominant view undisputed. This will never happen, he thought. If those who require the end of a generation say that one may only stipulate the death of those of the older generation, in whose time the legal question arose for the first time, one would be tailoring a definition of generation to save the requirement. Razi instead thinks that this requirement is not needed at all and opts for what is a standard to establish more, rather than less, instances of consensus, which is to say that a consensus occurring for even a moment, albeit after a disagreement, is a binding standard and a source of law.14 There is, I hope one can now see, no mystery in a consensus in what outsiders consider a sacred law. Those qualified to be members of the community of the consensus (ahl al-ijma¯ ʿ) may agree after disagreeing and hence create a consensus. If they were to be divided, holding two opinions, and then the whole group that held one of the two views disappears (in a natural disaster) or abandons the religion, the remaining view is a view that enjoys the consensus of the community and is hence binding; if the second view is simply abandoned (without the disappearance of those who held it), the same conclusion is reached.15 While these are controversial, subtle matters, this understanding of consensus is the most consistent. But what would be the point of this consensus? This question takes us back to the starting point. Consensus is a useful, rather than restrictive, quality in a legal system. It provides a few anchors for legal reasoning. For the new scholars, they may learn how to clarify the points of consensus in order to also learn where one finds areas open to Ijtiha¯ d and personal reflection. But without these reported consensuses, the new students lack anchors for juristic research and discussion. The system, at least in its Sunni side, has built mechanisms to get out of a consensus when it is truly a burden for the scholarly community. One mechanism is more or less the same as distinguishing the new cases, as is done in common law, but it has one more layer of complexity. In common law, precedent is binding. One may only reject precedent within a certain case by showing that the new case is different (distinguishable) from the precedent. 174

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In cases where an early consensus does not address a new legal scenario or case, a Muslim jurist may also distinguish the new from the old, which was the subject of consensus. But one additional layer must be added to this tool that is available to a Muslim jurist. The consensus may have been held over a view that would be said to function in the new conditions but for the fact that it would achieve the opposite purpose for which the consensus came to being. The case of consensus to fight collective apostasy by war under Abu Bakr is a good example. A new consideration of this question, looking into the purpose of the apostasy wars, which was to unify the community, could negate the need to enter into collective wars with apostates, even when a broad view of the conditions shows resemblance to the conditions of Abu Bakr’s wars, that is to say, given that applying the old consensus in the new circumstance will lead to a conclusion opposite to the one achieved by the old consensus. We will come back to the apostasy question again when we look at examples of consensus in the modern world.

1.5  Zarkashi (d. 794/1392) and the irreversibility question With calmer minds, we can now take a final look at old debates on the question of the ‘reversibility of consensus’, aiming to get a sense of the flavour of these debates. For Zarkashi, the question of the irreversibility of consensus appeared to be one question among many.16 In fact, one way of looking at the question is to see it as a false dilemma, a question of terminology. The question looked something like this: If abrogation is specific to revelation, there can be no ‘abrogation’ of consensus. Once a consensus is established, a new consensus may not reverse it. Another way of almost sidestepping the matter was to cling to the idea that ‘consensus’ is there to tell us what cannot be mistaken. If it were possible for that reversal to occur, that would indicate that one of the two instances of consensus was mistaken, which makes it a non-consensus; consensus can only be indicative of that which is true.17 Zarkashi enumerates four conditions for consensus to become ‘established’ (ma¯ yastaqir bihi al-ijma¯ʿ). These are: • •

•

•

That it is known that the agreeing generation accepted the doctrine of the consensus both in theory and practice. That it is not breached by a disagreement by a participant in the consensus. ʿAli’s reported reversal of his view (shared by all during the reign of his two predecessors, ʿUmar and ʿUthman) that concubines who bore children for their masters may not be sold ends the consensus on the matter. That the consensus generation fully dies out. Ibn ʿAbbas is reported to have reversed views to which he conceded under ʿUmar, explaining his reversal by his fear of disagreeing with ʿUmar. That a member of a subsequent generation who becomes a competent contemporary of the old generation does not dispute the consensus.

None of these conditions, as many will have assumed, escapes contest, as Zarkashi’s multiple voices attest.18 The question of the reversibility of consensus is mechanically divided into two questions. The first is whether one generation can reconsider its own consensus. This could not be taken to mean the vacillation that takes place during deliberation, such as the case of waging war against the apostates of Arabia. The second question is about reconsideration by a subsequent generation of an earlier decision. A theological approach assumes, in both cases, that if it were 175

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a consensus at all, it would not be reversed. The reason that consensus is authoritative is a religious dictum, which distinguishes consensus from ‘straying’. If this religious dictum were to be seen as true, two consensuses could not clash, because there are not two truths in one and the same matter.19 But this is also an opening to seeing that a false problem is being solved here. If two ‘ostensible’ consensuses seemed to have been reported, one could not be a genuine consensus. A consensus is reported that the testimony of a slave is allowed in court and another consensus is reported that it is not; a consensus is reported that ‘analogical reasoning’ is permissible and Ibn Hazm reports an opposite consensus. Only one of these reports can be correct.20 The outcome of these disagreements on how a consensus may establish an area of the law with forgone, secure conclusions is that there is no guarantee that a consensus may safely escape breach in normal circumstances. Once you reflect on the examples of juristic consensus, you will realize that the legal scenarios they govern are specific in their circumstance. The point of consensus, in simple language, is providing a stronger guarantee for the views that were shared either by the community of scholars or by the whole population from reconsideration. Reconsidering the ideas that previous generations are reported to have agreed on is not taken off the table. An argument from consensus, thus, does represent a higher wall to cross or a more firmly locked gate to open, compared with other arguments. The key to opening the gate would be that any new cases must be distinguished from the cases and scenarios that are reported to have acquired unanimous consent by an earlier generation.

1.6  Is consensus a Sunni affair? It is no secret that Shiʿi scholars think of consensus as Sunni business. If there is such a thing as consensus, for Shiʿis, it may be based on an unidentified, yet final and efficient, authority – that of the imam. After all, an agreement is as valuable as those who made it. In other words, the value of consensus is derived from the group that held a doctrine without disagreement. Zaydi and Jaʿfari jurists believe that the imam, the only real authority in matters of law, is part of the consensus of the righteous community, which is what lends this consensus value. Is consensus, then, a Sunni affair? Sunni law constitutes the bulk of Islamic law. This is true by size and quality. Shiʿi law retained distinctive features and original solutions to pertinent problems, which gradually made it capable of reaching areas unknown in the Sunni practice of law. One must note, however, that Shiʿi law functioned within smaller populations and could still be further divided into the Zaydi, Jaʿfari and Ismaʿili factions. It did not suffer as much from a surplus of legal views as a deficit. It hence had a different task in its pursuit of the standardization of authority. In addressing the potential of mixing authoritative and un-­ authoritative views, the Shiʿi traditions prescribed the ingenious solution of building law around the imitable authority – an individual, rather than a group of scholars. Those abreast of the law, the learned circles, had to figure out among themselves how to negotiate their own disagreement. Borders between Sunni and Shiʿi legal doctrines and views, however, are often more illusory or nominal than real. Erudite Sunni scholars unhappy with the results of Sunni consensuses found the views of Shiʿi jurists to come in handy as spoilers of consensus. In some cases, one can find at least one reported view by a scholar against the consensus, even if another view attributed to the same scholar that comports with the consensus is found. Jaʿfar, for example, is reported to have allowed bequests to be given to inheritors who are assigned standard shares of the inheritance, while the consensus is that only outsiders, such as charities, can benefit from the will, within the limit of 33.3% of the inheritance. 176

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Despite an overall sense that even eccentric Sunni views did not spoil an otherwise widely reported consensus,21 Sunni reliance on Shiʿi disagreement to argue against consensus is an interesting feature of the debates on consensus. This feature, in any case, clearly indicates that Shiʿi disagreements did matter for some Sunni jurists and was not simply seen as irrelevant. All this applies to the later centuries of Islamic law, because in its early centuries, debates in Kufa and Medina were the norm and claimed consensuses were rare. Indeed, one of the ironies of legal research on the question of consensus is that the early centuries were the time to easily ascertain the occurrence of consensus, and some cases of consensus were claimed, but it was in the late centuries that more unverifiable claims of consensus were tossed around. In any case, the early centuries are also a time where distinctions between Sunni and Shiʿi would make little sense. Medina was the birthplace of both Jaʿfari and Maliki reflections on practical matters, but no one should imagine councils of scholars debating lists of legal doctrines in the second/eighth century, sifting through which laws are agreed upon and which ones are a matter of disagreement. It remained true that consensus in Shiʿi law was of secondary importance, compared to its Sunni standing. The early Shiʿi authorities were few and limited in number. The crisis in Shiʿi law was one of deficit of law, as I said, rather than a surplus. When al-ʿAlama al-Hilli attempted to develop Shiʿi legal doctrines in the seventh/13th century, he heavily relied on Sunni sources, such as Ibn Qudama and Nawawi. More recently, Shiʿi jurisprudence seemed to walk ahead of Sunni jurisprudence in matters of government and political organization as well as family and market laws. The process of emulation may thus be reversed. This segues to the questions of consensus and modernity.

2  Modernity 2.1  One tradition encapsulating the world The challenge of modernity that faced the Islamic traditions of legal and moral reasoning is characterized, even in this one volume, differently by different authors. For the purpose of the study of juristic and popular consensus in the Muslim world, we are advised to look at it as a new requirement the old traditions had to meet: to encapsulate objections and views that are not, for a want of a better word, autochthonous to it. In other words, Muslims had to attend to arguments of a global and universal reach as they considered their own narrow-scope consensus. If this was a crisis, it hid an opportunity. The modern Islamic legal tradition sharpened some of its old tools to decide which consensuses were meant to survive the change in conditions in modern life. In the remainder of this essay, we will take up three of modernity’s questions that touch on matters either perceived to be, or having certainly been, matters of consensus in the past.

2.2  Apostates, mixed marriages and inheritance laws The subsequent three short sections (2.2.1, 2.2.2, 2.2.3) will cover the following questions: 1) Whether an individual apostate, who has been proven beyond doubt to be an apostate, must be given an opportunity to repent and then be executed – which is a reported view that enjoyed the consensus of jurists. 177

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2) Whether a non-Muslim man’s marriage to a Muslim woman may be valid, albeit temporarily. 3) Whether a rearrangement of old inheritance laws to fit the new structures of modern Muslim families is acceptable. While consensus is cited as the foundation for executing individual apostates and the immediate repudiation of any marriage between a Muslim woman and a non-Muslim man, and is similarly seen as the basis for the core of inheritance laws based on determined fractional shares, modern scholars were not absolutely sure a consensus was in fact operative in all these cases. They had to consider each of these questions separately, clarifying in the process a few elements: 1) A clear statement of each question and its answer, attending to all conditions and qualifications. 2) The nature of the reported consensus, its sources, and whether both the doctrine of consensus and its foundation was taken for granted.

2.2.1  Wars and political crimes Fiqh manuals repeat a version of the following statement: That the execution of apostates is based on consensus. The purported consensus, however, is a consensus among the early companions that the apostates of Arabia must be fought. We have already mentioned this when we considered how this consensus was generated; it was a matter of disagreement among the companions, and a consensus to follow Abu Bakr’s lead emerged from the deliberation. But there is no question that the object of consensus is ‘collective punishment’ of apostates by waging war on them. In actual practice, and this is another matter, Abu Bakr did not give the same instruction to wage war discriminately; he asked the leaders of each army division to camp at a distance and test whether the community that has been reported to revolt against the Muslim community did in fact conduct their lives as Muslims, as attested by such activities as the call to prayer. In any case, there is no consensus that individual apostates may be executed. Yet, if war constitutes what American lawyers would call ‘due process’, by which an individual (fighter) may be deprived of life, the step may be taken to consider the execution of an individual apostate a sub-set case within the same consensus. Juristic manuals do support this understanding. In books on ‘ridda’, the subject is clearly the execution (rather than the waging of war) of individual apostates, with the caveat that an invitation to ‘repent and retract’ be issued to this apostate before execution. Sufyan al-Thawri (d. 161/778) is said to have demanded that this invitation be extended without time limit, apparently contradicting the punishment of execution. Again, moving forward, the question remained whether a consensus to execute individual apostates that derives from the initial consensus to wage wars against the early apostates amounts to anything more than a shell-consensus, so to speak, since individual apostates must come up in court cases that require laborious evidentiary and other judicial and juristic tests. Cases of individual or small group apostasy also confirm the suspicion that once this becomes a judicial matter, each judge’s discretion moves to the centre of the legal discussion. There were even cases where disagreement arose among first-rate authorities within the same

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school of law regarding which acts or statements qualified as instances of apostasy. The Shafiʿi authority Taj al-Din al-Subki’s (d. 771/1369) famous ruling to execute individuals who slandered the first two companions of the Prophet (al-shaykhan) caused a stir, because it apparently relied on stretching a principle that emanated from Maliki legal reasoning. Ibn Hajar al-­Haytami (d. 955/1566)22 pointed out the discrepancy, raising doubt that a Shafiʿi judge would normally be allowed to rule in the case in a similar manner. More than three centuries later, Ibn ʿAbidin (d. 1252/1836) refused the very idea that one may execute in apostasy cases should there be any doubt in the matter.23 Ibn ʿAbidin sits on the cusp of modern life, as a century later, the fall of the Ottoman State and formation of national states gradually made an execution for treason more intelligible than an execution for apostasy. This is the context in which the consensus to execute individual apostates was subjected to further scrutiny. The fact that ‘apostasy’ must be seen as a religious and a political crime muddied the water further. As things stand today, while claims that apostates may be executed based on religious dictum or fatwa exist, the support of political power is an essential element to make a religious ruling on the matter worthy of reflection. When individuals take it upon themselves to implement an optional or non-binding religious ruling (fatwa) of apostasy, these appear to be nothing but cases of assassination, unpacked by the mixed religious and political authority of the old consensus to fight apostates.

2.2.2  Modern Muslim women and their marriages Fiqh manuals also repeat a version of the statement that the prohibition of a non-Muslim man from marrying a Muslim woman is based on consensus. Not only that, in cases where two non-Muslims are married and the wife subsequently converts to Islam, her marriage to her non-Muslim husband automatically dissolves.24 The tradition is a bit more complex here, compared to the previous question. The Prophet’s own daughter, Zaynab (d. 8/629), was married to a maternal cousin of hers named Abu al-ʿAs b. al-Rabiʿ (d. 12/633) even before the Prophet emigrated from his hometown of Mecca to Medina. This emigration was the line of separation between the nascent Muslim community and the broader pagan community. When Zaynab left with her father, the Prophet Muhammad, she was in her early twenties. Her marriage to Abu al-ʿAs, whose character the Prophet had opportunities to praise, did not dissolve automatically. In fact, their marriage is the reason for visits by Abu al-ʿAs to the Muslim community during moments of conflict between pagans and Muslims, which led Hanafi jurists later to develop the ‘theory of aman’ or permission for temporary residence by non-Muslims among Muslims. Abu al-ʿAs did ultimately convert to Islam and spent some time with his wife as two members of the same Muslim community. Be that as it may, the consensus is still reported to prohibit a) the initiation of a marriage involving a Muslim female and a non-Muslim male and b) the continuity of such marriage if it were to result from the conversion of a female to Islam without her husband’s conversion. The consensus is dated to the aftermath of the Zaynab-Abu al-ʿAs arrangement, which preempts any argument against it from the Zaynab story. Ibn Hajar al-Asqalani’s long commentary on Bukhari is one pre-modern source that anticipates the modern controversy.25 Ibn Hajar tells us that Zaynab’s marriage to Abu al-ʿAs spanned six years, during which the Prophet Muhammad did not repudiate her marriage to her husband. Muslim jurists, Ibn Hajar repeats, agree that a Muslim woman cannot initiate a

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marriage with a non-Muslim man, and that, should a female non-Muslim convert to Islam, while her husband remains a pagan, the marriage dissolves. Ibn Hajar’s commentary takes the sayings and actions of the Prophet (Sunnah) as the foundation of the laws, which indicate in this case that the jurists’ agreement may not be in line with the Prophet’s practice, unless, as they say, this action by the Prophet was abrogated (cancelled and made ineffective) by a subsequent law. For jurists who follow the standard tradition of legal reasoning, this abrogation is a matter of consensus. The Prophet’s practice in Zaynab’s case may have been a necessity in the beginning of the community’s life, in other words, and was later ‘abrogated’ (i.e. cancelled) by the Prophet himself when he denied any new marriages between a Muslim female and a non-Muslim male. Ibn Hajar does not always provide his own final answer to the questions he brings up and is, in fact, content to provide a full account of the disagreement in relation to the Prophet’s tradition. Modern reformers will employ new kinds of reasoning from Muhammad’s tradition that reach different conclusions about what the law should be in modern times and in places where Muslims live among a non-Muslim majority.

2.2.3  Inheritance today While consensus in inheritance laws is unavailable in many crucial matters, such as distributing the inheritance of a man who left enate (maternal only), cognate (maternal and paternal) and agnate (paternal only) brothers, there is an overall agreement, for example, that siblings, males and females, distribute their shares at a ratio of 2:1 if they inherit as an agnatic familial group (‘as․aba). The 2:1 ratio is certainly not standard, but it obtains in some cases. This doctrine came under significant scrutiny in a modern context where not only did the roles of males and females in society change considerably, but the argument that the male endures a higher financial responsibility itself fell flat. On this question, debates rage. Most modern states have modified the old religious laws of inheritance to reflect the Muslim communities they serve. In places such as Indonesia, old instances of folk-laws (ʿa¯ dat-laws) are already a modification of the simple 2:1 ratio.26 In many Muslim countries, modern laws simply changed the inheritance schemes sufficiently to leave the old arrangement only a narrow window of application.

3 Conclusion 3.1  The legacy of consensus ʿAbd al-Ghani ʿAbd al-Khaliq (1908–1983) argued that consensus is the only foundation with which one can hold any legal doctrine without doubt. The language of the Qurʾan and the Prophet’s Sunnah are matters of disagreement, at least if one is undeterred by the rules of traditional interpretation. Of course, within each madhhab or school of law, the options are limited by the school’s standards of legal reasoning. Once these restrictions are removed, no doctrine is immune to revision. ʿAbd al-Khaliq’s is certainly a powerful modern reading of the institution of consensus. It is clearly a position of its time. More importantly, the increasing vulnerability of consensus to revision and reversal, for some modern Muslims, is a positive development; many decry it. In any case, the Sunni tradition of theoretical jurisprudence provides limited solace. If recognizable authorities in the law agree, as long as they distinguish their questions from those that have been matters of consensus earlier, this may serve as a foundation for new, stable laws. 180

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3.2  The utility of consensus Consensus remains a significant tool to measure the extent of a community’s tolerance of disagreement. Shiʿi dismissal of consensus notwithstanding, consensus served, in the ʿAbd alGhani ʿAbd al-Khaliq interpretation just indicated, as a signifier of ‘secure knowledge’. ʿAbd al-Khaliq argued that in no way could one be certain that a man may not take nine wives if it were not for the consensus that a verse that indicated that, at least in the aftermath of war, a man may take ‘two, three, four wives’ – given that the verse remained silent as to whether these were indicative of four as the absolute upper limit or indicative of an aggregate of the three numbers (2 + 3 + 4 = 9). This view is one we must take with a grain of salt, as our discussion has amply showed, but it has its successes, just as it has its limits.

3.3  The consensus doctrine in theoretical jurisprudence The value of this study is to show how a legal system (or a group of interlocking legal systems, such as medieval Islamic law and modern Middle Eastern laws) fills its own gaps and where its future may be going. It is true that Islamic law did not always look or function like a legal system with a community of scholars bound by agreements that can be established, tested and employed to create a foundation for consistency. And, while we have a good number of cases where even major Muslim muftis and judges were ‘corrected’ by contemporaries and subsequent generations of scholars for ruling against a juristic consensus, there were no judicial institutions that could test whether consensuses are observed. There was, after all, no supreme court for Muslim communities or even for each madhhab to function as arbiter.

Notes 1 Muhammad b. Bahadur al- Zarkashi, Al-Bahr al-Muhit fi Usul al-Fiqh, ed. A. Abu Ghudda, vol. 4 (Kuwait: Ministry of Religious Affairs, 1992), 436. 2 Ibid. 3 Ahmad b. Idris al- Qarafi and Muhammad b. Zakaryya al- Razi, Nafaʿis al-Usul Sharh al-Mahsul, ed. ʿAbd al-Mawjud and Muwwad (Riyadh: Baz Pub., 1995). 4 Qarafi, Nafaʾis, vol. 6, 2561. 5 Qarafi, Nafaʾis, vol. 6, 2544–6. 6 Qarafi, Nafaʾis, vol. 6, 2549. 7 Qarafi, Nafaʾis, vol. 6, 2552–3. 8 Qurʾan: 4:115–16. 9 Zarkashi, Al-Bahr, vol. 4, 527–8. 10 Abu al-Maʿali ʿAbd al-Malik b. Yusuf al-Juwayni, Al-Burhan fi Usul al-Fiqh, ed. ʿAbd al-ʿAzim alDib (Doha, Qatar: Matabiʿ al-Daʿwa al-Haditha, 1399/1980). 11 Juwayni, Al-Burhan, vol. 1, 688–9; art. 632–3. 12 Juwayni, Al-Burhan, vol. 1, 685–8; art. 634–5. 13 Juwayni, Al- Burhan, vol. 1, 672–3; art. 620–1. 14 Qarafi, Nafaʾis, vol. 6, 2677. 15 Qarafi, Nafaʾis, vol. 6, 2672–6. 16 Zarkashi, Al-Bahr. 17 Zarkashi, Al-Bahr, vol. 4, 128–131. 18 Zarkashi, Al-Bahr, vol. 4, 519–20. 19 Zarkashi, Al-Bahr, vol. 4, 528–30. 20 Zarkashi, Al-Bahr, vol. 4, 528–30. 21 Even the disagreement of Zahiris would not definitely be a spoiler. See Zarkashi, Al-Bahr, vol. 4, 471–4. Similar discussions are found about consensus despite the disagreement of the few (one or two). 22 Ibn Hajar al-Haytami, Al-Sawaʿiq al-Muhriqa ʿala Ahl al-Rafd wa-l-Dalal wa-l-Zandaqa (Beirut: ­Muʾssasat al-Risala, 1997). 181

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23 Ibn ʿAbidin, Majmuʿat Rasaʾil Ibn ʿAbidin, vol. 1 (Cairo: M. H. Kutubi, 1325–1907), 366. 24 See for example: Ibn Qudama, Al-Mughni, ed. A. al-Hilw, vol. 10 (Riyadh: Dar ʿAlam al-Kutub, 1997), 10–11. 25 Ibn Hajar al-ʿAsqalani (d. 852/1449) (ed. M. al-Khatib), Fath al-Bari Sharh Sahih al-Bukhari (Cairo: al-Matba’a al-Salafiyya, 1980), vol. 9, 420–4. 26 Daniel S. Lev, ‘The Supreme Court and Adat Inheritance Law in Indonesia’, The American Journal of Comparative Law 11(2) (Spring 1962): 205–24.

Selected bibliography and further reading Ali, Abdullah bin Hamid. ‘Scholarly Consensus: Ijmaʿ: Between Use and Misuse’. Journal of Islamic Law and Culture 12(2) (2010). Ibn Qudama. Al-Mughni. Ed. A. al-Hilw (Riyadh: Dar ʿAlam al-Kutub, 1997). Juwayni, Abu al-Maʿali ʿAbd al-Malik b. Yusuf al-. Al-Burhan fi Usul al-Fiqh. Ed. ʿAbd al-ʿAzim al-Dib (Doha, Qatar: Matabiʿ al-Daʿwa al-Haditha, 1399/1980). Qarafi, Ahmad b. Idris al- and Muhammad b. Zakaryya al- Razi. Nafaʾis al-Usul Sharh al-Mahsul. Ed. ʿAbd al-Mawjud and Muwwad (Riyadh: Baz Pub., 1995). Zarkashi, Muhammad b. Bahadur al-. Al-Bahr al-Muhit fi Usul al-Fiqh (Kuwait: Ministry of Religious Affairs, 1992). Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Resources in Arabic and Islamic Studies (Atlanta, GA: Lockwood Press, 2013).

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10 Superior argument Ahmad Atif Ahmad

The inquiry on al-taʿa¯ dul wa-l-tarjı¯․h or al-taʿa¯ rud․ wa-l-tarjı¯․h in Islamic theoretical jurisprudence addresses, in general terms, what jurists should do when they encounter in their legal research what appear to be conflicting arguments of equal strength. Juxtaposed with this, both within the same school of law (madhhab) and for an independent jurist (mujtahid), one finds in Islamic juristic practice many scenarios where a jurist faces what appear to be equal and conflicting arguments or ‘reasons’ for deciding a case or a doctrinal question one way or another. This is a problem both Sunni and Shiʿi law systems take seriously. In modern national laws, judges also apply rules to decide which indicators of the law trump others. This is what is usually meant by the term ‘the conflict of laws’ and in some cases ‘jurisdiction’ enquiries. This is relevant to applications of Islamic law in Muslim nations today, and in some interesting cases, the relevance of Islamic law to a modern case under consideration is decided via ‘conflict of laws’ mechanisms. Finally, a conflict of arguments can be adjudged within the court hierarchy, where a higher court applies a standard by which to cancel the argument of a lower court by means of a superior argument. This article attempts to cover these points in a broad way.

1  A very, very brief history 1.1  Consider, first, a medieval Sunni summary of the matter This is how Baydawi (d. 658/1260) introduces the subject.1 Could two arguments be totally equal in strength? Karkhi (d. 410/1020) says no and others think it possible. If it is possible, then the jurist simply picks one – so said Baqillani (d. 402/1013) and the two Jubbaʾis, Abu ʿAli (d. 303/916) and Abu Hashim (d. 321/933) – or both arguments cancel each other out. On the first view, when a judge applies one of the competing arguments in one of his rulings, he could not use the other position and arguments in a new but identical case. In other words, he cannot swerve back and forth between the two equal arguments. The Prophet is reported to have instructed Abu Bakr al-Siddiq (d. 13/634) to not rule differently in what is in fact one matter. 183

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The question at the beginning, then, is whether such a condition is possible. If you believe that jurists are searching for one law, God’s law, would not there have to be a successful set of arguments by which to arrive at this law? Isnawi (d. 772/1370) takes it from here, stating that his discussion of it falls under four queries, three on equal but conflicting arguments and one on determining what superior argument is. The three queries on equal argument address the presence of conflicting sources of the law that could not be eliminated or sidestepped, i.e. to the Qurʾan and juristic consensus. The Qurʾanic verses in ostensible conflict can only be a matter of a legist’s research that finds an instance of ‘particular’ language in one verse and ‘general’ language in another, or an instance of abrogation, where a subsequent verse cancels an earlier one. Juristic consensuses, similarly, do not genuinely clash. Both the Prophet Muhammad’s reports and reasoning based on analogy, by contrast, are subject to determining which is superior and which inferior. These are the proper subject of superior argument. Before delving into this discussion, let us clarify the question at hand. We have noted that Baydawi’s text introduces the matter of conflicting but equal arguments as itself a matter of disagreement. He reports that some legal theorists thought it happens and others did not. What he neglected to mention, according to Isnawi, is that this discussion addresses whether this conflict is possible when we consider the full scope of an argument. In other words, what jurists disagreed on is whether a group of first-rate scholars could exhaust a given enquiry, assembling all reasonable and acceptable arguments that pertain to it, and ultimately conclude that these arguments are both equal in strength and irreconcilable in indication. Baydawi could have also told us something about this condition of equality-cum-conflict of argument within and inside the same intellect – the mind of one jurist. Isnawi states that, were he to do that, he would have told us that there was no disagreement that this condition was possible; in fact, it may simply be too obvious and mundane. What is a bit more inscrutable, given its theological and logical implications, is the condition of ultimate impasse, where all the minds think equal and conflicting arguments are all there is. Is it really possible for jurists to labour all the way to find that there are conflicting arguments of equal power? Some legal theorists simply refused to think that this could take place. Abu al-Hasan al-Karkhi and Ahmad b. Hanbal, according to Ibn al-Hajib’s reporting, were among this group. They argued that, were this to happen, it would lead to accepting ‘contradiction’ (in Arabic, ijtima¯ʾ al-mutana¯ qid․ayn). Were jurists to make an unreasoned pick, ignoring one argument and following the other, this would be an acknowledgement of the presence of mere nonsense and chance, a condition completely devoid of purpose. It would be an acknowledgement, in effect, of the presence of disorder in God’s presumably orderly world. Were jurists to be given the liberty to choose one side that is to their liking, this would be the rule of desire. Were the questioner to be given the option of choosing whichever conclusion they prefer, this would lead to an equal if not a worse absurdity – the categorical preference of permissibility and ease over responsibility and commitment. There must simply be a superior argument, according to this camp. Isnawi then inserts a note of clarification, taking away what appears to be the requirement of the fulfillment of an insurmountable task. There is no denial that arguments leading to certainty cannot conflict; nor can an argument leading to likelihood or high Consequences of accepting that arguments may be both equal and conflicting Contradiction

Figure 10.1. 184

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Disorderly universe

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confidence truly conflict with one leading to certainty. What is possible is a conflict between two arguments that yield a position one may hold with high confidence, rather than certainty. Contrasting with the view attributed to Karkhi, the majority of legal theorists say these equal-cum-conflicting arguments do exist. They appear to see things differently and in a way more simply and realistically. This is reported by Razi (d. 606/1209), Amidi (d. 631/1233) and Ibn al-Hajib (d. 646/1248). It is not difficult to imagine, so goes the argument, that two upright reporters of what the Prophet said or did would diverge, one reporting the presence of an event or statement and the other reporting its absence. This group of theorists then attacked the view of those who rejected equality and conflict in arguments. They said the logical division the rejecters consider is missing an important possibility, the very simple possibility that the conflicting arguments be reconcilable. That is to say, that the conflicting arguments be considered as elements or components of one and the same argument. The jurist must, at the end of the day, apply his reasoning to this condition, preferring one element of the argument to another or simply declining to rule on the matter. In any case, one may acknowledge all this and refuse to say that the conflicting elements of an argument would all be abandoned, when they seem to lead the jurist in different directions. What remains is a note on the provenance of this idea that a disorderly universe must be posited, if conflicting indicators of seemingly equal power present themselves to the mind. Isnawi states that this idea originates from the Muʿtazili tah․sı¯n/taqbı¯․h doctrine. This doctrine assumes that the human mind, being able to detect the qualities that make an act ‘good’ or ‘bad’, should not find itself in an impasse, where conflicting indications of what is good or bad are available. There simply must be a way to decide the goodness and badness of good and bad; otherwise, this tool – the human mind – is not what we assumed it was. Isnawi gives this quick identification of the argument’s source without a comment. His reader will take Isnawi’s silence as a kind of sneering, given that by now, the reader will have encountered multiple instances of attacking Muʿtazili doctrines by Isnawi, including instances of attack on this very skeletal doctrine. In Isnawi’s reporting, Amidi (followed by others, such as Urmawi (d. 682/1283)) explained that, in some cases, one act may bear two different rulings. An owner of 200 camels may, for example, pay his zakat/alms by delivering four camels that are three years of age or five camels that are two years of age. The rulings are different, but they apply to two different acts in the natural world and do not entail an unacceptable conclusion. As for two conflicting rulings applying to the same act, this is possible but not acceptable in the eyes of the law. In effect, a legal convention saves the practitioner of the law from the wild world of unhinged logical possibilities. In Amidi’s Ihkam, the matter is presented as a matter of tarjı¯․h or deciding what is superior argument as an outcome of taʿa¯ rud․ or ‘conflict’ – plain and simple. Amidi stipulates that tarjı¯․h is needed when two arguments satisfy two conditions. They each must be in conflict with the other (the taʿa¯ rud․ condition) and be capable of indicating a conclusion (salah ․iyya). This excludes arguments that could not lead to a conclusion, but it does not set up the matter as an epistemological crisis per se. Conflicting indicators exist, and one may be evaluated more favourably over the other, but one need not acknowledge that a state of equality between the two arguments, however apparent or ostensible, is there. In other words, tarjı¯․h’s prerequisite is simply taʿa¯ rud․ (presuming ․sala¯․hiyya) not the potentially problematic taʿa¯ dul.2 Staying with laws and legal conventions and setting logic aside, we now consider practical solutions to this condition when it seems to arise. The practical solutions are the ones we 185

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learned earlier: Some say that a pure act of choice of argument by the jurist will do. This is the view of Abu Bakr al-Baqillani (d. 403/1013) and al-Jubbaʾis – uncle and nephew, whom Baydawi mentioned. Others say conflicting arguments cancel out each other, and the human act under consideration becomes permissible or neutral – the principal condition of human activities before the law. If what is under consideration is simply a private matter in the jurist’s life, he gets to choose. If it concerns others, he gives the questioners all options. If it is a judicial matter, he must make a decision, since he cannot leave it up to conflicting adversaries. Once he takes a decision in one case, all similar cases must be decided similarly, because of the Prophet’s instruction of Abu Bakr, which Baydawi cited.

1.2  The conflict of laws in one and the same school You will have noticed in the above discussion that there were two ways to look at God’s cosmic plan. The Muʿtazili view, as described here by an Ashʿari author, is that the human mind must be able to assume a consistency in God’s plan for the world and for humans in it and must be able to discern qualities in human acts that allow the jurist to judge these acts as good or bad. The Ashʿaris have relinquished this task and acknowledged that things sometimes do not add up, and this is part of why the divine ways are above human comprehension.3 While this disagreement has some consequences, it is not always consequential. In most juristic debates, the scholars will argue practical solutions, eliminating arguments and supporting others. Legal knowledge is distinct from natural knowledge by its standing on manufactured authority. If I am the lawmaker, I can say this is the law, and it does not have to be consistent the way knowledge of nature is imagined or presumed to be. Yet a premodern jurist, unlike a lawmaker of absolute authority, must explain his conclusions. The only meaningful crisis of equal-conflicting legal imperatives is transferred to the inside of the jurist’s mind (if one jurist is building a system) or to the clique of legal elites inside a legal system (as in modern national laws, for example). When one and the same person finds conflicting indicators or considerations leading him in different directions, he may not be able to answer the question at all. But he may also answer it twice. This is what we colloquially refer to as being ‘of two minds’ about something. One of the medieval jurists whose ability to apparently produce two different legal systems in one lifetime was the founder of the school that our Isnawi followed – the Shafiʿi school of law. Somewhat counter-intuitively, Shafiʿi scholars argued that their school founder’s two-doctrine school system was an indication of the strength of his scholarly mind and religious prudence. In practice, a two-doctrine school system required more work from the school followers, since they had to develop some tools to decide which doctrine to pick when these are in conflict. One tool jurists use is to measure the conflicting views against other views by the same scholar, in order to decide which one of the conflicting views is more consistent with other views by the same jurist. As a broad principle, these scholars said, the doctrine Shafiʿi held when he lived in Egypt, toward the end of his life, is deemed superior to his Iraq-time views. In a few cases, approximately 19 (depending on how a jurist counts juristic questions, since legal questions are interrelated), the old (Iraq) doctrine, when reported with certainty, is considered superior. What complicates the matter for Shafiʿi jurists is that an additional standard, which is ‘conformity with incontrovertible textual evidence (hadith),’ is used to decide which of the school founder’s views carries the day. It was an instruction by the school founder himself, Shafiʿi that is, to his followers that led to employing this standard. 186

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1.3  Now: consider a disagreement on the Friday prayers in Jaʿfari law In the absence of the imam, the legitimate leader of the community, Jaʿfari jurists wonder how duties such as the Friday prayer may be fulfilled. A consensus is reported that the prayer is obligatory, based on an apparent instruction in the Qurʾan,4 requiring good reasons for a claim to an exception to be made.5 An opposed consensus stipulates, among other requirements, that the permission of an upright imam is required, and draws partial support from the simple fact that people tend to gather for bad reasons more frequently than they gather for good.6 The reason we end up with ostensibly equal and conflicting arguments, then, is that there is no question that the presence of the imam or his deputy ( jurist) is a condition in the prayer and there is also no question that the prayer is obligatory. The continual absence of the imam and his deputy does hence create something of a paradoxical situation. But, of course, there are solutions to paradoxes, which will only appear to be illusory after the solution. Arguing the first position, that the prayer remains an obligation, the Second Martyr, Zayn al-Din al-Amili (d. 966/1558) first acknowledges the powerful disagreement on the matter.7 Yet, he is adamant that he has the tools to resolve it. The side that argues that a ‘call to the prayer’ (adha¯ n) is valid only when performed by the rightful authorities does have a point. He comes back, however, with a rebuttal: Once a command establishes an obligation, my conclusion is established. This is based on the consensus of all Muslims, our fellow scholars [Shiʿis] and the bulk of Muslims [Sunnis] included. The obligation is not, in itself, contingent on the adha¯n or proper call to prayer. It is simply made to appear conditional in order that the call be taken seriously – such that some scholars stated that the adha¯n itself is a separate obligation. The same is true regarding a requirement of ‘moving toward a place to perform the prayer, since it is a requirement because it leads to a requirement. But if moving to a place to perform the prayer is a requirement, the prayer itself is actually the ultimate requirement, since the act of moving itself cannot be seen as good (h ․asan) without requiring it.8 Unlike their Sunni counterparts, Jaʿfari scholars could adjudicate disagreement, eliminate it in effect, and show that either the equality or the conflict of the arguments is illusory. Many of their ground rules rhyme with, when they are not mirror image of, those given by Sunni legal theorists. In an introduction to his commentary on al-ʿAllama al-Hilli’s Summary of the Law (Mukhtasar al-Sharaʾiʿ), Jamal al-Din Miqdad al-Suyuri (d. 826/1423) provides a statement of method on evaluating conflicting legal dicta.9 He first states that sectarian, often desire-bound, opinions have diverged, the correct path of the People of the House (the scholars of authority in Jaʿfari law) being the one chosen by the author. While already cutting the number of choices for a jurist, this fundamental turn toward specific authorities does not eliminate all disagreement. Al-Suyuri moves on to enumerate the authorities of the school (madhhab), from Muhammad al-Baqir to his son, the school’s eponym, Jaʿfar al-Sadiq (d. 148/765) to al-Kazim (Musa), the fifth, sixth and seventh of the 12 leaders of the community. He warns that reporting from these authorities is not of the same quality. In some cases, the reporting produces knowledge that is close to certain, having acquired the status of ‘abundantly reported’ (mutawa¯ tir). In other cases, all you have to go by is a single reporter or a handful of them. The latter, in turn, can be of different (totalling six) types. The author essentially offers two scales, one describing the quality of the reporters, descending from the highest (sah ․ih ․), all the way to a report with deservedly blameworthy reporters (daʿı¯f ). The other scale attends to the connectability of the chain of reporters from known and connected (musnad) to a report whose authorities are not even fully identified (mursal).10 187

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Suyuri then addresses the different classes of legal reports and views. Pointers to favourable evaluation of one report or view over the other are indicated by language such as ‘al-ashhar’ (ie. the more common report), ‘al-azhar’ (the more accepted in fatwa), ‘al-ashbah’ (more consistent with other school doctrines), ‘al-ah․wat․’ (the safer choice to satisfy or remove personal responsibility) ‘al-akthar’ (more common among jurists), ‘al-ansab’ (a synonym for al-ashbah) and ‘al-awla’ (decidedly superior view, based on a certain a rationale). He then attends to the possibility of a gridlock or the presence of conflicting and equal arguments by introducing the term ‘taraddud’.11 He finally makes it one of the tasks of his commentary to spell out juristic disagreements and the manner in which one report or view may be seen as superior over the other (wajh al-azhariyya wa-l-ashbahiyya wa-l-as․lah․iyya) and the reasons jurists may encounter cases where deciding who is right remains unattainable (manat․iq al-taraddud).12

1.4  Come modernity One can invite new types of heated disagreement when one considers, in a modern environment, the question of whether conflicting arguments can be of equal strength and whether reconciling existing arguments (or data) is necessary all the time. Deciding these matters will depend on what phenomenon one is considering. There will be no interesting disagreement about the certainty bequeathed by a universal, sensory experience, such as deciding the existence of a flower based on observing it. But there is scientific knowledge that the image of the sun we possess is a dated, 7-minute-old image. Sensory experience tells us something wrong here, and we must then concede that certainty did not result from the senses. There must be those who believe that so-called conflict of arguments leading to certainty ought to be eliminated from serious academic research. On this view, there is no such a thing as arguments leading to certainty, which in turn means that a conflict of two arguments leading to certainty is an imaginary problem. But I will take it that certainty remains an issue, and moderns (philosophers and laymen) maintain the desire to reconcile arguments and keep the faith that conflicting arguments can only lead to a temporary wonder (or crisis) that must end after further research is conducted. The reason these ostensibly irrelevant scientific and logical/epistemological discussions come to mind here is that questions of what establishes human knowledge were part of the question of how humans obtain legal knowledge, which medieval jurists are asking. Remember that these jurists are looking for a law that regulates human action, and this law, in its essential design, is made by a magnificent, omniscient, omnipotent being and must reveal itself to these human minds as they labour to extract it. Even as these jurists made distinctions between and among types of human knowledge, including human knowledge that affects the law, they could not imagine a whimsical universe, or a whimsical God, and a need for juristic sleights of hand to make the world consistent.

2 The medieval abrogation and the modern temporal conflict of laws One of the three options to reconcile conflicting arguments is to assign the conflicting laws they produce to different times or temporal frameworks. This applies particularly in the area of texts. The assumption is that a subsequent text cancels out an earlier text. The Qurʾanic texts themselves bear the possibility of abrogation, but abrogation is applicable in Sunnah texts more frequently and abundantly. This is one area where medieval Islamic law’s theorization of superior argument finds a near exact equivalent in modern laws and may thus serve as a segue to modern applications 188

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of the idea of superior argument. The essence of abrogation, as we said, is that texts of later temporal provenance cancel out texts of earlier provenance. Whether it is the Prophet’s law or a modern legislative body’s laws, the idea is the same. In all Sunni schools, temporary marriage was allowed. Sunnis believe that this permission was abrogated. Jaʿfari jurists do not agree with this view. In modern law, temporal jurisdiction of legislation may be debated. Article 917 of the 1949 Egyptian Civil Code states that, were a person to transfer his/her property to one of his/her inheritors but keep physical control of the property and draw benefits from it for the remainder of his/her life, the property transfer is presumed to fall under the laws of the will – as long as no evidence militates against this presumption.13 One clash of legal imperatives relevant to article 917 concerns its retroactive application. It is not in disagreement that the law of gifts was extracted from personal status laws and made a normal part of civil law proper.14 Conflicting legal imperatives, however, persisted. Does article 917 retroactively apply to inheritance that occurred before 15 October 1949, the date the code became enforceable? This hinges on whether the article establishes a substantive law or a rule of circumstantial evidentiary presumption. If the former, it does not apply retroactively at all. If the latter, it tells the judge that when ambiguity befalls a certain property that is part of an inheritance, where the property was given in sale or as a gift to one of the inheritors but not delivered before the death of its owner, the judge must take the incomplete delivery as a presumption that the property was intended by the deceased to be part of the inheritance. Its retroactive application remained a matter of juristic disagreement.15

3  Zooming in on the modern 3.1  Conflicting legal imperatives in modern Islamic law In his Remedies for Breach of Contract in Islamic and Iranian Law,16 S. H. Amin points to an argument by Shaykh Murteza Ansari (1781–1864) on the conditions that allow rescission of a contract. One condition is when the fulfilment of the contract is so much of an undue burden that it creates a mandate for ‘rescission’. In this case, two conflicting considerations of equal power, the initial commitment created by the contract and the consideration of avoiding undue burden, clashed. As a result, the jurists decided to consider them to be ‘null and void’ – appealing, that is, to the idea of conflicting and equal considerations cancelling out each other. There is nothing particularly Iranian or Jaʿfari about the idea of considering ‘undue burden’ grounds for revoking a commitment or rescinding a contractual obligation. Let us give an example from medieval Islamic law and one from modern Egyptian law to make this case. In medieval Sunni law, iqala (or rescinding contractual commitments) was recommended to party A in a contract in which party B has what we call buyer’s remorse. Medieval Sunni jurists have also considered the extent to which iqala (or rescinding contractual commitments) may involve unacceptable modifications to the initial contract. For example, a standard permissible loan or sale may be modified into a usurious transaction, once a rescission is conducted improperly.17 Article 147/2 in Egypt’s Civil Code states that, should exceptional, unforeseeable conditions of a general character arise, and should their rise lead to a condition where the implementation of a contractual obligation be, 189

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while not impossible, so burdensome for the party carrying a debt, leading to an inevitably and unusually large loss, the judge, taking the circumstances of the case and the interests of both parties in the case into account, may resize or restate the obligation to a reasonable threshold … and all disagreements against this estimate become null and void.18 Now we go back to modern Iran. Modern Iranian jurists took the crisis of conflicting legal imperatives and turned the crisis into an opportunity. They applied the conflict of legal imperatives in a creative manner to solve the problem of the prohibition of usury, which they inherited from medieval Islamic law, which seem to be un-implementable in modern financial contexts. Here we witness a broad application of the idea that conflicting considerations cancel one another out. The result is a restatement of the legal obligations of those who are parties to a contract leading to a financial obligation. Rescission of a contract and a contractual obligation is caused by the presence of ‘undue burden’, effectively overpowering the initial contractual commitment. Beyond this rescission, a modern Iranian lawyer, jurist and judge all aim at a fairer or more just formula for contracts involving monetary obligations that are affected by money’s constant loss of value. Modern Iranian lawyers have tried to understand why dealing in usury appeared to be so unfair in medieval markets, while prohibiting usury in modern financial markets is what appears to be unfair. The point here is the conflict between two considerations, which also appear to be of equal power. The first consideration is that, in a medieval loan or inadvertent debt emanating from medieval market dealings, the lender is guaranteed a profit, while the borrower is not. In modern market dealings, money simply loses value over time. Unless it is invested, its value decreases. Keeping the value of a debt at the same level as its initial amount (at the time of its transfer from lender to borrower) is, in effect, committing a degree of injustice toward the lender. Modern Iranian lawyers thought that the discretion given to a judge to implement ‘judicial remedies’ to correct an imbalance in a contract allows for a normalization of reasonable interest on loans. They thus state that a contract establishing an unfair return of the same monetary value creates a legal imperative in competition with the legal imperative of avoiding unjust commitments and undue burdens in contractual obligations.

3.2  Superior argument in modern Egyptian civil law The father of modern civil law in Egypt, ʿAbd al-Razzaq al-Sanhuri (1895–1971), famously enumerated four sources of modern (civil) Egyptian law, in this specific order: 1) legislation; 2) custom and tradition; 3) the Islamic Shariʿah; and 4) natural law and the principles of equity. This is according to the language of article 1/2 (article one, paragraph two) in Egypt’s 1949 civil code. Let us step back and explain the framework in which we are operating here. In modern Egyptian jurisprudence, legislation by the people’s representative (The People’s Assembly or House of Representatives) is called a foundational source of law of general reach (al-masd․ar al-As․lı¯ al-ʿa¯ m). Religion, Islamic law, has been historically considered a foundational source of restricted reach (al-mas․․dar al-as․lı¯ al-kha¯ s) more potent in family and probate matters than in purely civil law matters.19 Religion, now broadly incorporating both Islamic law and other Egyptian religious laws, has been (i.e. remains) the main source of the laws governing family and charitable endowments. But with the advent of the 1949 civil code, it is also acknowledged as a complementary source of the law (al-mas․․dar takmı¯lı¯ ) applying in all civil matters. 190

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By the same code, social customs and standards are counted as another complementary source of the law (al-mas․․dar takmı¯lı¯ –) filling in gaps created by the absence of direct legal rules governing a case.20 The sources’ theoretically determined reach does not preclude the potential of being equal-cum-conflicting in certain matters. We must now note that the fourth of the four sources of the law enumerated above, namely natural law and the principles of equity, is seen as a source of interpretation for legal codes, and it means to provide a reference to the objectives of the law or its basic rationale or essence ( jawhar al-qanu¯n) rather than being a separate source for it.21 Conflicting arguments of equal power will simply arise from friction among the first three sources of the law: legislation, religion and custom. Article 917 of Egypt’s Civil Code, which we have considered as an example of how conflict of laws may be resolved by the principle of temporal jurisdiction (later laws abrogate early laws), gives us an example here. The article states that, were a person to transfer his/her property to one of his/her inheritors but keep physical control of the property and draw benefits from it for the remainder of his/her life, the property transfer is presumed to fall under the laws of the will – as long as no evidence militates against this presumption.22 Medieval Sunni Islamic law would consider this a case of undelivered gift, which, if administered while the owner is in full possession of his health and mental capacity, is valid and hence excludes the purported property from the inheritance. Article 917 makes the transfer essentially invalid. An un-delivered gift is a non-existing gift. Conflicting legal imperatives involve medieval Islamic law’s role in modern laws in Egypt in an array of issues. The marital contract, for example, while part of the category of contract, is governed by special principles of Islamic legal provenance. Challenges to these principles come in different forms and measures. Repudiating the marriage of a Muslim female to a male, whose belonging to the Islamic faith is in question, led to well-publicized controversy in the 1990s (known as an apostasy case, mistakenly because Egyptian law does not consider apostasy to be an offence). In these matters, the secular commitments of the Egyptian judiciary are tested once and again.

4  The idea of an appellate system Whether it is reconciling Shafiʿi’s two doctrines, conflicting legal codes that compete for geographic or temporal jurisdiction, or even conflicting sources of the same national law (religious, customary and legislative), there are standards by which all conflicting elements of legal argument can be forced into harmony. But what happens when judges disagree, not about how to interpret a legal principle or reconcile conflicting ones, but about how to apply relevant principles to one and the same case? If you still remember the opening sections of this essay, Isnawi paid attention to this matter from the start of his discussion of ‘superior argument’, and he thought the solution lay in the Prophet’s instruction to Abu Bakr not to act as two judges in the same case. In Isnawi’s discussion, we do not hear about two judges having authority over one in the same case. Though the modern appellate system was not in place, this condition was addressed in medieval Islamic jurisprudence. But it was addressed as an exception to the rule, an example of judicial failure leading to judicial correction. In the modern context, where judicial correction is normalized, a new argument is needed for considering a supreme court’s decision juristically and legally superior to a district court’s decision. 191

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This last segment of the essay then addresses how a hierarchy of courts adds texture to the question of reconciling conflicting arguments and identifying superior argument. It is a test of how conflicting arguments of equal strength are treated in modern judicial practice. A hierarchy of courts, ascending from local to appellate to yet higher courts of cassation and supreme courts, while political and arbitrary from a legal and epistemological standpoint, may take care of the problem. That is, because a final word will be rendered and made obligatory for all lower courts when a supreme or high court decides a matter about which the low courts disagreed, the disagreement is resolved once and for all. But is this all there is? Is law finally a wrinkle of political science, unable to provide its own defence for its behaviour?

5  So, what have we learned? From the material we have presented here, both of pre-national and national laws, and both of the Sunni and Shiʿi traditions, there are four conclusions one may make with reasonable confidence. The first conclusion concerns the medieval Sunni tradition. The discursive legal space (in fiqh) that is occupied by conflicting-cum-equal arguments is larger than legal theorists, such as Baydawi and Isnawi (in us․u¯l al-fiqh), have covered. Medieval usu¯l theorists think that true conflict among equal arguments is limited to Sunnah and qiya¯ s. This is where a jurist has to work either to eliminate the equality or the conflict of the arguments. By showing that one report (hadith) or one analogy-based argument is superior to another, the equality is eliminated. By reconciling one with the other, the conflict is eliminated. In fiqh practice, every evaluation of conflicting arguments follows the same pattern. When two arguments seem to be opposed in the conclusions to which each point, either their equality or conflict must be eliminated. The Sunni legal theory of evaluating arguments provides a point of convergence and connection (a motherboard of sorts) for the rest of Islamic legal reasoning that attends to legal argument. Second, while Shiʿi juristic reasoning seems to differ significantly from its Sunni counterpart (e.g. the presence of tah․sı¯n/taqbı¯․h arguments and the absence, in theory, of qiya¯ s arguments), something of the same picture is found as to how conflicting and equal arguments are addressed, especially when it comes to the negation of ‘equality’ among arguments. Since qiya¯ s is either ignored or considered not authoritative, conflict in reports (akhba¯ r) is the focus of usu¯l treatments of conflicting, equal arguments, at least since al-ʿAllama al-Hilli (d. 726/1325). In practice, a broad battery of tools is found that assists the jurist to resolve conflicts-in-argument that may lead to legal indecisiveness. This process also takes an intergenerational form. That is, some arguments that made it to older works of jurisprudence are weeded out in later sources by showing these arguments did not stand up to scrutiny. This exercise is especially true of later (Hilli and Amili) Jaʿfari authorities, such as Miqdad al-Suyuri al-Hilli (d. 826/1423) and the First and Second Martyrs, Jamal al-Din Makki al-Amili (d. 786/1385) and Zayn al-Din al-ʿAmili (d. 965/1558). This process continues to operate until the modern centuries. In the 19th century, when Murteza Ansari wrote his Faraʾid al-Usul, Jaʿfari us․u¯l al-fiqh continued to offer the limited discussion on the conflict of akhba¯ r, while the practice continued to cover the same broad scope, and a process of revising Jaʿfari doctrines continued until our time. The third point to make is that modern laws in the Middle East have inherited something from the medieval tradition but also developed novel principles and practices. Chief among the latter is a new understanding of ‘abrogation’ as a manifestation of law-making bodies’ modification of their early reasoning and laws. This led to new enquiries. Laws, in 192

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the modern sense, conflict with one another in their temporal and geographic jurisdiction. The resolution of their conflict does not involve a decision on the relative quality of the arguments behind these laws. The law-making bodies do engage in evaluating the merits of arguments for the laws, but judges and lawyers simply learn how to resolve laws’ conflict based on mechanical rules. The fourth and last conclusion concerns the modern appellate system. The very idea of a higher court in a stable and airtight hierarchy is a modern innovation. It does half the work, if not all of it, in resolving how to evaluate conflicting arguments. The superior argument today is underpinned by a political decision, which in some cases comes down to a military decision.

Notes 1 Jamal al-Din al-Isnawi (d. 772/1370), Nihayat al-Sul fi Sharh Minhaj al-Usul, ed. Muhammad B. Mutiʿi, vol. 4 (Beirut: ʿAlam al-Kutub, 1343/1924), 432–8; a gloss on al-Baydawi (d. 658/1260), Minhaj al-Usul in one publication. 2 Sayf al-Din al-Amidi (d. 623/1233), Al-Ihkam fi Usul al-Ahkam, ed. ʿAbd al-Razzaq ʿAfifi, vol. 4 (Riyadh: Dar al-Sumayghi, 2003), 291. 3 Immanuel Kant’s antinomies of reason. 4 Qurʾan, 62:9. 5 Zayn al-Din b. Ali al-ʿAmili (al-Shahid al-Thani = the Second Martyr) (d. 966/1558), Rasaʾil al-Shahid al-Thani, vol. 1 (Qumm, Iran: Markaz al-Abhath wa-l-Dirasat al-Islamiyya, 1999), 175. 6 Ibid., vol. 1, 197, 204. 7 Ibid., vol. 1, 171–250. 8 Ibid., vol. 1, 176–7. 9 Jamal al-Din Miqdad b. Abdullah al-Suyuri (d. 826/1423), Al-Tanqih al-Raʾiʿ li-Mukhtasar al-Sharʾiʿ (a commentary on al-ʿAllama al-Hilli’s Mukhtasar), ed. A. al-Kuhkamri, vol. 1 (Qumm, Iran, n.p., n.d.), 8–9. 10 Ibid., 7–9. 11 Ibid. 12 Ibid., 10. 13 Hasan Kira, Us․u¯l al-Qanun (Introduction to Egyptian Jurisprudence) (Cairo: Dar al-Maʿarif, 1958), 503–6. 14 Ibid., 322. 15 Ibid., 503–6. 16 Seyyed Hasan Amin, Remedies for Breach of Contract in Islamic and Iranian Law (London: Royston Limited, 1984), 29. 17 Ibn Rushd (d. 596/1198), Bidayat al-Mujtahid wa-Nihayat al-Muqtasid, 6th edn, vol. 2 (Beirut: Dar al-Maʿarif, 1982), 141. 18 Kira, Usul al-Qanun, 492. Kira’s discussion in this context concerns retroactive applications of laws, especially when the new rule is a matter of binding public law, qa¯ʿida a¯ mira mutaʿilliqa bil-niza¯ m al-ʿa¯ m. 19 Ibid., 319. 20 Ibid., 332–3. 21 Ibid., 527–9. An application of these natural law principles appeared in respecting intellectual property and patent before modern Egyptian law attended to them in legislation. Kira, Usul al-Qanun, 530. 22 Ibid., 503–6.

Selected bibliography and further reading Amidi, Sayf al-Din Ali b. Muhammad al-. Al-Ihkam fi Usul al-Ahkam. Ed. ʿAbd al-Razzaq ʿAfifi (Riyadh: Dar al-Sumayghi, 2003). ʿAmili, Zayn al-Din b. Ali al-. al-Shahid al-Thani, or, the Second Martyr. Rasaʾil al-Shahid al-Thani (Qumm, Iran: Markaz al-Abhath wa-l-Dirasat al-Islamiyya, 1379/1421/1999). 193

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Kira, Hasan. Usul al-Qanun (Introduction to Egyptian Jurisprudence) (Cairo: Dar al-Maʿarif, 1958). Isnawi, ʿAbd al-Rahim b. Hasan Jamal al-Din al-. Nihayat al-Sul fi Sharh Minhaj al-Usul. Ed. Muhammad B. Mutiʿi (Beirut: ʿAlam al-Kutub, 1343/1924). Suyuri, Jamal al-Din Miqdad b. ʿAbdullah al-. Al-Tanqih al-Raʾiʿ li-Mukhtasar al-Sharaʾiʿ. Ed. A. al-Kuhkamri (Qumm, Iran: n.d.).

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11 Maqa‐s.id al-Shariʿah Felicitas Opwis

Introduction The legal discourse on the maqa¯․sid al-Shariʿah, commonly translated as purposes, objectives or intentions of the Shariʿah, arises out of practical considerations of finding rulings for situations unprecedented in the textual sources of Islamic law as well as theological discussions over the nature of God and His revealed word. The Qurʾan contains numerous references indicating that God acts purposefully and provides wisdom (e.g. Q. 23:115; 4:113; 17:39; 2:32; 4:26). Yet, questions about whether, by which means and to what extent human beings are able to discern the divine wisdom and purpose in the revealed law occupied Muslim scholars of law and theology for centuries. The following exposition focuses on the role and historical development of the purposes of the law in Sunni legal discourse in the pre-modern and modern period. Since the earliest time of Islam, the limited legal material revealed in the Qurʾan and available from the practice of the Prophet Muhammad (hadith, Sunnah) made Muslims look for principles to apply in the adjudication of matters not explicitly addressed in the scriptural sources of the law. Hence, articulations of the purposes of the law are closely tied to jurists’ efforts to resolve unprecedented cases within the parameters of the revealed law and apply scriptural rulings to changed circumstances. The notion that the divine law has been sent down for the good (s․ala¯․h) of humankind found legal expression already in the early decades of Islam. The fourth caliph, ʿUmar (r. 13–23/634–644), for example, suspended the ․hadd punishment for theft during times of famine and decided to keep the irrigated sawa¯d lands of Iraq under state control for the good of the community. Yet, in scholarly legal literature, articulations of general principles guiding the law-finding process appear rather late. First forays into formulating precepts that summarize the legal rationale behind a category of rulings, without yet providing large-scale systematization, are evident from the fourth/tenth century.1 A second impetus to the legal discourse on the purposes of the law came from theology. Debates over God’s omnipotence, whether God only does what is of benefit (mas․lah․a) for His creation, and the moral assessment of acts influenced jurisprudents’ interpretation of the maqa¯․sid al-Shariʿah. Questions of the intellect’s ability to determine something as good (h․asan) or bad (qabı¯․h) spurred interest in formulating what God intended by revealing His law to humankind. While members of the Muʿtazili school of theology, such as Abu Bakr 195

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al-Jassas (d. 370/980) and Abu al-Husayn al-Basri (d. 434/1044), favoured the position that God does what is in the best interest (mas․lah․a) of His creation and that humans are capable of determining ‘good’ and ‘bad’ independently from the revealed law, their counterparts from among Ashʿari as well as traditionalist scholars insisted that God is not obliged to consider people’s well-being and that all value judgements derive from God’s words alone.2 The latter stance, which leaves no room for law unaided by divinely revealed guidance, fostered scholars’ search for the maqa¯․sid al-Shariʿah within the authoritative texts. This discourse was articulated primarily in works dedicated to the foundations of law finding, usu¯l al-fiqh, in which jurisprudents systematize the revealed law and formulate principles to apply in the law-finding process.

1 Defining the purposes of the law and their role in law finding in the pre-modern period Since at least the fifth/11th century, works on legal theory closely associate the purpose of the law with attaining people’s well-being (mas․lah․a), though there is little evidence that mas․lah․a and its procedural equivalent istis․la¯․h were understood at the time as technical terms representing an identifiable and stable legal procedure. The breakthrough in defining the purpose of the law in tangible terms and linking it to a particular form of law finding comes with the Ashʿari Shafiʿi scholar Abu Hamid al-Ghazali (d. 555/1111). He posited that mas․lah․a is the purpose of the divine law (maqs․u¯d al-sharʿ), namely to protect for humankind their religion (dı¯n), life (nafs), intellect (ʿaql), offspring (nasl) and property (ma¯ l); whatever attains and preserves these elements on the level of necessity (d․aru¯ra), need (h․a¯ ja) and improvement (tah․sı¯n) constitutes mas․lah․a and is intended by the Lawgiver, and whatever harms them is a mafsada, a cause of corruption that needs to be averted.3 Al-Ghazali justified the validity of preserving these five elements of human existence on account of scriptural prohibitions and harsh punishments related to apostasy, homicide and retaliation (qis․a¯․s), drinking wine, fornication (zina¯ ) and theft. In al-Ghazali’s legal theory, recourse to the purposes of the law serves as a means for resolving cases that are not expressly decided in the scriptural sources of the law and fall outside the deductive procedure of legal analogy (qiya¯ s). Being in consonance with God’s intention in revealing His law to humankind, a ruling that brings about mas․lah․a for the five protected elements partakes in the divine purpose and, hence, enjoys religious legitimacy. Contrary to cases arrived in analogy to scriptural injunctions, the resulting ruling derives its validity not from a particular proof-text of the authoritative sources of the law but rather is inductively derived on account of innumerable pieces of evidence that as a whole support the jurist’s finding. Al-Ghazali integrated mas․lah․a into law finding by employing it like a ratio legis (ʿilla) in analogy: a textually unattested mas․lah․a (mas․lah․a mursala) serves as ratio legis to determine a ‘new’ ruling. Yet, he restricted the use of such unattested mas․lah ․as, bestowing legal validity only on those that affect one of the five above-mentioned elements at the level of necessity (d․aru¯ra), universality (kulliyya) and certainty (qat․ʿ). For example, al-Ghazali argued that in case an infidel enemy army shields itself with Muslim prisoners of war, it is legally permissible to violate the Qurʾanic prohibition of killing fellow Muslims (Q. 4:93; 6:151) and shoot at the Muslim human shield when it is certain that thereby the lives of all Muslims are saved from perdition. In contrast, al-Ghazali rejected as valid rationes legis unattested mas․lah ․as that fall short of necessity, certainty and universality and required that they be supported by textually authoritative evidence. He adamantly denied that mas․lah ․a constituted an independent source of law (as․l).4 196

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1.1  Employing the purposes of the law in analogy After al-Ghazali defined mas․lah․a as a valid measure of the purpose of God’s law, it soon became entrenched in legal discourse, irrespective of whether a scholar accepted the use of mas․lah ․a in law finding or not. Henceforward, the maqa¯․sid al-Shariʿah were intimately tied to the concept of mas․lah․a, oftentimes one seen as an expression of the other. Credit goes to Fakhr al-Din al-Razi (d. 606/1210) for providing the logical underpinnings of using mas․lah ․a as ratio legis to determine new rulings. He postulated that it is known with high probability (ghalabat al-z ․ann) that God revealed His law for the mas․lah․a of His creation. The underlying reason or wisdom (h․ikma) of the law is to bring about mas․lah․a and avert mafsada. Furthermore, al-Razi maintained that all instances of real mas․lah․as, i.e. those that are intended by the Lawgiver, have been revealed and, thus, are knowable even if only with probable knowledge. Moreover, al-Razi deemed the human intellect capable of determining that a ratio legis is correctly identified by looking whether it is suitable (muna¯ sib) for the ruling. A ruling that brings about mas․lah ․a in that it attains benefit (manfaʿa) and averts harm (mad․arra) from the believer is suitable and, according to al-Razi, is an expression of the underlying reason or wisdom (h․ikma) of divine legislation. Identifying a ruling’s ratio legis on account of the underlying reason is valid even without specific textual evidence, as al-Razi emphasized, because all real mas․lah ․as have been considered at least in their general form ( jins) in the revealed law.5 This intellectual move enabled al-Razi, and jurists after him, to legitimately employ unattested mas․lah ․as as rationes legis in the procedure of analogy arguing that even though they do not find specific mention in the texts, they are expressed in their general form, or else they would not qualify as mas․lah․a.

1.2  Employing the purposes of the law in legal precepts (qawa¯ʿid) While al-Razi envisioned notions of mas․lah․a to be applied only within the realm of legal analogy, other jurisprudents used a different approach to incorporate the purposes of the law and mas․lah․a into law finding, namely through the area of legal precepts (qawa¯ ʿid). Legal precepts or maxims are snappy statements that are abstracted from the corpus of legal rulings summarizing the legal principles that guide the decision-making process. They facilitate teaching, memorizing and practicing law. Jurists formulated such precepts since at least the third/ninth century, though, with the maturing of Islamic law and its institutions, works dedicated to precepts greatly proliferate starting in the sixth/12th century.6 In addition to composing multi-volume works expounding which legal principles govern which type of legal cases, such as al-Subki’s (d. 771/1369) or Ibn Nujaym’s (d. 970/1563) respectively entitled Kitab al-Ashbah wa-l-Nazaʾir (Book of Resemblances and Similitudes), the inductive reasoning process also turned jurists’ attention to the most important maxims in law finding, and thus to the objectives of the divine law. Definitions of precepts frequently reflect the intentions of the Lawgiver to avert hardship (mashaqqa) and harm (d․arar), and to promote benefit (nafʿ). It is said that the Shafiʿi jurist al-ʿIzz b. ʿAbd al-Salam (d. 660/1263) reduced the whole of the divine law to a single precept – attaining mas․lah․as and averting mafsadas.7 The Maliki jurist al-Qarafi (d. 684/1285) drew upon this maxim as arbiter in case of conflicting legal indicants. He interpreted concepts like granting license (rukhs․a) and blocking means to illegal ends (sadd al-dhara¯ ʾiʿ) in light of the purposes of the law. License to transgress a divine ruling, according to al-Qarafi, is granted when following it would lead to more harm than mas․lah․a. For example, should a person be faced with the dilemma 197

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of either starving or eating carrion, the mas․lah ․a of adhering to the divine prohibition of eating carrion (mayta) is outweighed by the mas․lah․a of saving one’s life. Arguing that the purpose of the law is to attain mas․lah․a, al-Qarafi also expanded the interpretation of the concept of sadd al-dhara¯ ʾiʿ. In addition to justifying the prohibition of legal means for illegal ends, he applied it also to allow the use of illegal means when they result in attaining a prevalent mas․lah․a. For instance, al-Qarafi permitted paying ransom for Muslim prisoners of war, despite the common rule that benefiting the enemy is prohibited, due to the greater mas․lah․a entailed in freeing the Muslim captives. 8 Within the framework of legal precepts, mas․lah․a and the purposes of the law are considered primarily when conflicting rulings and/or competing principles of law finding apply to one case. Then, attaining the Lawgiver’s objective receives priority over opposing, though legally legitimate, considerations. Despite entering the realm of legal precepts, a common feature of pre-modern interpretations of the maqa¯․sid al-Shariʿah is jurists’ focus on individual legal cases. The Lawgiver’s intentions are primarily discussed with reference to particular cases as opposed to applying them consistently to all areas of law or expounding a particular section of law in light of the divine intent to attain the believers’ mas․lah ․a. Exceptions are articulations on the maqa¯․sid alShariʿah by Najm al-Din al-Tufi (d. 716/1316) and Abu Musa al-Shatibi (d. 790/1388). These two jurists formulated comprehensive theories of the purposes of the law and their role in law finding. However, neither of their interpretations left any influence to speak of on subsequent generations of Muslim jurisprudents until their work was ‘discovered’ at the end of the 19th century. The Hanbali jurist al-Tufi suggested to take attaining mas․lah․a and averting mafsada as an overriding consideration in all legal decisions unless a ruling was explicitly stated in the authoritative texts or concerned matters of worship (ʿiba¯ da¯ t). Hence, al-Tufi argued that in cases in which jurists disagree on the precise interpretation of the textual evidence (i.e. the majority of cases), the purpose of the law to achieve mas․lah․a, which al-Tufi deemed rationally discernible, receives priority. In al-Tufi’s legal theory, reliance on the purposes of the law serves not only to accomplish legal change but also to overcome divisions among schools of law as well as inner-madhhab disagreement.9 The most comprehensive articulation of how mas․lah․a and the maqa¯․sid al-Shariʿah guide the law-finding process comes from the Andalusian Maliki scholar al-Shatibi. Al-Shatibi proposed a hierarchy of legal evidence based on their epistemic value – the more general and universal statements are known with a higher degree of probability (or with certainty) than statements that are specific and particular. Emphasizing the early part of the Qurʾan, al-­Shatibi argues that the Meccan suras contain the general message of Islam in which the universal sources of the law are laid down, with the Medinan suras as well as the Sunnah constituting the particulars of the law that elucidate, specify, qualify or complement the Meccan revelation. Building on al-Ghazali’s definitions and categories, he understood attaining mas․lah ․a and averting mafsada at the level of necessities, needs and matters of improvements as the universal sources of the law, and therefore certain and immutable. In contrast, the specific rulings of the Qurʾan and the prophetic practice constitute particulars that are probable in their epistemic value and thus amenable to change according to circumstances. When, in the law-finding process, a particular ruling stands in opposition to the universal source to attain mas․lah․a, the universal receives priority. However, al-Shatibi exempted from the dominance of the purposes of the law those scriptural rulings that constitute a concession (rukhs․a) or a specification (takhs․¯ı․s), that pertain to acts of worship (ʿiba¯ da¯ t), to acts that occurred or potentially happened during the lifetime of the Prophet as well as the continuous practice of the early Muslim community.10 Al-Shatibi’s interpretation of the purposes of the 198

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law greatly enhances their importance in the law-finding process, yet at the same time it questions long-established epistemological hierarchies, upsetting the commonly held priority of specific textual evidence over general principles. As mentioned, neither al-Tufi’s nor al-Shatibi’s interpretations of the purposes of the law and their holistic integration into all aspects of law finding receive attention by other jurisprudents until the early 20th century. Up to the modern period, maqa¯․sid al-Shariʿah were predominantly understood and employed in analogy via mas․lah․a mursala as ratio legis, in legal precepts or when weighing (tarjı¯․h) the validity of conflicting rulings in accordance with the divine legal intent. Although one finds modifications and refinements to the definitions and categories formulated by al-Ghazali, jurisprudents generally accepted that mas․lah․a and the maqa¯․sid al-Shariʿah are not independent sources of law, and that mas․lah․a is defined as preserving the five essential elements of religion, life, intellect, offspring and property on the level of necessity (d․aru¯ra), need (h ․a¯ ja) and improvement (tah․sı¯n) – even if jurists differ on the rank order of these elements and some substitute offspring with honour (ʿird․). The purposes of the law to attain mas․lah․a and avert mafsada were, and still remain, important tools for jurists to expand the legal edifice and accommodate legal change in Islam. They were often used to arrive at unprecedented rulings and at the same time to justify them – an analytical conflation of means and ends that Muslim jurisprudents rarely acknowledge. The extent to which legal change can be achieved depends primarily on how the purposes of the law are defined as well as how they are employed in the law-finding procedures. Defining the maqa¯․sid al-Shariʿah as preserving the five necessities and applying mas․lah․a as ratio legis for legal cases not directly addressed in the textual sources enables jurists to incorporate such cases into the fold of the divine law. At the same time, it prevents the established legal edifice and its hermeneutics from being overturned and the substance of the law altered in any major way. Integrating the purposes of the law into legal precepts to order large sections of law or to justify the application of legal principles puts the focus on the outcome achieved by implementing God’s revealed law. It allows for greater flexibility in addressing changing environments than employing mas․lah․a in analogical reasoning, yet opens the door for overriding legal rulings derived from the textual sources of the law in the name of the divine purpose of the same and thereby highlights tensions between the letter and the spirit of the law.

2  Interpreting the purposes of the law in the modern period The onset of modernity initiated far-reaching changes in all sectors of society and transformed significantly the way Islamic law was produced and applied in society. Increasing reliance on codified law and legal statutes, accompanied by the rise of the nation-state with its exclusive claim on the sphere of law, as well as the expansion of the educational sector beyond the ʿulama¯ ʾ and the traditionally taught sciences, gave rise to calls for re-thinking Islamic law. An important aspect of reformist legal thought focused on opening ‘the gate of ijtiha¯ d’, independent reasoning when scriptural sources are silent or ambiguous, in order to enhance the flexibility of Islamic law to address the changed environment and retain its relevance under the onslaught of Western-inspired law. Ijtiha¯ d is also that area of law in which the application of mas․lah․a and the maqa¯․sid al-Shariʿah are discussed. Reform-oriented scholars of the early 20th century, such as Jamal al-Din al-Qasimi (1866–1914) and Muhammad Rashid Rida (1865–1935), publicized the legal theories of al-Tufi and al-Shatibi in the periodical al-Manar. Their objective was to confirm the compatibility of Islam with reason, return to the spirit of 199

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Islam, and enhance the responsiveness of Islamic law to contemporary conditions. Fighting against secular legislation, Rashid Rida advocated to make mas․lah․a the basis of legislation, which he hoped would establish truth and justice in society.11 While early reformers like al-Qasimi and Rashid Rida championed al-Tufi’s interpretation of the maqa¯․sid al-Shariʿa, which simplified procedures of law finding without overturning the hermeneutics of legal interpretation, other jurisprudents harshly criticized al-Tufi’s articulation as utilitarianism akin to the theories of Bentham and Mills and accused it of changing divine rulings arbitrarily for seemingly rational benefit.12 The increasing marginalization of Shariʿah in the legal systems of the newly emerging nation-states in the first half of the 20th century led jurisprudents to pursue other avenues to strengthen Islamic law in society. Many reform-oriented jurists sought to preserve the traditional legal edifice while also enhancing the adaptability of Islamic law. Turning away from the ‘traditional’ way of law finding, dominated by analogical reasoning and recourse to legal precepts, jurists’ search for suitable methods to address the current legal needs focuses on the maqa¯․sid al-Shariʿah and mas․lah․a as guiding standards in representing an Islamic alternative to Western-inspired or imported laws. While the first decades of the 20th century still saw only modest discussions about the intentions of the law, with Rashid Rida’s efforts in al-Manar and his own work Yusr al-Islam spearheading the discourse, after the 1940s numerous works on the subject matter appeared.13 Among the most influential articulations remain those of Muhammad al-T ․ ahir ibn ʿAshur’s (1879–1973), who specifically applied the objectives of the law to the modern period. Also important for the dissemination of interpretations of mas․lah․a were ʿAbd al-Wahhab Khallaf (d. 1956), Muhammad Saʿid Ramadan al-Buti (d. 2013) and ʿAllal al-Fasi (1910–1974).14 More recently, a new wave of publications built upon these authors’ works, commented on their thought and advanced the discussion. Notably, Arabic no longer represents the predominant language of the discourse on the maqa¯․sid al-Shariʿa, and significant contributions come from scholars who received educational credentials outside the traditional curriculum of the ʿulama¯ ʾ – reflecting the globalization and democratization of access to knowledge. Among prominent participants in the maqa¯․sid al-Shariʿah discourse one finds a wide variety of scholars, ranging from Yusuf al-Qaradawi, Ismaʿil al-Hasani, Ahmad al-Khamlishi, Jasser Auda, Jamal al-Din ʿAtiyya to Adis Duderija, to name but a few.15 Although most scholars today base their interpretation on concepts and definitions of pre-modern jurists, in particular al-Ghazali and al-Shatibi, they depart from them by adapting mas․lah․a and the maqa¯․sid al-Shariʿah to their own environment. Despite the wide range of interpretations, a common factor is their focus on the maqa¯․sid instead of mas․lah․a. In the pre-modern period most jurisprudents focused on mas․lah ․a as a tool to derive legal rulings and as a criterion to judge their correctness. The larger framework of the purposes of the law was discussed mainly to justify the integration of mas․lah․a in law-finding procedures. Jurisprudents of the 20th and 21st centuries often take the opposite approach by first expounding on the objectives of the divine law and then discussing how to implement these objectives through procedures that attain mas․lah․a and avert mafsada. The close association between mas․lah ․a and the purposes of the law has brought about the term often used in secondary scholarship, maqa¯․sid-cum-mas․lah․a or maqa¯․sidı¯ approach.16 Khallaf ’s (in-)famous statement that ‘wherever one finds mas․lah․a, there lies God’s legislation’17 reflects the attitude that identifying that a ruling entails mas․lah․a (however defined) makes it an expression of the divine law. Since it is impossible to do justice to the vast contemporary literature on the maqa¯․sid al-Shariʿa, the following sections present broad tendencies in the debate, exemplifying trends and approaches in reference to a few representative scholars. 200

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2.1  Expanding the definition of the maqa¯ s. id al-Shariʿah Since the second half of the 20th century, expositions on the purposes of the law exhibit a vocal critique of al-Ghazali’s definition and categories of the maqa¯․sid al-Shariʿah and mas․lah․a. Although al-Ghazali had faced criticism for his position that the purpose of the law is to preserve the five necessities, it was primarily directed at the number or selection of the ­necessities – frequently citing honour (ʿird․) instead of or in addition to progeny (nasl). In contrast, many contemporary authors criticize al-Ghazali’s definition of the purposes of the law as too narrow and too focused on the individual believer to capture the divine legal intent. This sentiment is epitomized by the Moroccan jurist Ahmad al-Khamlishi who states that ‘it is insufficient today to confine oneself and take as reference point for ordering society and relations among individuals the maqa¯․sid, or five higher mas․lah․as (al-mas․a¯ lih․ al-ʿulya¯ ), that al-Ghazali set forth’.18 Scholars, such as Ibn ʿAshur, al-Qaradawi and Jamal al-Din ʿAtiyya argue that defining the purposes of the law as protecting the five necessities accentuates the mas¸lah ․as of the individual and prevents from looking at society, the ummah, the state and human relations more broadly.19 Revisiting the definitions and number of necessities, today’s scholars broaden the interpretation of the five necessities and expand the elements that the law intends to protect. For example, Ibn ʿAshur argues that the purpose of preserving the intellect (h ․ifz ․ al-ʿaql) goes beyond prohibiting the consumption of alcohol and includes more generally preventing harm to the mind, such as from opium, hashish and heroin. Others, like al-Buti and ʿAtiyya, include under the protection of the intellect also state censorship of the media.20 Yet, reference to safeguarding the necessities are also used for establishing positive rights. Al-Qaradawi, for example, states that the textual sources provide many more positive instances that encourage the protection of the intellect than only the negative prohibition against drinking wine; as evidence he refers to the frequent encouragements in the Qurʾan and Hadith to seek knowledge (t․alab al-ʿilm).21 This interpretation is taken one step further by ʿAtiyya to argue for mandatory education and development of a scientific mindset.22 Al-Khamlishi maintains that the Qurʾanic punishment for theft (Q. 5:38) does not merely aim at protecting a person’s property but at preserving public safety, people’s security and peace of mind.23 He also advances another line of criticism of al-Ghazali’s interpretation of the purposes of the law by objecting to counting the protection of property (ma¯ l) among the purposes of the law, contending instead that the Qurʾanic verses that deal with property nowhere command the preservation of property (al-muh․a¯ faz ․a ʿala¯ al-ma¯ l). To the contrary, al-Khamlishi says that people’s desire to accumulate and preserve property destroys today’s society and deprives it of the value of moderation (qana¯ʿa), solidarity (taka¯ fu¯l) and mercy (rah․ma).24 Rejecting a narrow definition of the purposes of the law, scholars focus on values that express an individual’s relationship to society. Ibn ʿAshur argues that by defining the maqa¯․sid in terms of the individual, one excludes important divine objectives, such as equality (musa¯ wa¯ ) and freedom (h ․urriyya), which belong as much to the fundamental purposes (maqa¯․sid as․liyya) of the Shariʿah as do the preservation of the five necessities. That the definition of maqa¯․sid alShariʿah needs to be expanded is echoed by al-Qaradawi. He maintains that just as relevant, or even more so, among the purposes of the divine law are the preservation of freedom (h․urriyya), equality (musa¯ wa¯ ), fraternity (ikha¯ ʾ), solidarity (taka¯ ful) and human rights (h ․uqu¯q al-insa¯ n).25 Since the second half of the 20th century, Muslim scholars increasingly turn away from mas․lah․a as a procedural tool for resolving cases. They interpret the essential necessities in light of today’s relationships between the individual and society, and interpret the implementation of the maqa¯․sid al-Shariʿah within the context and experience of the modern nation-state. 201

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Thus, one finds the divine purposes of the law translated into entitlements and rights of the individual citizen. For instance, Ismaʿil al-Hasani proposes that contemporary society is in great need of including among the essential necessities (d ․aru¯riyya¯ t) also the right to freedom of expression, to political association, and to elect and remove rulers as well as the right to employment, food, housing, clothing and medical treatment.26 In a similar fashion, al-­ Khamlishi counts among the higher purposes (al-maqa¯․sid al-ʿulya¯ ) of the law individual freedom as well as social, economic and political rights. These rights find expression for example in the ability to participate in running public affairs (al-musa¯ hama fı¯ tasyı¯r shuʾu¯n al-umma), which al-Khamlishi justifies by reference to Qurʾan 42:38 ‘who (conduct) their affairs by mutual consultation’.27 For al-Khamlishi, the expanded definition of the purposes of the law is part of his project to re-define the role of independent reasoning (ijtiha¯ d) for Islamic law and to overcome what he sees as legal stagnation ( jumu¯d).28

2.2  System-approach to the maqa¯s. id al-Shariʿah Among more recent publications on mas․lah․a and the purposes of the law one finds works that may be called ‘system-approach’. Their authors try to provide a holistic approach to ordering human life on the basis of mas․lah․a to realize God’s purposes in revealing His law.29 The work of Jamal al-Din ʿAtiyya exemplifies this trend. In his book Towards Realization of the Higher Intents of Islamic Law, ʿAtiyya comprehensively presents the debate over the objectives of the law and the number and elements of the essential necessities. He enumerates 24 essential purposes of the law, which he classifies into four interrelated realms pertaining to the individual, the family, the ummah and humanity in general.30 For each intention, he provides a definition, how it can be achieved and what is connected to it. For example, the first purpose of the divine law in the realm of the individual is, according to ʿAtiyya, the preservation of human life, which means to protect life from harm, damage to the body and death. It is achieved, he states, by providing security in the form of prohibitions of murder, assault and suicide as well as enforcing the laws of retaliation. In addition to the ‘traditional’ interpretation, ʿAtiyya includes under preserving life also the basic human needs of food, clothing and shelter as well as protection against mortal dangers, such as fire, drowning, car accidents and radiation. Beyond protecting the physical well-being of the body, ʿAtiyya extends the preservation of life also to psychological and spiritual needs. He points out that protecting personal freedom and dignity is not simply complementary to this objective of the Lawgiver but, because without them life cannot be preserved, they belong to the level of needs and improvements respectively.31 In the realm of the family, ʿAtiyya understands the essential purpose as ordering the relations between the sexes through marriage, polygamy and divorce; preserving the species through regulating procreation; establishing harmony, affection and compassion among couples; and ordering the family institutionally and financially. These latter two objectives ʿAtiyya interprets in terms of the financial rights and obligations laid out in Islamic personal status and inheritance law.32 At the level of the ummah, ʿAtiyya views the purposes of the law to reflect its distinction from non-Muslim communities. Hence, the law’s objectives address conceptions of the caliphate (khila¯ fa), leadership (ima¯ ma), consultation (shu¯ra¯ ), jiha¯ d, establishing justice through the judiciary and solidarity.33 When discussing the fourth realm of the purposes of the law, ʿAtiyya posits that the universal legal rulings of the divine law are intended to be embraced by all people based on reason and logic. These universal principles include mutual understanding and cooperation; realizing the vice-regency of humans on earth by, for instance, environmental protection, fighting crime, and agricultural, industrial and service-related development; achieving world peace based on justice; protecting human 202

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rights; and disseminating the Islamic message. Implementing such universal principles is the goal of Muslim foreign policy and international relations.34 As evident, jurisprudents of the modern period interpret the purposes of the law differently than their predecessors. They move away from reducing God’s intentions by revealing His law to preserving the five necessities of human existence, as defined by al-Ghazali and commonly accepted among jurists for centuries. The discourse moves away from understanding mas․lah ․a and the maqa¯․sid al-Shariʿah in terms of the individual within the context of empire towards today’s relationships between the individual and global society within the context of nation-states. Instead of focusing on mas․lah․a as a procedural tool for resolving cases unaddressed in the textual sources of Islamic law, scholars expand the scope of the maqa¯․sid al-Shariʿah. Hence, they interpret the purposes of the law in light of collective values, including among them justice, equality, freedom, human rights, political participation and equal opportunities, which often are deemed inalienable, God-given rights. These universal objectives of the law are not tied to individual statements in the authoritative texts but derive their validity from an inductive reading of the whole of the revealed message.

3  Concluding reflections Mas․lah․a and the maqa¯․sid al-Shariʿah have always been an important avenue to affect legal change in Islamic law. They often serve to arrive at unprecedented rulings and at the same time to justify them – an analytical conflation of means and ends that is rarely acknowledged by Muslim jurisprudents. The extent to which legal change is achieved depends primarily on how the purposes of the law and mas․lah ․a are defined as well as on how they are applied in law-finding procedures. Defining the purposes of the law narrowly as preserving the five necessities and applying mas․lah․a as ratio legis for legal cases not directly addressed in the textual sources enables jurists to incorporate such new cases into the fold of the divine law. At the same time, it prevents the overturn of the established legal edifice and its hermeneutics, saving the substance of the law from being altered in any major way. Integrating the purposes of the law into legal precepts to order large sections of law or justifying the application of legal principles puts the focus of law finding on the outcome intended by God’s revealed law. Novel situations are evaluated as to how much they conform with the purposes of the law, and thus enhance legal flexibility and adaptability of the law to the ever-changing environment. The shifts in interpreting the maqa¯․sid al-Shariʿah in the modern period, namely towards abstraction, focus on society and a system-like approach, open up possibilities for Islamic law but also pose challenges. Understanding mas․lah․a and the maqa¯․sid al-Shariʿah in abstract and community-oriented terms facilitates a legal system that is adaptable according to place and time. Universal divine purposes are realized according to context, and, hence, permit a variety of particular rulings and policies. This provides jurists with flexible solutions to unprecedented situations that are in line with the objectives of the divine law. It, thus, allows Islamic law to be applicable in different contexts, and makes change an integral part of the legal system. The move towards more abstract communal purposes, however, makes it all the more difficult to define them precisely. Proclaiming that the divine purposes are universal is potentially empty without providing tangible substance and meaning.35 The unresolved tension between universalism and subjective interpretation of what these universals mean, including an agreed upon definition of what constitutes mas․lah ․a in concrete terms and its relationship to the textually explicit rulings in Qurʾan and Sunnah engenders controversy as well as abuse in the name of the divine intent. Different scholars interpret the maqa¯․sid al-Shariʿah very differently. For example, Adis Duderija and Jamal al-Din ʿAtiyya both identify as divine 203

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objectives for the family ‘affection’ (mawadda), ‘compassion’ (rah ․ma) and ‘repose’ (sakı¯na). Yet Duderija interprets these purposes as evidence for a gender-egalitarian Islamic family law, whereas ʿAtiyya employs them to assert traditional gender hierarchies.36 Such differences in interpretation provide opportunities for innovative application of Islamic law yet may just as well lead to authoritarian exploitation in the name of God’s intentions by state institutions or vigilante.

3.1 The maqa¯s.id al-Shariʿah as public policy Another observation about the intense focus on the purposes of the law is that it approaches an ‘ideology’. The maqa¯․sid al-Shariʿah are no longer debated in connection with the sources of the law or methods of law finding, but are used as an ideology for policy and action. The onus to put the purposes of the law into practice is put on the state, by establishing policies, laws and institutions that protect the necessities and realize God’s objectives for humankind. This shift reflects the changed role of law in the modern nation-state and the state’s exclusive claim on the sphere of law. It is no longer the individual jurist who has to decide whether a particular ruling or course of action agrees with the purposes of the Lawgiver, but it is the state and its functionaries that are responsible for realizing them, whether it is policies to prevent the outbreak of epidemics or providing mandatory education. In this respect, the maqa¯․sid al-Shariʿah are akin to what Ibn Taymiyya (d. 728/1328) called siya¯ sa sharʿiyya, governance in accordance with the divine law. Yet, employing the maqa¯․sid-cum-mas․lah․a approach as a type of siya¯ sa sharʿiyya remains at present rather vague. Largely absent from contemporary discussions are questions as to who exactly in a state legal system has the ability and the right to determine the purposes of the Shariʿah – trained ʿulama¯ ʾ or secularized state legislators? So far unsatisfactorily addressed are the difficult questions of modern states, such as citizens with diverse religious a­ ffiliations – without creating an unequal dhimmı¯ status for non-Muslims and crying apostasy at Muslims who exercise religious freedom.37 No consensus has been reached on how to apply the divine purpose of legal equality to gender. Likewise, how to implement the particulars of the Qurʾanic text in those cases where Muslims’ attitudes are changing, such as towards executing the ․hudu¯d punishments, still has to be resolved. Just as important, questions of the limits of the reach of the nation-state and its legal institutions into the behaviour of its citizens (from legislation to enforcement), that is the line between ‘legal’ and ‘moral’ or between ‘criminal offence’ and ‘moral infraction’, has rarely been explored in any serious manner. Zaman pointedly remarks about Yusuf al-Qaradawi’s proposal to consider mas․lah․a and the purposes of the law in all areas of modern society that thereby ‘the distinction between sin and crime, and between moral and legal infractions, collapses’.38 Nevertheless, the attention that scholars devote to the objectives of Islamic law and the innovative interpretations they articulate offer new avenues of accomplishing legal change and giving Shariʿah a role and place in the modern world.39

Notes 1 Cf. Necmettin Kızılkaya, ‘An Outline of the Historical Evolution of Qawa¯ʿid Literature in Islamic Law’, American Journal of Islamic Social Sciences 28 (2011): 76–105 (see pages 83, 88 and 91). 2 Presenting the intricate positions of Muʿtazili and Ashʿari scholars towards human ability to identify the maqa¯․sid al-Shariʿah is beyond the scope of this chapter. Main trends and ideas are presented 204

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in George F. Hourani, Islamic Rationalism: The Ethics of ʿAbd al-Jabba¯ r (Oxford: Clarendon Press, 1971); Majid Fakhry, ‘Justice in Islamic Philosophical Ethics: Miskawayh’s Mediating Contribution’, Journal of Religious Ethics 3 (1975): 243–54; Felicitas Opwis, Mas․lah ․a and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century (Leiden: Brill, 2010), 27–32. 3 Abu Hamid Muhammad al-Ghazali, al-Mustasfa min ʿIlm al-Usul, ed. Hamza b. Zuhayr Hafiz, 4 vols ( Jedda, Saudi Arabia: Sharikat al-Madinah al-Munawwara li-l-Tibaʿ wa-l-Nashr, 1993), 2: 481–2. 4 Al-Ghazali, al-Mustasfa, 2: 482, 487–95 and 502–3; Opwis, Mas․lah․a and the Purpose of the Law, 65–88. 5 Fakhr al-Din Muhammad b. ʿUmar b. al-Hasan al-Razi, Al-Mahsul fi ʿIlm Usul al-Fiqh, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 2: 319–32, 389–92, 480–2 and 578–81; Opwis, Mas․lah․a and the Purpose of the Law, 96–131. 6 For an overview of legal precepts, their development and application in Islamic law see Kızılkaya, ‘An Outline’; Wolf hart Heinrichs, ‘Qawa¯ʿid as a Genre of Legal Literature’, in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden: Brill, 2002), 365–84; Mohammad Hashim Kamali, ‘Legal Maxims and Other Genres of Literature in Islamic Jurisprudence’, Arab Law Quarterly 20 (2006): 77–101; Mohammed Khalil, ‘The Islamic Law Maxims’, Islamic Studies 44 (2005): 191–207; and Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (New York: Cambridge University Press, 2014). 7 Heinrichs, ‘Qawa¯ʿid as a Genre of Legal Literature’, 375. 8 Ahmad b. Idris al-Qarafi, Sharh Tanqih al-Usul fi Ikhtisar al-Mahsul fi al-Usul (Cairo: Matbaʿat Kulliyyat al-Sharifa, 1381/1961), 85–7, 415–16 and 448–50. 9 Al-Tufi presented his interpretation of mas․lah․a in a work on hadith. The relevant text has been edited by Mustafa Zayd, al-Maslaha fi al-Tashriʿ al-Islami (Cairo: Dar al-Fikr al-ʿArabi, 1384/1964), 206–40, see in particular 232–40; cf. also Opwis, Mas․lah․a and the Purpose of the Law, 200–46. 10 Ibrahim b. Musa al-Shatibi, al-Muwafaqat fi Usul al-Shariʿa, ed. ʿAbdullah Diraz, 4 vols (Cairo: Dar al-Fikr al-ʿArabi, n.d.). For short accounts of al-Shatibi’s theory see Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnı¯ Us․u¯l al-Fiqh (Cambridge: Cambridge University Press, 1997), 162–206; Opwis, Mas․lah․a and the Purpose of the Law, 247–333. 11 Muhammad Rashid Rida, Yusr al-Islam wa-Usul al-Tashriʿ al-ʿAmm (Cairo: Maktabat al-Salam al-ʿAlamiyya, 1984), 153. 12 Cf. Badran Abu al-ʿAynayn Badran, Usul al-Fiqh al-Islami (Alexandria: Muʾassasat Shabab al-Jamiʿa, 1984), 213. 13 For an overview of the thought of several jurists of the 20th century, i.e. the early ‘wave’ of writing on mas․lah․a, see Felicitas Opwis, ‘Mas․lah․a in Contemporary Islamic Legal Theory’, Islamic Law and Society 12 (2005): 183–223. 14 Muhammad al-Tahir Ibn ʿAshur, Maqasid al-Shariʿah al-Islamiyya (Tunis: al-Sharika al-Tunisiyya lil-Tawziʿ, 1978), trans. (into English) as Ibn Ashur: Treatise on Maqasid al-Shariʿah, trans. (from Arabic) and annot. Mohamed el-Tahir el-Mesawi (London: The International Institute of Islamic Thought, 1427/2006) – references are to the Arabic edition; ʿAbd al-Wahhab Khallaf, Masadir al-Tashriʿ al-Islami fi-ma la Nassa fih, 6th edn (Kuwait: Dar al-Qalam li-l-Nashr wa-l-Tawziʿ, 1414/1993); Saʿid Ramadan al-Buti, Dawabit al-Maslaha fi al-Shariʿah al-Islamiyya, 4th edn (Beirut: Muʾassasat al-Risala, 1402/1982); ʿAllal al-Fasi, Maqasid al-Shariʿah al-Islamiyya wa-Makarimuha (Rabat: Matbaʿat al-Risala, 1979). 15 See Yusuf al-Qaradawi, Dirasa fi Fiqh Maqasid al-Shariʿah: Bayna al-Maqasid al-Kulliyyah wa-l-Nusus al-Juzʾiyya (Cairo: Dar al-Shuruq, 1427/2006); Ismaʿil al-Hasani, Nazariyyat al-Maqasid ʿinda alImam Muhammad al-Tahir ibn ʿAshur (Herndon, Virginia: International Institute of Islamic Thought, 1415/1995); Ahmad al-Khamlishi, Wijhat Nazar, 4 vols (Rabat: Dar Nashr al-Maʿrifa, 1998 (vol. 2), 2000 (vol. 3), 2002 (vol. 4)); Jamal al-Din ʿAtiyya, Nahwa Tafʿil Maqasid al-Shariʿah (Damascus: Dar al-Fikr, 2001), trans. as Gamal Eldin ʿAtiyya, Towards Realization of the Higher Intents of Islamic Law: Maqa¯․sid al-Shariʿah: A Functional Approach, trans. (from Arabic) Nancy Roberts (London: International Institute of Islamic Thought, 1428/2007) – references are to the English translation; Jasser Auda, Maqasid al-Shari'ah as Philosophy of Islamic Law: A Systems Approach (London: International Institute of Islamic Thought, 1429/2008); Adis Duderija, ‘Maqa¯․s id al-Sharı¯ʿa, Gender Non-­ patriarchal Qurʾa¯ n-Sunna Hermeneutics, and the Reformation of Muslim Family Law’, in Maqa¯․sid al-Sharı¯ʿa and Contemporary Reformist Muslim Thought, ed. Adid Duderija (New York: Palgrave Macmillan, 2014), 193–218; Adis Duderija, ‘A Case Study of Patriarchy and Slavery: The Hermeneutical Importance of Qurʾa¯ nic Assumptions in the Development of a Values-Based and Purposive Qurʾa¯ nSunna Hermeneutic’, in Maqa¯․sid al-Sharı¯ʿa and Contemporary Reformist Muslim Thought, 219–45. 205

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16 Cf. Adis Duderija, ‘Introduction’, in Maqa¯․sid al-Sharı¯ʿa and Contemporary Reformist Muslim Thought, 1–11; David Johnston, ‘A Turn in the Epistemology and Hermeneutics of Twentieth Century Us․u¯l al-Fiqh’, Islamic Law and Society 11 (2004): 233–82. ̣ 17 ‘H ․ aythuma¯ wajadat al-mas․lah․a fa-thumma sharaʿa Allah’, Khallaf, Masadir al-Tashriʿ al-Islami, 90, 101 and 160. Khallaf was severely criticized for this statement by al-Buti (Dawabit al-Mas․lah․a, 12). 18 Al-Khamlishi, Wijhat Nazar, 2: 126 and 158; for a detailed critique of the necessities as defined by al-Ghazali, see 3: 15–18. 19 Such criticism is voiced explicitly as well as implicitly by Ibn ʿAshur (Maqasid al-Shariʿa, 78, 93 and 136), al-Qaradawi (Dirasa, 25–30) and ʿAtiyya (Towards Realization, 85). 20 Ibn ʿAshur, Maqasid al-Shariʿah, 80; al-Buti, Dawabit al-Maslaha, 252–3; ʿAtiyya, Towards Realization, 120. 21 Al-Qaradawi, Dirasa, 29. 22 ʿAtiyya, Towards Realization, 120 and 203. 23 Al-Khamlishi, Wijhat Nazar, 3: 15–16 and 19. 24 Ibid., 3: 16. 25 Ibn ʿAshur, Maqasid al-Shariʿah, 95–9 and 130–5; al-Qaradawi, Dirasa, 28. 26 Al-Hasani, Nazariyyat al-Maqasid, 299. 27 Al-Khamlishi, Wijhat Nazar, 2: 126. The Qurʾan translation is Yusuf Ali. 28 The notion of a solidified or stagnant Islamic law and Islamic thought is expressed several times in al-Khamlishi’s work, see e.g. Wijhat Nazar, 2: 126 and 152, 3: 10, 54 and 57. 29 The work of ʿAtiyya, Auda, and Bin Sattam are examples of the system approach; yet, they vary greatly in terms of mastery of the pre-modern discourse as well as the solutions they put forward, with, for example, Ibn Sattam’s articulations resembling more a self-help book than scholarly contribution (Abdul Aziz Bin Sattam, Sharı¯ʿa and the Concept of Benefit: The Use and Function of Mas․lah․a in Islamic Jurisprudence (London: I. B. Tauris, 2015). 30 ʿAtiyya, Towards Realization, 116–49. 31 Ibid., 119. 32 Ibid., 124–31. 33 Ibid., 131–41. 34 Ibid., 142–9. 35 Cf. Sherman A. Jackson, ‘Literalism, Empiricism, and Induction: Apprehending and Concretizing Islamic Law’s Maqa¯․sid al-Sharîʾah [sic] in the Modern World’, Michigan State Law Review (2006): 1469–86, at 1479, 1480–2 and 1485. 36 Adis Duderija, ‘Maqa¯․s id al-Sharı¯ʿa, Gender Non-patriarchal Qurʾa¯ n-Sunna Hermeneutics’, 206 and 215; ʿAtiyya, Towards Realization, 124–31. Ibn ʿAshur’s emphasis on the divine objective of equality also does not extend to gender (cf. Maqa¯․sid al-Sharı¯ʿa, 95–9). 37 Discussing the Tunisian thinker al-Ghannushi, Karim Sadeq attempts to employ the purposes of the law as overarching principles under which religious freedom and equality of all citizens can be exercised. He envisions the maqasid al-Shariʿah to serve akin to constitutional principles (Karim Sadeq, ‘Mas․lah․a and Rashid al-Ghannushi’s Reformist Project’, in Maqa¯․sid al-Sharı¯ʿa and Contemporary Reformist Muslim Thought, 151–75). 38 Muhammad Qasim Zaman, ‘The ʿUlama of Contemporary Islam and the Conceptions of the Common Good’, in Public Islam and the Common Good, ed. Armando Salvatore and Dale F. Eickelmann (Leiden: Brill, 2004), 129–155, at 134–5. 39 Western scholarship not rarely portrays Islam as antithetical to modernity and modernization. For a brief overview of such views, see Deina Abdelkader, ‘Modernity, the Principle of Public Welfare (mas․lah․a) and the End Goals of Sharı¯ʿa (maqa¯․sid) in Muslim Legal Thought’, Islam and Muslim–­ Christian Relations 14 (2003): 163–74.

Selected bibliography and further reading ʿAttia, Jamal al-Din. Towards Realization of the Higher Intents of Islamic Law: Maqa¯․sid al-Shariʿa: A Functional Approach, trans. (from Arabic) Nancy Roberts (London: International Institute of Islamic Thought, 1428/2007). Duderija, Adis (ed.). Maqa¯․sid al-Sharı¯ʿa and Contemporary Reformist Muslim Thought (New York: Palgrave Macmillan, 2014). 206

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Ghazali, Abu Hamid Muhammad al-. Al-Mustasfa min ʿilm al-Usul. Ed. Hamza b. Zuhayr Hafiz, 4 vols. ( Jeddah, Saudi Arabia: Sharikat al-Madina al-Munawwara lil-Tibaʿ wa-l-Nashr, 1993). Hourani, George F. Islamic Rationalism: The Ethics of ʿAbd al-Jabba¯ r (Oxford: Clarendon Press, 1971). Ibn ʿAshur, Muhammad al-Tahir. Maqasid al-Shariʿah al-Islamiyya (Tunis: al-Sharika al-Tunisiyya li-lTawziʿ, 1978). Ibn Ashur. Treatise on Maqasid al-Shariʿa, trans. (from Arabic) and annot. Mohamed El-Tahir El-Mesawi (London: The International Institute of Islamic Thought, 1427/2006). Jackson, Sherman A. ‘Literalism, Empiricism, and Induction: Apprehending and Concretizing Islamic Law’s Maqa¯․sid al-Sharîʾah [sic] in the Modern World’. Michigan State Law Review (2006): 1469–86. Khamlishi, Ahmad al-. Wijhat Nazar, 4 vols (Rabat: Dar Nashr al-Maʿrifa, 1998 (vol. 2), 2000 (vol. 3), 2002 (vol. 4)). Kızılkaya, Necmettin. ‘An Outline of the Historical Evolution of Qawa¯ʿid Literature in Islamic Law’. American Journal of Islamic Social Sciences 28 (2011): 76–105. Opwis, Felicitas. ‘Mas․lah․a in Contemporary Islamic Legal Theory’. Islamic Law and Society 12 (2005): 183–223. Opwis, Felicitas. Mas․lah․a and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century (Leiden: Brill, 2010). Opwis, Felicitas. ‘New Trends in Islamic Legal Theory: Maqa¯․sid al-Sharı¯ʿa as a New Source of Law?’ Die Welt des Islams 57 (2017): 7–32. Qaradawi, Yusuf al-. Dirasa fi Fiqh Maqasid al-Shariʿah: bayna al-maqasid al-kulliyya wa-l-nusus al-juzʾiyya (Cairo: Dar al-Shuruq, 1427/2006). Qarafi, Ahmad b. Idris al-. Sharh Tanqih al-Fusul fi Ikhtisar al-Mahsul fi al-Usul (Cairo: Matbaʿat Kulliyyat al-Sharifa, 1381/1961). Razi, Fakhr al-Din Muhammad b. ʿUmar al-. Al-Mahsul fi ʿIlm Usul al-Fiqh, 2 vols (Beirut: Dar al-­ Kutub al-ʿIlmiyya, 1408/1988). Shatibi, Ibrahim b. Musa al-. Al-Muwafaqat fi Usul al-Shariʿah. Ed. ʿAbdullah Diraz, 4 vols (Cairo: Dar al-Fikr al-ʿArabi, n.d.).

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12 Legal pluralism in Sunni Islamic law The causes and functions of juristic disagreement Ahmed Fekry Ibrahim

Introduction The term used to describe legal pluralism in the primary sources of Islamic law is ikhtila¯ f, which means ‘disagreement’ and usually refers to disagreements among jurists over points of substantive law. In Twelver Shiʿism, juristic disagreements are permitted in the absence of the Imam, when religious authorities may legitimately hold different positions on points of law. In Sunni Islamic law, the majority of jurists came to accept legal disagreements (with a few exceptions, as we shall see below) as an expression and manifestation of legal pluralism, so long as the doctrine in question is not one over which scholars agreed at any given time, constituting ‘consensus’ (ijma¯ʿ), a source of Sunni Islamic law, albeit not in Twelver Shiʿism, the second largest Islamic sect. Consensus assumes that once a given generation unanimously agrees on a legal doctrine, this consensus forecloses future hermeneutic freedom to re-­interpret the sources. Yet despite the dominance of the doctrine of consensus, pluralism was still maintained in some cases through hermeneutic manoeuvres or simply because some, albeit few, jurists did not accept the validity of consensus as a source of law. Consensus was one way to create unity out of legal hermeneutic and historical circumstances so flexible and diffused as to allow for unlimited legal pluralism in theory. In this chapter, I focus on Sunni Islamic legal pluralism, a phenomenon that resulted at least partly from the history of Islam and the relationship between jurists and the state. In the early Islamic period, a tension existed between the state and jurists due to the trauma of the early Muslim civil wars in 656–661 and 680–692, which led to the accession to power of rulers who were considered illegitimate or at least impious by many scholars. In the Sunni ­Islamic imaginary, the Umayyad dynasty did not live up to the heritage of the Prophet (d. 632) or his first four successors, when temporal and religious authority was less clearly bifurcated. As early as the eighth and ninth centuries under the Abbasids, there was hostility among many scholars to state intervention in matters of law and theology, as evidenced by the jurists’ position on Abbasid attempts to centralize Islamic law and remove legal pluralism, as well as on the Qurʾan Inquisition of 833–848.1 The trauma of the Inquisition in the collective Islamic imaginary and the failure of the Abbasid state to impose one theological 208

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doctrine in a manner similar to Byzantine interventions in Christological debates would make it hard for future Islamic states to make claims to theological or legal orthodoxy. These events would help give rise to a unique theory on the relationship between the state and religious scholars in Sunni Islam. During the 11th and 12th centuries, the relationship between state and scholars would incrementally grow into a systematic theory proffering a division of labour, whereby the state was able to legislate in limited domains that did not in theory contradict the jurisprudence of the jurists, but it was the state that enforced the law of the jurists, from whence it derived its own legitimacy.2 Certainly legal pluralism (a function of juristic disagreement) pre-dated the emergence of this theory. What this theory did was enable the legal pluralism that existed as early as the second half of the seventh century – only decades after the early I­ slamic conquests of the 630s in the Near East and long before the articulation of the theory of Islamic g­ overnance – to exist without sweeping state intervention. It thus fell upon jurists to determine the content of Islamic law. Absent a rigid, clerical hierarchy that could impose one uniform code across pre-modern Muslim societies, jurists balanced the requirements of justice and legal predictability with the epistemic nature of Islamic legal authority, historically drawn from the individual jurist’s personal hermeneutic engagement with the sources, known as ijtiha¯ d. This unique politico-legal context gave rise to potentially unlimited legal pluralism and uncertainty. Aware of the impracticability of extreme legal pluralism, and as a result of the florescence of Islamic jurisprudence, jurists gradually limited interpretive freedom (ijtiha¯ d) over the course of the 11th to the 13th centuries by arguing for the dearth of legal skills and scholars capable of wide interpretive freedom.3 Despite the jurists’ efforts to rein in legal pluralism through the limits they placed on ijtiha¯ d, Sunni Islamic law retained much of its pluralism in the four extant schools, in addition to intra-school doctrinal pluralism. This article addresses legal pluralism in Sunni Islamic law by exploring its causes as understood by both modern Western historians and pre-modern Islamic sources, the debates about the validity of juristic disagreements among legal theorists, and disagreements over the utilization of legal pluralism to achieve social and economic objectives. In addition to a discussion of juristic disagreements in legal theory, I also address the different approaches to juristic disagreements in substantive legal manuals, a topic that is intimately related to the legal theoretical debate about the validity of juristic disagreements and the ontology of truth. After examining the causes of juristic disagreements and whether or not they are justified from the standpoint of the ontology of truth, I discuss the utilization of legal pluralism in pre-modern Islamic courts. Before we discuss the causes of legal pluralism, a word about the terms I use to refer to legal plurality is in order. Legal pluralism suggests the equal validity of different laws that are applicable in the same geographical space, whereas juristic disagreements do not necessarily assume an equal normative weight to such disagreements. In other words, juristic disagreements could either be rejected as non-normative, simply non-legal or such disagreements could be accepted as equally valid articulations of the law. What I argue in this essay is that juristic disagreements were debated and conceptualized by the majority of pre-modern Muslim jurists as equally valid articulations of the law (in the sense of legal pluralism) since there was no central authority to pronounce one view as the law and reject all others. Differently put, juristic disagreements were translated through epistemological debates into a strong ethos of legal pluralism, as we shall see below, rendering the two terms synonymous when describing the views of the majority of Sunni jurists. Only a small minority of jurists rejected legal pluralism outright, but as we shall see below, this position died out early on in Islamic legal theory. 209

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1  Causes of legal pluralism The earliest sources of Islamic law (eighth and ninth centuries) attribute juristic disagreements to the hermeneutic activities of jurists and those of earlier generations, as well as to the practice of the Prophet and early Companions as preserved in reports passed down from one generation to another (later known as hadith). While emphasizing the role of the personal reasoning (ijtiha¯ d) of jurists, as evidenced by the discussions of disagreements among specific legal scholars, early Muslim jurists also cited regional variations that resulted from the dominance of specific doctrines in certain regions, due to the dispersion of Companions carrying the Prophet’s legacy to the far corners of the newly conquered lands in the seventh century. It was the dispersion of the Prophet’s legacy, as well as the hermeneutic engagement of jurists with this legacy, that led to juristic disagreements, rather than external Byzantine or Sasanian influences, for instance. According to Ibn Abi Hatim al-Razi (d. ca. 327/938–9), Malik reportedly abandoned a prior doctrine he had held after learning a Prophetic tradition reported through the Egyptian al-Layth b. Saʿd (d. 175/791), hitherto unknown to him. According to Ahmad b. al-Husayn al-Bayhaqi (d. 458/1066), al-Shafiʿi told Ibn Hanbal that the latter, along with other hadith scholars, were more knowledgeable about hadith than al-Shafiʿi and asked that they inform him of sound Prophetic reports whether they be Basran, Kufan or Syrian, so that he can incorporate them in his legal doctrines. This perception that the early differences among the schools were partially caused by accessibility to various iterations of the memory of the Prophet as retained in the hadith literature would continue throughout Islamic history. According to the 18th-century subcontinent scholar Shah Walyullah al-­ Dihlawi (d. 1176/1762), one of the reasons for juristic disagreement is that some sound Prophetic reports had not reached the Successor generation, so they had to rely on their personal reasoning (ijtiha¯ d), or follow different Companions.4 Early Islamic legal sources often assume a level of geographical unity as they make references to the views of Kufans, Basrans, Meccans, Syrians, Medinans or the Iraqis. Thus, Ibn Hanbal (d. 241/855) was reported on the authority of his son ʿAbdullah to have said that if someone were to follow the people of Kufa on date wine, the people of Medina on music and the people of Mecca on mutʿa marriage, he or she would be a sinner.5 This assumes that certain regions retained unique positions on points of law. These references led the 20th-­ century Islamic legal historian Joseph Schacht to assume a geographical nature to what he calls the ‘ancient schools’.6 Owing to Schacht’s view that the Prophetic tradition literature was largely fabricated to support various legal positions, he attributed juristic disagreements to regional differences. These differences resulted from the interaction between Islamic law and the pre-Islamic legal traditions of Arabia, new modes of administration in lands under Islamic rule, borrowing from neighboring civilizations such as the Byzantine Empire and scholarly differences resulting from divergent modes of interpretation.7 Although Schacht agrees with Muslim jurists on the presence of geographical trends, the latter emphasized the hermeneutic dimension, which was restricted to the scholarly community, over the socio-­ cultural, which was shaped by the more profane concerns of state and society. The causes of juristic disagreements in Western historiography were thus attributed to a number of factors, including divergent pre-Islamic regional cultures and early Islamic administrative and social practices, that is, the interaction of state and society, as well as hermeneutic differences resulting from scholarly disagreements over the interpretation of the sources. The thesis that some differences were geographical in nature, whether to be found in early Islamic sources or in Western historiography, suggests that there were two types of juristic disagreements in the formative period of the ‘ancient schools’ – intra-regional 210

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disagreements and inter-regional disagreements. Intra-regional differences resulted from hermeneutic considerations and the personal authority of certain jurists, whereas at least some of the inter-regional differences resulted from administrative, social and legal structures and practices pre-dating Islam. Wael Hallaq, emphasizing the hermeneutic through the ‘personal’ authority of various jurists in different regions in the formative period, retorted that differences were in fact not regional but personal, thus implicitly privileging the hermeneutic, and therefore Islamic, over the regional, that is, the extra-Islamic. He challenges the presence of any doctrinal or methodological similarities within any region to justify Schacht’s use of the term ‘ancient schools’.8 Hallaq uses the diversity within each region – which Schacht does not at all deny, as he acknowledges, for instance, ‘the variety of doctrines within the great geographical divisions’,9 – as evidence that there were never regional schools. One could, pace Hallaq, find a common core of doctrines as in the case of the practice (ʿamal) of the people of Medina as described by Malik, where most jurists of Medina agreed (a regional consensus of sorts) on many points of law represented by the practice of the community without ruling out the existence of internal doctrinal differences on other legal questions. Similarly, one could also glean a certain methodology attributed to Abu Hanifa and his companions in Kufa in the work of his student al-Shaybani (d. 189/805), in which the latter claims that Abu Hanifa and his companions engaged in systematization through the use of analogical reasoning and reports (of the Prophet and Companions). In fact, according to al-Shaybani, these elements are the reason that people followed the opinions of Abu Hanifa and his companions over those of the earlier generation of jurists such as Ibrahim al-Nakhaʿi (d. 96/715) and al-Hasan al-Basri (d. 110/728). In other words, Abu Hanifa and his companions (who represent the early ‘regional’ schools) had a leading methodology that made their legal opinions attractive enough to be followed.10 Be that as it may, Hallaq’s critique should encourage us to think of geographical trends of juristic disagreements, rather than fully developed schools at this early stage, with the caveat that the geographical and the personal were not mutually exclusive. If we subscribe to the thesis that there was a core of doctrines that represented the practice of some regions as well as disagreements within these regions brought about by hermeneutic differences, then judges must have followed this common core or the proto-consensus of the city on some issues and exercised their own legal reasoning (ijtiha¯ d) on points of disagreement. This picture tallies well with the practice of Medina in Malik’s (d. 179/795) methodology.11 These geographical trends explain the jurists’ use of terms to describe the legal orientations of the Basrans, Kufans or Medinans, despite their full awareness of the independent voices of different regions on many points of law. As representatives of the schools of Kufa and Medina, Abu Hanifa (d. 150/767) and Malik were important voices among many others of their cities. By the ninth century, their authority would be singled out as exceptional through a process of reimagining and authority construction designed to manage some of the regional doctrinal and methodological differences by appealing to the unique personal authority of these jurists.12 What is at stake in this debate over the development of the so-called ‘ancient schools’ is that emphasizing the geographical lends credence to Schacht’s general assumption of a significant influence of Byzantine and Sassanid legal cultures on Islamic law, while emphasizing the personal situates much of the doctrine of Islamic law more safely within an Islamic hermeneutic milieu. However, neither side of the debate has claimed that the two causes of juristic disagreements, that is the hermeneutic and regional, are mutually exclusive. Few historians of Islamic law would dispute the claim that some of the differences resulted from 211

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local practices pre-dating Islam, while others were the fruit of the intellectual and legal disputations of the great centres of Islamic learning in the first two centuries after Prophet Muhammad’s death (d. 11/632), such as Kufa, Basra, Damascus, Baghdad and Fustat. This reality of juristic disagreements led to a debate about the ontology of legal truth, with some legal theorists justifying or narrowing areas of legal pluralism.

2  Debates about the validity of legal pluralism in legal theory The earliest sources of Islamic law show a contested view toward juristic disagreement and its concomitant legal pluralism. To al-Shafiʿi (d. 204/820), such pluralism is to be expected as part of the process of ijtiha¯ d, exerting one’s effort and reflection to reach a legal rule. By its very definition, ijtiha¯ d cannot be based on apodictic evidence because if there was an unambiguous textual source, there would be no need for either effort or reflection. Ijtiha¯ d only deals with cases in which the proof texts are not clear, and therefore al-Shafiʿi arguably held the view that knowledge of whether or not the result of the mujtahid’s (the person who exercises ijtiha¯ d) reasoning on a point of law reflects the truth in the mind of God is not accessible to jurists with any level of certainty, since the realm of ijtiha¯ d is necessarily that of probability.13 In the late eighth and ninth centuries, a group of Muʿtazilis did not allow for any probability in law, presuming that legal evidence should always be apodictic. These proponents of legal certitude included the Zahiris, Shiʿis and Muʿtazili theologians such as al-Asamm (d. 202/816) and al-Marisi (d. 218/833). In Sunni Islamic law, this group, which rejected legal pluralism outright, eventually died out. Almost simultaneously, traditionalists, who put forward an agenda centred on purifying Islamic law from non-Islamic influences by focusing on Prophetic reports, criticized juristic disagreements. In their estimation, such disagreements were largely the result of the extensive utilization of ‘personal reasoning’ (raʾy), a form of ‘practical reason’ used to deal with questions unaddressed by the Qurʾan. The traditionalists, who were fallibilists (more on this in the following paragraphs), argued that if jurists abstained from using non-textual sources such as human reasoning, including analogical reasoning, there would be few juristic disagreements and therefore less space for legal pluralism.14 After al-Shafiʿi’s time, jurists operating in the tenth to the thirteenth centuries, drew a distinction between rules whose proofs are apodictic, for which there is only one correct mujtahid and one truth, and rules that are based on non-apodictic evidence, wherein there was much disagreement among legal theorists. In the absence of apodictic evidence, is there one  truth or multiple truths? In other words, is every mujtahid correct in whatever legal rule she or her reaches through his or her legal reasoning if the textual sources are not clear? One group of legal theorists, the infallibilists, assumed that in this case, God has made multiple truths available corresponding to the different views of the mujtahids, and therefore every one of them has reached one of God’s truths. This position entailed accepting all juristic disagreements, so long as the evidence is non-apodictic. This view of juristic disagreement represented a strong valorization of legal pluralism. Another group were fallibilists who assumed that there is only one truth in the mind of God, and therefore only one mujtahid is correct in her or his ijtiha¯ d. In other words, each mujtahid can increase the probability of his or her ijtiha¯ d corresponding to the one Truth in the mind of God by exerting more effort in trying to discover this truth.15 Within the fallibilist position, there were different approaches to the scope of legal issues that are unknowable. For some, the scope of legal issues over which there is only probable 212

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knowledge was expanded to include practically all actual areas of disagreement among the four Sunni schools. In other words, even though there is only one truth in the mind of God, this truth cannot be known with certainty to us humans, and therefore, this position closely resembles the multiplicity of truth doctrine in that it valorizes legal pluralism, equating it with actual juristic disagreements. Other fallibilists narrowed the scope of such points of law that are unknowable to a minimum due to their legal methodology, which assumed that many of the opinions of jurists were simply incorrect. According to them, truth was indeed knowable in the majority of cases of actual disagreement, opining that many juristic disagreements are not justified. This camp includes jurists such as the Zahiri Ibn Hazm (d. 456/1063), Ibn ʿAbd al-Barr (d. 463/1071), Ibn Taymiyya (d. 728/1328) and Ibn Qayyim al-Jawziyya (d. 751/1350). According to some iterations of this position, every Muslim jurist and even layperson should aspire to know this truth. In fact, Ibn Taymiyya explicitly criticized jurists who equated the unknowability of truth with actual juristic disagreements, reasoning that some cases of juristic disagreement were not justified since there was clear evidence supporting one position. Under this conceptualization, only a limited number of existing juristic disagreements carry normative weight, thus limiting, albeit not foreclosing, legal pluralism. By drastically narrowing the scope of probability or unknowability, Ibn Taymiyya set himself apart from the dominant practice of his time. The dominant position of Sunnism of the 13th century onwards was that while there is only one correct view in the mind of God, humans cannot know it with certainty so long as the evidence is not apodictic. Actual juristic disagreements themselves were used as an indication that the evidence is not apodictic, and therefore this doctrine justified existing juristic disagreements, equating them with normative legal pluralism. In the course of the systematization of the debate over the ontology of legal truth in the tenth to the 13th centuries – a process partly driven by the dominance of Ashʿari theology – al-Shafiʿi’s heritage was claimed by fallibilists and infalliblists, with both sides projecting their own contradictory positions onto their eponym. By contrast, most jurists counted Abu Hanifa, Abu Yusuf and al-Shaybani among the infalliblists.16

3  Functions of legal pluralism Despite the acceptance of juristic disagreements among the earliest jurists as valid articulations of the law, this legal pluralism was sometimes a source of anxiety owing to its potential misuse. As early as the ninth century, jurists realized that while disagreements may result from valid hermeneutic engagement with the sources, the laity were prone to manipulate them to achieve worldly gains.17 This tension led to a spectrum of views on how the community should manage these disagreements. Unlike the proponents of legal certitude (e.g. the early Muʿtazilis of Baghdad), both the fallibilists and the infallibilists accommodated legal pluralism, though the scope depended on the different orientations within these positions. The infallibilists’ position offered the strongest justification of legal pluralism, while fallibilist scholars such as Ibn Taymiyya allowed for narrower areas of probability and therefore fewer acceptable cases of legal pluralism. Like Ibn Taymiyya, earlier traditionalists such as Ibn Hanbal had an aversion to juristic disagreements not only on account of their source: whimsical non-textual ‘opinion’, but also owing to the profane functions that they could serve.18 Juristic disagreements, in their estimation, were used by both jurists and the laity to circumvent the divine law when people picked and chose different doctrines that fit their whims. According to them, this was a sign of corruption, a pragmatism that is unbecoming of the divine law. 213

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Certainly, al-Shafiʿis’ infallibilism does not necessarily entail the permission of the laity’s picking and choosing of juristic views pragmatically, yet it is a precondition for the acceptance of legal pluralism and its concomitant pragmatic functions. By contrast, the view that completely rejects probability in legal matters, attributed to early Muʿtazilis such as Bishr al-Marisi and al-Asamm, forecloses such pluralism and eclecticism. Although infallibilism and certain versions of fallibilism may act as prerequisites for the acceptance of pragmatic forum selection (i.e., choosing between different schools), the question of whether Muslims could pick and choose from the range of juristic disagreements a view that suits their secular needs offers no clear-cut correspondence to a jurist’s position on the question of the multiplicity or unity of truth. An infallibilist like alGhazali (d. 505/1111) did not allow pragmatic eclecticism,19 even though his position that there are multiple truths lends itself readily to permitting the laity to pick and choose pragmatically. Another position that is conducive to the permission of pragmatic eclecticism is the fallibilist position that there is only one truth that cannot be known with certainty and that the realm of unknowability corresponds to actual legal disagreements in the Sunni schools. All the supporters of pragmatic eclecticism came from these two camps, while most opponents came from the fallibilist position that narrowed the scope of unknowability and viewed most cases of legal disagreements negatively. Those who were minimalist in defining the scope of unknowability discouraged people from choosing opinions based on what suits their needs, obligating all jurists, and sometimes even the laity, to exercise ‘preponderance’ (tarjı¯․h) in juristic disagreements to weed out the ‘wrong’ views. Despite these patterns, the utilization of legal pluralism to accommodate profane social needs through forum selection does not map perfectly onto the fallibilist–infallibilist distinction. During the time of al-Shafiʿi, and despite his arguably infallibilist position, he, along with his contemporaries, was opposed to the laity’s pragmatic choices of forum. However, the evidence points to the practice of pragmatic eclecticism as early as the ninth century from the polemical discourse of traditionalists who described such pragmatism as a sign of sin or even disbelief. Thus, the utilization of regional differences in the seventh to the ninth centuries between Medina, Kufa, Basra, Damascus and Fustat to achieve pragmatic objectives was soundly rejected by jurists with no minority position that one can reconstruct from the available sources. We can call this position the formalist approach, as it relies on the process of formal reasoning to weigh different juristic views against one another (tarjı¯․h),20 using legal hermeneutics to determine which rule is the best articulation of the divine will. These formalists accepted disagreements on points of law in varying degrees, so long as they resulted from following the proper rules of legal hermeneutics. According to these formalists, choices could only be driven by methodological, hermeneutic considerations, rather than a focus on the legal result. In a word, the formalists emphasized the process of hermeneutic engagement itself regardless of the resulting disagreements, so long as the choice is not driven by a pragmatic, result-based approach. The competing position was a pragmatic approach 21 that was concerned not with the process of formal reasoning but with the legal result itself. In the formative period of Islamic law, the formalist approach dominated in juristic discourse, albeit not in practice as the polemics themselves suggest. It was not until the 13th century that the dominant juristic discourse shifted to the pragmatic approach, partly to justify existing court practices.22 Having discussed the causes and functions of juristic disagreements, in what follows I examine some examples of how these theoretical approaches (drawn from tomes of legal theory) played out in manuals of comparative law and in actual court practice. 214

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4  Approaches to legal pluralism in substantive legal discourse 4.1  Fallibilist formalism: the preponderance (tarjı‐h∙) approach By way of illustration, I will mention two examples of fallibilist scholars who encouraged the formalist exercise of preponderance albeit for different objectives, namely Ibn Hazm (d. 456/1063) and Ibn Rushd (d. 595/1198). Ibn Hazm, similar to traditionalists such as Ibn Hanbal or Ibn Taymiyya, was a fallibilist who narrowed the scope of acceptable juristic disagreements. His position was shaped by his views on taqlı¯d, ijtiha¯ d and the role of the layperson in law making. Ibn Hazm explains why he wrote his magnum opus al-Muhalla by saying that his intention was to explain the causes of disagreement among jurists with the aim of ‘correcting’ (tash․¯ı․h) them in order to reach the truth (al-h․aqq). Being a literalist (Zahiri), he in theory only accepted the Qurʾan and the hadith as valid sources of law. Unlike many traditionalists, one of Ibn Hazm’s objectives was to demonstrate the invalidity of analogical reasoning as a source of law. Explaining his approach to the hadith literature, Ibn Hazm stated that he only used a sound report as evidence for a given position and only contradicted a report when it was weak or abrogated.23 Ibn Hazm’s methodology entails reproducing the evidence in order to ‘verify’ that a given view is indeed based on sound textual sources as opposed to the whims of jurists. It is essential that any reader, whether a layperson or a jurist, is able to reproduce the process of verification (the reproduction of textual evidence), which, according to Ibn Hazm and other like-minded jurists, was required of every Muslim if they were to protect themselves from the snare of taqlı¯d (blind following). In Ibn Hazm’s anti-clericalism, even a layperson is capable of reading the textual proofs supporting legal rulings or at least she or he can have someone read these textual proofs to them to ascertain that the rulings are indeed God’s law. On substantive legal issues, Ibn Hazm placed the evidence before the reader and engaged in both hermeneutic analysis and hadith criticism to counter the views of his opponents. The objective of his text is twofold: to provide verification to the laity, who need to exercise ittiba¯ʿ (adherence to the Qurʾan and Sunnah) rather than blindingly follow the views of jurists, and to show the invalidity of opposing positions.24 Ibn Rushd, an Andalusian polymath and a practising judge, wrote Bidayat al-Mujtahid wa-Nihayat al-Muqtasid as a comparative work of juristic disagreement designed to provide jurists with the methodological tools to understand why disagreements among jurists exist, in order to enable them to come up with juristic opinions for new cases. Some of these disagreements resulted from different analogies, conflicting Prophetic reports, or varying interpretations of the textual sources. According to him, differences of opinion are inevitable due to the nature of legal hermeneutics and the different ways in which analogical reasoning can operate. Despite his general following of the Maliki school, Ibn Rushd occasionally exercised preponderance among the different views, privileging Hanafi over Maliki positions on some points of law.25 In other instances, he devised new ijtiha¯ d, going against the available corpus of juristic disagreements.26 Ibn Rushd walked the reader through these varying hermeneutic modes in order to assist her or him in exercising ijtiha¯ d on new cases. Unlike Ibn Hazm, although Ibn Rushd disagreed with some jurists and assumed that his own ijtiha¯ d is closer in terms of probability to the truth, he did not seek to invalidate these disagreements. In other words, Ibn Rushd’s fallibilism accepts a wider range of disagreements than Ibn Hazm’s. Despite their varying emphases on the range of acceptable disagreements, both approaches agree that the exercise of preponderance, that is, a choice based on evidence rather than the social function of the legal result, should drive comparative jurisprudence. 215

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4.2  The pragmatic approach The approach of Ibn Hazm and Ibn Rushd contrasts sharply with that of the 14th-century Shafiʿi scholar ʿAbd al-Rahman al-Dimashqi, a practising judge in the Levant under the Mamluk sultanate. Al-Dimashqi was concerned with the legal result of juristic disagreements, rather than determining preponderance (tarjı¯․h) based on an assessment of the evidence supporting various juristic positions. In 780/1378, al-Dimashqi wrote a book on juristic disagreements entitled Rahmat al-Umma fi Ikhtilaf al-Aʾimma (Differences among the Imams are a Blessing for the Community), designed to enable students to learn only the doctrines of the schools without any need for legal reasoning. The objective of the text was not to point out the invalidity of other opinions nor to convince the reader to follow the author’s opinion as the only correct opinion, as was Ibn Hazm’s objective; nor was it to help jurists exercise ijtiha¯ d in new situations, as was the case with Ibn Rushd. It was rather meant to assist students and judges in navigating legal pluralism so that they may know the substantive law of the four schools to be able to use this legal pluralism pragmatically to serve people’s various needs. This would also be the objective of ʿAbd al-Wahhab al-Shaʿrani (d. 973/1565), except that he would develop a theory to justify such pragmatism. According to al-Shaʿrani’s Kashf al-Ghumma, legal pluralism was divinely ordained, for God created two levels of the law: one is strict and the other lenient. In order to convince his opponents, the formalists, that all the views of the four Sunni schools can be selected by laypeople pragmatically, he proceeded to show that all these opinions were based on valid evidence, including sound traditions.27 The objective of al-Shaʿrani’s work was the exact opposite of that of Ibn Hazm, for the latter sought to show the invalidity of many of the views of jurists in the four Sunni schools. Al-Shaʿrani explained in his Mizan that God created legal disagreement in order to address the diversity of people with varying degrees of moral and physical strength. Laypeople, for instance, unlike elite scholars were, according to this typology, in a constant state of moral weakness and, therefore, they were addressed by God with the less stringent rulings. Following his teacher, al-Suyuti (d. 911/1505), al-Shaʿrani was an infalliblist, a minority position among jurists in the Mamluk and Ottoman periods. The objective of pragmatists, such as al-Dimashqi and al-Shaʿrani, was to facilitate certain court transactions.28 These two approaches to juristic disagreement competed in juristic discourse throughout the Mamluk and Ottoman periods, but the pragmatic approach dominated court practice. Despite its dominance, one can also see examples of the formalist approach in Ottoman Egyptian courts on the question of child custody, for instance.29 In the modern period, jurists and legislators in colonial and post-colonial Muslim nation-states would rely on doctrinal eclecticism within the legal pluralism of Sunnism (known as takhayyur and talfı¯q) to accommodate new conceptions of the family, childhood, womanhood and human rights.30

Conclusion The unique relationship between the state and religious scholars in Islam, born of the historical events of the early centuries of Islam, was one of tension and a division of labour, limiting the state’s ability to dictate the law top-down, much less centralize it in such a way as to remove legal pluralism. Jurists were in theory responsible for developing the law in isolation from the workings of the state, while the state developed administrative and criminal laws that were not addressed by jurists. The lack of a rigid hierarchy of religious authority in Sunni Islam and the epistemic nature of this authority meant that jurists could not completely supplant legal pluralism, despite their efforts to create a more predictable and efficient 216

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legal system. These efforts included the jurists’ placement of limits on the interpretive freedom of individual jurists over the course of the 11th to the 13th centuries by arguing for the dearth of skilled jurists in their times and privileging the collective interpretations of the four Sunni schools over individual hermeneutic engagements. Certainly, this was a process of shifting the emphasis from the individual to the group, rather than a complete annihilation of the former, in order to balance the need for legal predictability – which was needed due to the extreme legal pluralism characteristic of the first three centuries of Islam – with individual epistemic authority. The resulting system retained much of its pluralism in the four Sunni schools, as well as intra-school doctrinal differences and arguments. After laying out the historical institutional underpinnings of legal pluralism, I discussed causes of juristic disagreements from the perspective of both pre-modern Muslim jurists and modern Western historians. Both sides agreed, despite Hallaq’s critique, that geographical differences existed in the early period of Islamic law, but each side emphasized different causes. Muslim scholars of the pre-modern era often argued that such differences were mostly the result of hermeneutic engagement with the textual sources or due to the dispersion of Companions carrying the legacy of the Prophet after the Islamic conquests of the Near East. Many Western scholars, while accepting differences resulting from hermeneutic and methodological geographical differences, placed more emphasis on the pre-Islamic profane practices of Byzantine and Sassanid societies and administration. The reality of juristic differences gave rise to an important legal theoretical debate about whether or not legal rules should be based on probable or apodictic proofs. In the late eighth and ninth centuries, a group of Muʿtazilis supported legal certitude, rejecting legal pluralism in law as a consequence of their rejection of the possibility of basing laws on probable proofs. This group died out in Sunni legal theory. By the tenth to the 13th centuries, most legal theorists assumed that some legal rules are based on apodictic proofs, in which case they contended that no disagreement is permitted. They disagreed, however, over whether in the case of legal rules based on probable proofs, there is one truth in the mind of God (fallibilists) or as many truths as there are legal disagreements (infallibilists). The infallibilist position was the most conducive to accepting the manifestations of legal pluralism as equally valid articulations of the divine law. Within the fallibilist position, there were two different approaches: one assumed much more juristic agency in discovering this truth through the examination of evidence and relying on the textual sources, rather than human reasoning. The other fallibilist approach assumed that even though there is only one truth in the mind of God, its knowledge is not accessible to us, and therefore from our human perspective, all existing juristic disagreements are equally valid since we have no way of adjudicating among these options. This approach dominated Sunnism by the 13th century. Another question that arises from the issue of juristic disagreements is whether or not they can be utilized pragmatically to accommodate changing social and individual needs. Despite the practice of pragmatic eclecticism within Sunnism’s legal pluralism, some jurists followed a formalist approach whereby they considered hermeneutic engagement as the main adjudicator on juristic disagreements. Others were legal pragmatists, allowing the legal result itself to drive the choice of a given juristic view from among the four Sunni schools. While the formalist approach dominated juristic discourse until the 13th century, the pragmatic approach came to compete with formalism in juristic discourse thereafter. Yet in practice, pragmatism exercised complete dominance over Mamluk and Ottoman courts in the medieval and early modern periods. I have given examples of both the formalist and pragmatic approaches in the works of renowned scholars such as Ibn Hazm, Ibn Rushd, ʿAbd al-Rahman al-Dimashqi and al-Shaʿrani. The fallibilist al-Shaʿrani developed an ingenious theory to 217

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justify forum and doctrinal selection, a practice that was taking place widely in the courts of his time. This evolution of Sunni legal pluralism and the debates about pragmatic forum and doctrinal selection would be utilized in the modern codification of Islamic law, where the modern nation state would utilize this traditional tool in order to create Islamic statutes that are compatible with new discourses of family, womanhood, childhood and human rights.

Notes 1 Dimitri Gutas, Greek Thought, Arabic Culture: The Graeco-Arabic Translation Movement in Baghdad and Early ʿAbba¯ sid Society (2nd–4th/8th–10th Centuries) (London and New York: Routledge, 1998), 75–83; Ahmed Fekry Ibrahim, Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse, NY: Syracuse University Press, 2015), 35–36. 2 ʿAli ibn Muhammad Mawardi, The Ordinances of Government: A Translation of al-Ah․ka¯ m al-­Sult․a¯ niyya wʼ al-Wila¯ ya¯ t al-Dı¯niyya, trans. Wafaa Hassan Wahba (Reading: Garnet Publishing, 1996). 3 Ahmed Fekry Ibrahim, ‘Rethinking the Taqlı¯d Hegemony: An Institutional, Longue-Durée Approach’, Journal of the American Oriental Society 136:4 (2016): 808–12. 4 Ibn Abi Hatim al-Razi, Al-Jarh wa-l-Taʿdil, ed. ʿAbd al-Rahman b. Yahya al-Yamani (Beirut: Dar al-Kutub al-ʿIlmiyya, 1953), 1:31–2; Ahmad b. al-Husayn al-Bayhaqi, Manaqib al-Shafiʿi li-l-­ Bayhaqi, ed. al-Sayyid Ahmad Saqr (Cairo: Dar al-Turath, 1970), 1:528; Shah Wallyullah Dehlawi, Al-Insaf fi Bayan Asbab al-Ikhtilaf, ed. ʿAbd al-Fattah Abu Ghudda, 3rd edn (Beirut: Dar al-Nafaʾis, 1986), 42–4; Jonathan Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oxford: Oneworld, 2009), 27–9. 5 Ahmad b. Hanbal, Masaʾil al-Imam Ahmad Ibn Hanbal Riwayatu Ibnihi ʿAbdullah Ibn Ahmad, ed. Zuhayr al-Shawish (Beirut: al-Maktab al-Islami, 1981), 449; Abu Muhammad al-Hasan b. ʿAli b. Khalaf al-Barbahari, Sharh al-Sunna, ed. ʿAbd al-Rahman b. Ahmad al-Jumayzi (Riyadh: Dar al-Minhaj, 2005), 116. 6 Joseph Schacht, An Introduction to Islamic Law (Oxford and New York: Clarendon Press, 1964), 28–36; Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1967),  7–10; Noel James Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1962), 36–52. 7 Schacht, An Introduction to Islamic Law, 19–22; Coulson, A History of Islamic Law, 27–8, 50–2; Schacht, The Origins of Muhammadan Jurisprudence, 6–10. 8 Schacht, An Introduction to Islamic Law; Schacht, The Origins of Muhammadan Jurisprudence; Christopher Melchert, The Formation of the Sunnı¯ Schools of Law, 9th–10th Centuries C.E. (Leiden and Boston, MA: Brill, 1997), 32–47; Wael B. Hallaq, ‘From Regional to Personal Schools of Law? A Reevaluation’, Islamic Law and Society 8:1 (2001): 1–26; Jonathan E. Brockopp, ‘Competing Theories of Authority in Early Ma¯ likı¯ Texts’, in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden and Boston, MA: Brill, 2002), 3–22; Jonathan E. Brockopp, Early Ma¯ likı¯ Law: Ibn ʿAbd Al-H ․ akam and His Major Compendium of Jurisprudence (Leiden and Boston, MA: Brill, 2000); Jonathan E. Brockopp, ‘Interpreting Material Evidence: Religion at the “Origins of Islam”’, History of Religions 55:2 (2015): 121–47; Patricia Crone, Roman, Provincial, and Islamic Law: The Origins of the Islamic Patronate (Cambridge and New York: Cambridge University Press, 1987). 9 Joseph Schacht, The Origins of Muhammadan Jurisprudence, 7. 10 Ahmed Fekry Ibrahim, ‘Rethinking the Taqlı¯d-Ijtiha¯ d Dichotomy: A Conceptual-Historical Approach’, Journal of the American Oriental Society 136:2 (2016): 290–1; Muhammad b. al-Hasan al-Shaybani, Al-Asl, ed. Mehmet Boynukalın (Beirut: Dar Ibn Hazm, 2012), 12:102. 11 Yasin Dutton, The Origins of Islamic Law: The Qurʾan, the Muwat․․taʾ and Madinan ʿAmal (Richmond, Surrey: Curzon Press, 1999). 12 For an excellent analysis of the construction of authority that accompanied the formation of schools, see Wael B. Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge: ­Cambridge ­University Press, 2001). 13 Muhammad b. Idris al-Shafiʿi, Al-Risala, ed. Ahmad Muhammad Shakir (Beirut: Dar al-Kutub al-ʿIlmiyya, 1940), 2:476–505; Ahmed Fekry Ibrahim, ‘Rethinking the Taqlı¯d-Ijtiha¯ d Dichotomy: A Conceptual-Historical Approach’, Journal of the American Oriental Society 136:2 (2016): 287–8. 14 Abu Muhammad al-Hasan b. ʿAli b. Khalaf al-Barbahari, Sharh Al-Sunna, ed. ʿAbd al-Rahman b. Ahmad al-Jumayzi (Riyadh: Dar al-Minhaj, 2005), 35–40, 90–116. 218

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15 Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta, GA: Lockwood Press, 2013), 262–72; Ibrahim, Pragmatism in Islamic Law, 49–60. 16 Zysow, The Economy of Certainty, 262–72; Ibrahim, Pragmatism in Islamic Law, 49–60. 17 Ahmad b. Hanbal, Masaʾil al-Imam Ahmad Ibn Hanbal Riwayatu Ibnihi ʿAbdullah Ibn Ahmad, ed. ­Zuhayr al-Shawish (Beirut: al-Maktab al-Islami, 1981), 449; Abu Hamid al-Ghazali, Al-­Mustasfa min ʿIlm al-Usul, ed. Hamza b. Zuhayr Hafiz (Medina, Saudi Arabia: Sharikat al-Madina al-­ Munawwara li-l-Tibaʿa, 1992), 4:154 –5. 18 Ibrahim, Pragmatism in Islamic Law; Ibn Hanbal, Masaʾil al-Imam Ahmad ibn Hanbal Riwayatu Ibnihi ʿAbdullah ibn Ahmad, 449. 19 Ibrahim, Pragmatism in Islamic Law, 3. 2 0 Tarjı¯․h is a hermeneutic process by which jurists weigh the evidence relating to a legal problem to determine which opinion has the strongest evidence. The function of tarjı¯․h after the rise of schools was to reduce legal pluralism within each school and, less commonly, across school boundaries. Once a preponderant opinion is selected by the leading authorities of a given school, it becomes its collective articulation of the law both in court adjudication and fatwa-giving. On tarjı¯․h, see further Hallaq, Authority, Continuity, and Change, 147–66; Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shiha¯ b Al-Dı¯n Al-Qara¯ fı¯ (Leiden and Boston, MA: Brill, 1996), 83–9; Ulrich Rebstock, ‘A Qa¯ d․¯ı ’s Errors’, Islamic Law and Society 6:1 (1999): 1–37, at 10–11. 21 On formalism and pragmatism, see Daniel A. Farber, ‘The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law’, Vanderbilt Law Review 45 (1992): 533–59; Richard Rorty, ‘The Banality of Pragmatism and the Poetry of Justice’, Southern California Law Review 63 (1990–1989): 1811; Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986); B. Z. Tamanaha, ‘Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction’, American Journal of Jurisprudence 41:1 (1996): 315–55; Richard A. Posner, ‘Pragmatic Adjudication’, Cardozo Law Review 18 (1997–1996): 1–20; Richard A. Posner, The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990). 22 Ibrahim, Pragmatism in Islamic Law, 63–104. 23 Abu Muhammad ʿAli b. Ahmad b. Saʿid b. Hazm, Al-Muhalla, ed. Muhammad Munir Dimashqi (Cairo: Idarat al-Tibaʿa al-Muniriyya, 1933), 1:2. 24 On verification of juristic opinions, see Ibrahim, ‘Rethinking the Taqlı¯d-Ijtiha¯ d Dichotomy: A Conceptual-Historical Approach’; Ibn Hazm, Al-Muhalla, 10:235–9. 25 Muhammad b. Ahmad b. Muhammad b. Ahmad b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-­ Muqtasid, 6th edn (Beirut: Dar al-Maʿrifa, 1982), 1:1–30; Yasin Dutton, ‘The Introduction to Ibn Rushd’s Bida¯ yat al-Mujtahid’, Islamic Law and Society 1:2 (1994): 188–205. 26 Wael B. Hallaq, ‘Murder in Cordoba: Ijtiha¯ d, Ifta¯ ʾ and the Evolution of Substantive Law in Medieval Islam’, Acta Orientalia 55 (1994): 55–83; b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid, 402–3. 27 Ahmed Fekry Ibrahim, ‘The Codification Episteme in Islamic Juristic Discourse between Inertia and Change’, Islamic Law and Society 22:3 (2015): 35–48; Ahmed Fekry Ibrahim, ‘Al-Shaʿra¯ nı¯’s Response to Legal Purism: A Theory of Legal Pluralism’, Islamic Law and Society 20:1–2 (2013): 110–40; Jalal al-Din al-Suyuti, Jazil al-Mawahib fi Ikhtilaf al-Madhahib (Cairo, n.d.), al-Azhar, http://www.alazharonline.org. 28 Ibrahim, ‘The Codification Episteme’, 35–48; Ibrahim, ‘Al-Shaʿra¯ nı¯’s Response to Legal Purism’; al-Suyuti, ‘Jazil al-Mawahib fi Ikhtilaf al-Madhahib’. 29 Ahmed Fekry Ibrahim, Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century, (Cambridge, UK: Cambridge University Press, 2018). 30 Ibrahim, Pragmatism in Islamic Law, 167–229.

Selected bibliography and further reading Dutton, Yasin. The Origins of Islamic Law: The Qurʾan, the Muwat․․taʾ and Madinan ʿAmal (Richmond, Surrey: Curzon Press, 1999). Hallaq, Wael B. Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge University Press, 2001). Hallaq, Wael B. Sharı¯ʿa: Theory, Practice, Transformations (Cambridge and New York: Cambridge University Press, 2009). 219

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Ibrahim, Ahmed Fekry. Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse, NY: ­Syracuse University Press, 2015). Krawietz, Birgit. ‘Cut and Paste in Legal Rules: Designing Islamic Norms with Talfiq’. Die Welt des Islams 42:1 (2002): 3–40. Rapoport, Yossef. ‘Legal Diversity in the Age of Taqlı¯ d: The Four Chief Qa¯ d․¯ı s under the Mamluks’. Islamic Law and Society 10:2 (2003): 210–28. Schacht, Joseph. An Introduction to Islamic Law (Oxford and New York: Clarendon Press, 1964). Tucker, Judith E. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998). Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta, GA: Lockwood Press, 2013).

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13 Interpreting Islamic law through legal canons Intisar A. Rabb

Introduction: the study of legal canons (Qawa¯ʿid fiqhiyya) Islamic legal canons are interpretive principles that represent varied conceptions of Islamic law and its values, as they developed over time and space. Scholars of Islamic law – both medieval and modern – have typically defined these legal canons narrowly, as general principles governing many particular cases, and used to derive related Islamic legal rulings.1 I consider this definition narrow because it does not take into account the extratextual origins of or presuppositions behind many legal canons, or the ways in which some canons operate outside of the textual confines of Islamic law (qua legal rulings) and instead help structure its system. Moreover, I argue that, historically, Muslim judges and jurists used certain interpretive tools to construct Islamic law’s institutions – legal, judicial and governing—and to promote certain values or policies over others. In short, closer study of a more capacious understanding of Islamic law – drawing on insights from comparative theories of interpretation – shows the reach and significance of Islamic legal canons to be much broader than the existing literature suggests. Having emerged at the start of Islam’s history in the seventh century, Islamic legal canons have played a major role in the construction of Islamic law, broadly construed, ever since.2 The canons come from both the classical enumeration of four foundational sources (Qurʾa¯n, Sunna, consensus and reasoning) and from juristic and judicial practices addressing local disputes, responding to political authority and reflecting social-cultural norms. Throughout Islam’s history, judges and jurists have used legal canons not only to restate Islamic law, but to construct it. In the process, they deposited into the corpus of canons their ideas of valid interpretive and procedural principles, social-moral values, and the scope of their own power vis-à-vis other institutional actors. Studying legal canons may well be essential to understanding Islamic law itself because the canons offer a wide-angled lens through which scholars can examine the history of ­Islamic law in terms of substance and procedure, textual and contextual bases for the law, and hidden values governing the law and its institutions. This lens can also bring into focus the understudied laws, procedures and institutional actors who regularly deployed legal canons to shape Islamic law, historically. That focus can in turn sharpen the conventional image of textual origins of Islamic law to reveal the contours of its extratextual bases. Legal canons spotlight an undeniable degree of judicial discretion, interpretive diversity and legal change permeating Islamic law. They represent key tools by which jurists argued with respect to notions of equity, necessity or rational 221

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presumptions to produce or justify novel rulings that changed over time, often for discoverable social-institutional reasons to the legal historian or comparative lawyer. All told, approaching Islamic law with an eye on the role that legal canons played in constructing it can help jurists and legal historians chart a fuller and more textured picture of Islamic law. Enterprising jurists in the Muslim world have taken up this study in recent decades to some degree. But they also complain that attempts to define and classify Islamic legal canons have not been precise or comprehensive – to the detriment of the field.3 I too have complained of the problem with respect not only to internal discussions of Islamic law by the jurists, but also to external arguments among historians and lawyers.4 I did not seek to remedy the lack underlying my complaint when first made. I seek to remedy it now. This essay explores the types and functions of legal canons in the construction and interpretation of Islamic law, historically. It first examines the textual and other sources of legal canons. It next presents a comprehensive rubric – drawing on classical Islamic categories and modern American theories of interpretation – that attempts to outline what I have identified as five major categories of Islamic legal canons. It concludes with ideas for further study of this emerging field in areas of legal history, legal theory and comparative law.

1  Origins and sources of Islamic legal canons Islamic legal canons appeared right at Islam’s inception and circulated during the ‘founding period’ of the seventh to tenth centuries, and their influence and reach expanded thereafter in central Islamic lands. On the use of ‘founding period’ to refer to what other scholars have called Islam’s “formative period” during the first three centuries (‘early founding period’) or the next two (‘late founding period’), see my Doubt in Islamic Law, 8–9 and n. 15. The available sources from the founding period provide firm evidence of their presence and circulation if not clear attribution or textual provenance, which jurists would elaborate later. According to the later jurists writing on the subject, the canons have textual sources that parallel the foundational sources of Islamic law: the Qurʾa¯n, Sunna, consensus and certain forms of legal reasoning. Less recognized by these jurists but no less important is that Islamic legal canons also come from a number of extratextual or ‘extrinsic’ sources for Islamic law: judicial practice, interpretive presumptions and even foreign legal norms.5 This section explores each.

1.1  Textual sources: Qurʾan and hadith Some Islamic legal canons are present in the text of the Qurʾan itself. The Qurʾan is the primary source for Islamic law, even though its law-related verses are a minor portion of the full text. Of some 6,000 verses, only about 500 have explicitly legal content. Of those, most deal with ritual law and acts of devotion, such as rules for prayer and pilgrimage. That leaves approximately 190 verses that address non-ritual aspects of law.6 Some of those verses specify what later scholars took to be legal canons. For example, one verse commands Muslims to ‘honor all contracts’.7 Jurists treated that statement as a legal canon governing the law of contract and financial transactions.8 Islamic legal canons are also present in the corpus of hadith reports. Of the thousands of statements attributed to the Prophet and other early Muslim leaders, or ‘founding figures’, some hadith reports came to be labelled legal canons (and vice versa: some canons came to be labelled hadith reports). An example is the no harm report – later called the no harm canon – which was unanimously attributed to the Prophet, in both Sunni and Shiʿi law. It commands that there be ‘no harm and no retaliatory infliction of harm’.9 Another prophetic report-as-­ legal canon, which echoes the Qurʾanic canon on contracts, is the contractual condition canon, 222

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stipulating that ‘Muslims must honor contractual conditions’.10 A third canon of this type, also attributed to the Prophet, is the doubt canon, requiring judges to ‘avoid criminal punishments in cases of doubt’.11 Attributions to the Prophet sometimes came after circulation of the canon, as I have detailed in this case: the doubt canon was canonized through early citation and use in judicial practice then textualized through later attribution to the Prophet.12 While it is significant to note that not all of the reports verifiably go back to the Prophet, and that some are attributed to him only after the founding period – neither of these facts stymied the use of legal canons. Put differently, the authenticity of a prophetic attribution did not determine the authoritativeness of a legal canon during the founding period. The requirement of chains of transmission (isna¯ d) linking the Prophet to the articulation of a canon as a measure of authenticity was a feature of textualism that came much later in the development of Islamic law – around the fourth century, at the end of the founding period. Moreover, the need for documenting and authenticating a proper chain of transmission to verify the ­textual-genealogical provenance of hadith reports did not always apply to legal canons during the founding period. In short, questions of textual authenticity for canons became something of a textualist preoccupation long after the early period in which canons were in regular use. Thus, even when a minority of dissenting Muslim jurists raised issues of provenance and authenticity, as did Ibn H ․ azm, for example, in challenging the doubt canon, most judges and jurists used legal canons nonetheless.13 In fact, the canons circulating during the founding period were often a matter of common juristic knowledge and judicial practice. Were these canons, then, a part of the Sunna? Jurists after the founding period concerned with questions of origins and authenticity sometimes attributed these canons, as otherwise unattributed legal opinions, to the Prophet directly – likely reasoning that they were his word or rational corollaries to it. It is in this way that some legal canons came to be considered foundational texts.14

1.2  Interpretive sources: consensus and legal reasoning The second two sources of Islamic legal theory are interpretive, in that they help jurists determine which rulings are authoritative; and the legal canons follow this division. The first interpretive source is ‘consensus’, by which early Muslim jurists designated authoritative rulings by reference to the view of a majority view on an issue not covered by the foundational texts or on which there was more than one opinion circulating. In step with this notion, a set of Islamic legal canons express a ‘consensus’ (or majority agreement) of jurists on interpretive rules to resolve contested issues that Islam’s foundational texts alone did not clearly resolve. We can call these interpretive rules ‘consensus canons’. Some examples of consensus canons, or agreed-upon interpretive rules, are in order. A key consensus canon is the plain meaning canon, directing judges and jurists to ‘make no interpretation in the face of clear text’.15 This canon required judges to apply the plain meaning of foundational texts (ostensibly the Qurʾan and hadith reports, but in practice, also many more norms and rulings that came to be regarded as foundational and therefore as texts). This canon begs the question as to when texts are to be counted as foundational and when plain meaning is in fact plain. A simple example illustrates the point: in their classical jurisprudence, Muslim jurists labelled agreement of a majority of jurists (or the lack of overwhelming dissent) on an issue ‘consensus’, and they further defined opinions that carried that label to be foundational texts (nas․․s). Now the plain meaning canon implies that the absence of clear text calls for interpretation. But the jurists’ expansion of text to include early majority opinions called consensus meant that they had narrowed the scope of interpretation to matters beyond 223

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the plain meaning of the Qurʾan and hadith as well as their own earlier interpretations. In this way, later interpretation becomes subordinate to or foreclosed by early interpretation. In contrast to the restrictive import of the plain meaning canon, other consensus canons offered jurists considerable leeway in interpreting the foundational texts, however expansive they came to be. The no harm canon, contractual condition canon and doubt canon are examples of such interpretive consensus canons. In the face of significant ambiguities, these canons provided judges and jurists with tools to resolve questions of when harm is permissible, whether particular contractual stipulations are valid, and whether and how state officials were to enforce or avoid criminal punishments. Muslim writing after the founding period, when these consensus canons were widely used, attributed these canons to the Prophet, turning them into texts as well.16 The second interpretive source is legal reasoning, and refers to varied types of ­reasoning – from analogy (for Sunnis) to practical reasoning (for Shi’is). The lion’s share of legal canons were not products of consensus, but represented these varied types of legal reasoning. Formally, Sunni jurists accepted only text-based analogical reasoning, while Shiʿi jurists appealed to practical reasoning and rejected analogy. But their respective works of jurisprudence and body of legal canons indicate that both Sunni and Shiʿi jurists appealed to extratextual sources as well. For example, Sunni writings accept canons that might fairly be considered equitable principles – allowing the use of necessity (d ․aru¯ra), equity (istih ․ sa¯ n or istis․la¯․h ), or certain presumptions to derive new rulings.17 Likewise, later Shiʿi works articulate sets of canons that range from what they call procedural principles (us․u¯l ʿamaliyya) and standards of reasonable people (sı¯rat al-ʿuqala¯ʾ) to other norms that go beyond the four corners of a text.18 These canons could, and did, differ from school to school, jurist to jurist. Alongside consensus canons, these ordinary canons typically serve as gap-filling rules, designed to guide interpretation when the text runs out. For example, jurists might use them to resolve an important question of substantive law: whether the Islamic law of contract recognizes local exchange transactions as valid sales despite their divergence from ordinary Islamic contract forms and despite silence on the issue in the foundational sources. The custom canon addresses that scenario: it specifies that ‘custom has legal authority’ in the absence of a relevant text. This canon – sometimes together with a contractual condition canon – affirms the validity of local forms of exchange transactions and accompanying conditions or implied rights.19 Other gap-filling canons are interpretive rules, such as the canon against superfluity instructing jurists and judges that ‘giving meaning to a text is better than rendering it superfluous’.20 The sources I have examined show how these and other legal canons significantly shaped juristic and judicial interpretation in Islamic law, both mirroring and expanding the foundational sources of Islamic law.

1.3  Extrinsic sources: procedural and societal norms Not all canons come directly from Islamic law’s textual or interpretive sources, even in cases in which the tradition maintains that they otherwise should. This section sketches a few of the extratextual sources of Islamic legal canons, and thus of Islamic law.

1.3.1  Judicial practice: precedents and procedures Judges and jurists expressed many precedents and procedures in Islamic law through legal canons elaborated through judicial practice, common-law style. For instance, the ­central-most organizing principle for classical sharı¯ʿah courts is the evidence canon, allocating burdens of proof: ‘the claimant has the burden of proof, and the respondent may swear an oath of denial’.21 To be sure, virtually all jurists attribute this canon to the Prophet 224

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­ uhammad (as part of a longer statement in one of the decisions from his own judicial M practice). But – as was typical for legal canons – various legal actors filled out the contours of this skeletal rule through judicial practice and juristic deliberation in ways that far outstripped any explicit prophetic directive. To be sure, to say that judges and jurists elaborated legal canons through judicial practice is not to say that the canons did not have roots in early practice or even statements of the Prophet or other early authorities in the understanding of these same canon-­elaborating interpreters. But it is to say that they later came to conceive of legal canons as drawing on elements from early Islamic history as well as elements arising from the later history of Islamic legal interpretation and judicial practice. In a similar vein, the single most important procedure for deciding criminal cases is the doubt canon. This canon requiring judges to ‘avoid criminal punishments in cases of doubt’ emerged and expanded through judicial practice as well.22 As detailed at length my book, Doubt in ­Islamic Law, the doubt canon also reflected value-laden forms of judicial authority and morality.23 Judges used the canon at times in opposition to, or in cooperation with, political rulers; and in some instances the canon reflected moral anxieties about harsh punishments. For example, in an eighth-century episode of its use, the prominent Abbasid judge and jurist Abu¯ Yu¯suf reportedly relied on the doubt canon to absolve the caliph’s son of punishment for a sex crime.24 He also advised the caliph to apply the doubt canon more broadly in a treatise written to provide guidance on taxation and other areas of public law over which the caliph wielded authority (including criminal law).25 Like many procedural canons, the doubt canon was not known as a hadith during the founding period, but rather it became a hadith text in the eyes of later jurists keen on adducing textual supports for their claims. The doubt canon was nevertheless authoritative as a basis for deciding cases of criminal law and changed dynamicallyn throughout Islam’s history.26 All of these canons proved central to the definition and construction of early Islamic law and procedure.27 What is important to note is that, regardless of textualist claims, the meaning and application of these canons, and thus the meaning and application of the Islamic law of procedure, often came from common law-like judicial practice.

1.3.2  Practical principles: presumptions and governance norms Within the first two centuries of Islam’s advent, the small community formed during the Prophet’s time quickly spread from Medina to towns in places as far-flung as Iraq, Iran and Central Asia to the east, and as far as Andalusia and Sicily to the west. As new cases and controversies arose, so did legal canons suited to serve the changing needs of a rapidly expanding community. H ․ anı¯fa’s disciple ․ anafı¯ jurists led the development of legal canons literature.28 Abu¯ H ­Muh․ ammad al-Shayba¯ nı¯, for example, announced that ‘every matter made permissible by ownership or marriage cannot be made impermissible except by dissolution of ownership or marriage’.29 His statement was a canon giving form to a general standard for determining the law of social relations and transactions, and it aligned with a general presumption of permissibility, stipulating that ‘transactions are presumed permissible’.30 Both of these formulas are examples of reason-based presumptions used to render Islamic law operable, packaged in the form of legal canons. As another example, Abu¯ Yu¯suf, operating in the same H ․ anafı¯ circle, generated a legal canon to allocate power between judicial and political authorities. This canon accorded authority over ‘discretionary penalties to the caliph in proportion to the seriousness of the crime or lack thereof ’, as determined by judges or jurists in individual cases. 31 During the reign of the caliph Ha¯ ru¯n al-Rashı¯d in the eighth century, Abu¯ Yu¯suf had debated vigorously with fellow H ․ anafı¯ jurists about the permissible scope of discretionary penalties. Some 225

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of these jurists set the upper limit of punishment at less than the lowest fixed criminal law penalty of 40 lashes, some at up to 75 lashes, and some at no cap all.32 Abu¯ Yu¯suf ’s canon merely represented his stance on the issue. The canon did not itself resolve the debate with a rule, but rather, it provided judges and jurists with a standard to address problems of punishment in novel, individual cases.33 Abu¯ Yu¯suf ’s statement is a good example of a governance canon – a principle by which he as a jurist allocates power among Islam’s rather diffuse institutional actors. On its face, the canon confers power on the political authorities to determine the extent of discretionary punishments. But the jurist generating and applying the canon has assumed the power to make that very power-allocating determination.34 The founding figures from the other schools of law – Sunni and Shiʿi schools alike – ­developed myriad other legal canons based on the practical needs of adjudication. The legal treatises written by Sha¯fiʿı¯, Ma¯lik, Abu¯ H ․ anı¯fa’s associates, and Ibn H ․ anbal, as well as Abu¯ Da¯wu¯d, and all of their disciples are replete with legal canons. For instance, Sha¯fiʿı¯’s Kita¯b al-Umm includes 30–50 legal canons, and Ma¯lik includes a sizeable number in his Muwat․․taʾ.35 Similarly, legal canons are abundant in early Shiʿi law, especially from collections of reports and notebooks attributed to the disciples of the Prophet as well as to ʿAlı¯, Jaʿfar al-S․a¯diq and other Imams.36 These works all include several of the most widespread canons – such as the previously mentioned no harm canon, the evidence canon and the doubt canon – which are thus on display as playing an instrumental role in the definition and construction of Islamic law during its founding period.

1.3.3  External borrowing: regional and foreign law norms In addition to legal canons that originated in judicial practice and practical need among the Muslims of the H ․ ija¯z, Iraq and surrounding lands, other canons may have had regional origins in the Late Antique Near Eastern or Roman laws that governed before the people of the region became ‘Muslim’.37 One such canon is the paternity canon, which assigns paternity to a husband for offspring from marriages in the following formulation: ‘the child belongs to the [marital] bed: al-walad li-l-fira¯sh’. The meaning and origin of this Islamic canon are much debated, but it correlates with a well-known Roman canon: ‘pate rest quem iustae nuptiae demonstrant: The father is he who is married to the mother’.38 Joseph Schacht, a leading scholar of Islamic law as a relatively new field for early 20th-century America and Europe, hypothesized that the correlation between the two canons (he calls them ‘legal ­maxims’ – ­following earlier, now displaced, usage in English-language scholarship on Roman law alongside E ­ nglish and American law39) implied causation and concluded that Muslims borrowed the canon from Roman law.40 In so saying, he ignited heated scholarly debate on the possible origins of this ‘Islamic’ canon. Some scholars argued that Schacht’s theory of Roman law-borrowing was unlikely, even if formally possible.41 Others suggested that the Islamic version of the canon originated in pre-Islamic Arabian law or came from a Jewish law principle in the Babylonian Talmud.42 Perhaps most notably, one scholar asserted that the canon was sui generis ‘Islamic’, on the grounds that it deliberately opposed pre-Islamic Arab norms for paternity disputes.43 Notwithstanding correlations between the Islamic paternity canon and others, it was not Jewish or Roman law norms that would have been circulating in seventh-century Mecca, which was rather isolated. Instead, he demonstrates that Arab norms were circulating, where judges evaluated physiognomy rather than marriage to determine paternity.44 The Islamic norms came to oppose the Arab ones.45 To this day, scholars debating the issue have not arrived at a definitive conclusion about the origins of Islam’s paternity canon. However, the debates confirm that jurists used the canon during the first century of Islam’s history and that (as with the doubt canon) they later regarded it as a hadith – attributing it to the Prophet likely to bolster its authority and use as a legal canon. 226

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It stands to reason that some Islamic legal canons originated in local norms. That much is consistent with other features of law and governance now regarded as Islamic. For example, other historians have identified governance structures that Islamic law absorbed as the empire spread.46 They have also highlighted various judicial rulings and juristic opinions that are only explained by the weight that local customs bore on the construction of and diversity within Islamic law. In that vein, they have identified arguments internal to Islamic law that support the use of custom in resolving questions of Islamic law – in fact best expressed through a universal custom canon: ‘custom has legal authority’.47 Yet to determine when and from where Islamic law may have borrowed specific legal canons from Roman, Sassanian or Near Eastern norms requires more work.48 Canons that come from various types of legal reasoning and from other extratextual sources serve as gap-filling presumptions, tie-breakers, or clear statement rules – all designed to guide interpretation when the text runs out.49 This first section has classified these canons according to their textual and extratextual origins, whether explicit or implicit. The next section classifies them according to their functions.

2  Major categories of Islamic legal canons Once Islamic legal canons were freely and widely circulating during Islam’s early founding period, jurists began to collect them as a separate (third) genre of Islamic law, beginning around the fourth/tenth century.50 They classified these legal canons according to three broad categories: interpretive, substantive and universal. In coming up with these categories, they relied on the organization of the two existing, well-recognized genres of Islamic law: jurisprudence (us․u¯l al-fiqh), according to which they identified a set of interpretive canons, and substantive law ( fiqh), according to which they identified a set of substantive canons. To that two-part classification, they added five universal canons, which they designated as a set of agreed-upon, overarching principles or values derived inductively by examining the spirit of Islamic law on the whole as drawn from the aggregate rulings. Recent scholarship on Islamic legal canons follows these same traditional divisions, more or less.51 An example is the treatment of Muh․ ammad S․idqı¯ al-Bu¯rnu¯, who has compiled the most extensive encyclopedia of legal canons in Sunni law. He divides canons roughly into these same categories – interpretive, substantive and universal. In line with some strands of earlier scholarship, he sub-divides the substantive canons into universal, general and specific. Exceptionally, he further develops his own classification of canons with respect to their sources, to which I have appended labels in parentheses for ease of reference: 1) canons that restate foundational texts (textual-source canons); 2) canons restating legal principles purportedly based on consensus or formal legal reasoning (interpretive-source canons); 3) canons restating legal principles derived by means of equitable principles such as istih․ sa¯ n, is․․tila¯ h, istis․․h a¯ b (equity or extratextual-source canons).52 Left uncategorized by scholars of interpretation and legal canons are a number of procedural and other principles that feature in medieval Islamic legal literature but that have been not fully assessed in modern literature. Assessing these uncategorized canons is essential to outlining the full range and functions of canons in Islamic law, particularly in light of evolving theories of interpretation in comparative legal theory more generally.53 227

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My approach seeks to outline a comprehensive classification of Islamic legal canons that incorporates the traditional categories and adds new ones to capture previously uncategorized canons. To that end, I classify Islamic legal canons according to their sources, applications and functions, historically.54 Specifically, I assess traditional and contemporary treatments of Islamic legal canons by category and function, and inform that assessment with comparative insights from statutory interpretation theory developed in recent American law literature on the function of canons. In deference to traditional Islamic law treatments, I first present substantive canons and interpretive canons, following the classical model’s internal structure and that of most contemporary scholars writing on the subject. That is, like Burnu¯, Buru¯jirdı¯ and other scholars who follow the classical divisions, I organize the Islamic legal canons according to the bi-partite division of Islamic law into substantive rulings ( fiqh) [substantive canons] and interpretive rules (us․u¯l al-fiqh) [interpretive canons]. Also following their practice, I append the universal canons to the category of substantive canons, and assess the interpretive canons with respect to their source and function into textual canons, source-preference canons and extratextual canons. I then divide the remaining canons that fall outside of the two main classical categories by institutional function, classifying them in the terms of new categories as procedural, governance or structural canons. This functional analysis is where my treatment diverges from existing treatments. I combine insights from recently developed theories of statutory interpretation with classical treatments of Islamic legal interpretation to outline a fuller account of the form and function of Islamic legal canons. Until recently, scholarship on legal canons was insufficiently theorized to allow for accurate or precise understandings of what canons were doing in American law, or rather the ends to which legal actors understand and deploy them – from judges to executive and congressional actors – as presented in their own decisions, legislation and rule-­making, and self-conscious assessments through interviews and scholarly writing. Scholarship over the past 40 years and increasingly so in the past ten years, however, has grown to identify and debate the various functions that canons perform. This fairly sophisticated and growing scholarship on statutory interpretation in US law invites a more sophisticated engagement in Islamic law. Applying insights from that literature to Islamic legal literature, my principal argument is that, in addition to encapsulating substantive rulings and policies of classical Islamic law, Islamic legal canons – like American legal canons – performed both interpretive and institutional power-­ allocating functions in ways that express identifiable structural and value-commitments in various Islamic contexts, even though the origins and institutional settings are quite different. The new categories that I propose do not change the content or operation of Islamic legal canons. Rather, these categories allow us to better classify and assess them, functionally, expanding on the existing accounts articulated in the traditional sources of Islamic law for jurists, judges and executive-administrative actors as they changed over time.

2.1  Substantive canons: universal, general, specific Substantive canons elaborate basic substantive principles of law as concise restatements that function as guidance to judges and jurists in the form of presumptions, tie-breakers or clear statement rules to aid in the interpretation and application of rulings in major areas of ­Islamic law. These canons often reflect aggregated legal rulings and thus value judgements about privacy, property, social morality and the like. In addition, these canons are drawn from both foundational texts and societal norms as understood by early Muslim jurists and judges.55 The jurists writing about the legal canons as a genre divided them into three types: (1) a small set of universal canons said to apply to all of Islamic law, almost as policy propositions; 228

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(2) a larger set of thousands of general canons that have wide application but that tolerate some exceptions (and thus include a subset of limited ( juzʾı¯ ) legal canons that nevertheless are general enough in scope to include in this category); (3) even more specific canons that apply to particular subject areas of law with a more limited scope.

2.1.1 Universal legal canons (qawa¯ʿid fiqhiyya kulliyya) Muslim jurists typically identified this set of five canons on which all legal schools agree, both Sunni and Shiʿi, as of universal application:56 (1) ( 2) (3) (4) (5)

Harm is to be removed: al-d․arar yuza¯ l. Custom is legally authoritative: al-ʿa¯ da muh․ akkima [or: muh․ akkama]. Hardship requires accommodation [of strict legal rules]: al-mashaqqa tajlibu al-taysı¯r. Certainty is not superseded by doubt: al-yaqı¯n la¯ yazu¯lu bi-l-shakk. Acts are to be evaluated according to their purposes: al-umu¯r bi-maqa¯․sidiha¯ .57

Rather than directly resolving cases, these canons tend to encapsulate the presumed purpose or spirit of the law, in ways distinct from discussions of the five so-called universal objectives (maqa¯․sid al-sharı¯ʿa) of Islamic law.58 The two concepts are often confused.59 Historically, ­Muslim jurists have treated the five universal canons as broad interpretive rules, similar to modern statements of statutory purpose or policy, meant to guide or constrain judicial interpretation in choosing between conflicting or ambiguous Islamic legal rulings for particular cases. They derived these canons inductively, from an aggregate view of legal rulings elaborated during the founding period. Thereafter, these jurists sought to apply these canons to most areas of law, and to deductively elaborate general principles to construct new legal rulings. By contrast, they discussed the five universal objectives as broad ethical values. They similarly derived these objectives from reasoned deliberation on the corpus of Islamic law, but did so in a more far-ranging way. To be sure, the five universal objectives initially emerged specifically from reflections on Islam’s criminal laws, as jurists extracted a set of public values to explain or justify the ends that Islam’s harsh criminal punishments were meant to serve.60 Yet, these same jurists historically treated these universal objectives more as philosophical norms that explained rather than guided the general thrust of Islamic law.61 That is, they treated universal objectives more in the realm of legal philosophy, one step removed from the legal interpretation to which substantive legal canons more directly applied. Unlike the universal canons, the universal objectives were ideal for explaining legal rulings and judicial decisions retrospectively but were inapplicable or unenforceable as a basis for crafting or challenging either.62 That said, the two sets of principles, universal canons and universal objectives, converge on a single expression that some medieval jurists held was the principle that underlies all of the Sharı¯ʿah, and that several modern jurists have suggested be used to evaluate and reform Islamic law.63 Islamic law, and the canons and objectives that express it, were to serve an overarching purpose of promoting human welfare.64

2.1.2 General legal canons (qawa¯ʿid fiqhiyya [juzʾiyya]) A large set of principles, ranging in the thousands,65 form the bulk of Islam’s substantive legal canons. These canons often restate settled doctrines of law in various subject areas of Islamic law, including ritual law, commercial transactions and criminal law. They also mirror the 229

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two types of legal rulings in Islamic law: declaratory rulings (ah ․ ka¯ m wad․ʿiyya) and injunctive rulings (ah ․ ka¯ m taklı¯fiyya). Canons restating declaratory legal rulings address the validity or legal status of a particular act, allowing a judge or individual to determine whether an act is either permissible or of neutral value, or whether instead it falls on a scale of valid, defective or invalid/void – as applied to the proper way to perform prayer or to fast in ritual law, or to form a contract or conclude a sale in commercial law. An example of a canon that restates a ritual law-­ declaratory legal ruling concerns the validity of ritual-completion (qa¯ʿidat al-fara¯ gh). It specifies that prayer, ablution or other ritual acts are to be deemed valid once completed, even if there was doubt about whether each component was accurately or adequately performed. This canon helps direct an individual legal agent’s attention to ritual performance with a focus on the intention rather than the technicalities and encourages that agent or his associates to avoid continuously second-guessing the validity or method of performing religious rites.66 A commercial law example, along similar lines, is the severability canon, specifying that ‘a defective condition does not void a contract’.67 Canons restating injunctive legal rulings address the legal classification of a particular act or duty along the scale of obligatory, encouraged, permissible (legal), discouraged, and impermissible or prohibited (illegal). An example of a canon that restates a ritual law-­injunctive legal ruling is the intoxicant canon, stating that ‘every intoxicant is prohibited’.68 Another example of a restatement of a commercial law-injunctive legal ruling is the limited-goods sale canon, stating that ‘everything good that the law discourages eating, it discourages buying and selling’.69 In my review of canons historically, I find that these canons often reflect the societal values, social attitudes and regional preferences of scholars elaborating particular areas or schools of law. Furthermore, many of these canons are only enforceable to the extent to which a local authority or judge deploys them. Notably, not all of these canons are considered subjects of law on modern, secular definitions. The canons related to ritual law or ethical norms (such as fair treatment of parents), for example, may be called ‘religion canons’, and are typically ­individual-regarding and unenforceable by legal actors. But I include them here because Muslims jurists included them in the corpus of Islamic law and its legal canons, and moreover, because they very much considered them ‘law’ in the sense that they originated with a divine Legislator and, in Muslims’ understanding, carry the potential for reward and punishment – if not this-worldly, then other-worldly.70

2.2.3 Specific legal canons (dawa¯bit fiqhiyya, us u ¯ l71) ˙ ˙ ˙ A related set of subject-specific substantive legal canons or simply specific canons include restatements and presumptions of more limited and sometimes disputed scope than the general substantive legal canons above. Many of these specific canons often qualify the general canons. And many of them are often subject to intra-school and inter-school contestation. One scholar distinguishes the general canons from specific canons by defining the latter as rules that are ‘limited and constrained, whether by a general principle, a definition, mention of a measure, specification of specific categories, conditions, legal causes [to which it applies], or other limitations’.72 Examples are plentiful. One example has been mentioned before:73 the paternity canon, which applies narrowly to a specific issue of family law and stipulates that ‘the child belongs to the [marital] bed: al-walad li-l-fira¯sh’, that is, that paternity is assigned based on the known marital relationship of the mother of a child notwithstanding an unknown or contested father.74 Judges could use this canon to make determinations about paternity, from which would flow judicial rulings on child custody, inheritance and other issues. An example 230

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of a specific substantive canon that modifies a general substantive canon is the corollary to the well-known commercial law canon stating that ‘Muslims [are to] honor contractual stipulations: al-­muslimu¯n ʿinda shuru¯․tihim’. This general canon for interpreting contracts is modified by a specific canon clarifying that a contractual condition is valid only if it does not go against the Qurʾan or Sunna. An example of a contested specific canon has to do with the property law principle stating that ‘whoever destroys property is liable for its replacement: man atlafa shayʾan fa-ʿalayh ․dama¯nuh’. Most schools of law agree on the validity of this canon.75 But note that it violates an early H ․ anafı¯ ruling against liability for destruction of property that structured to confer purely charitable or public benefit: ʿadam ․dama¯n al-mana¯fiʿ.76 Another disputed canon had to do with the legal status of slave women: were they in a type of marital relationship with their masters? Whereas the textual sources stipulate consent to effect this type of relationship, some early jurists and most later jurists ignored the textual rule and presumed consent, and thus assumed that a marital relation existed to render sexual relations between masters and slaves licit.77 Falling in the latter camp, the famous Judge Shurayh ․ decided a case relying on the contested canon that the sale of a slave woman effects her divorce.78 Betraying the tenuous nature of the canon, this same judge is said to also have once ruled on the basis of the related canon specifying that marriage is in the hands of the master, and divorce in the hands of the slave.79 Two general notes bear mention about the form and function of these substantive legal canons. First, like the general substantive canons, the specific substantive canons often reflect the societal values, social attitudes and regional preferences of scholars elaborating particular areas of Islamic law within their chosen school or within their particular area of subject-­m atter of expertise. Second, and importantly, substantive canons in one area of law often operate alongside different substantive canons in other areas of law, both general and specific. For instance, medieval Muslim judges sometimes invoked the family law paternity canon alongside the criminal law doubt canon. In some instances, the juxtaposition of these two canons resulted in judicial avoidance of punishments for a husband’s unproven and dubious allegations of adultery against his pregnant wife. That is, when deploying both canons, judges concluded that, even though a husband might accuse his wife of marital infidelity, without certain proof of such infidelity, the paternity canon bound the judges to ascribing paternity to the husband and the doubt canon directed them to avoid punishment against the wife.80 In this case, use of the canons perhaps counter-intuitively tended towards fewer impositions of legal duties or punishments, and often left less room for judges to intervene in the rights of individual legal agents. More generally, a judge’s selection of multiple canons guided interpretation even though it did not always constrain or determine it.

2.2  Interpretive canons Interpretive canons guide judges and jurists on how to interpret foundational texts when devising legal rulings (ah․ ka¯ m) that might be included in a fiqh treatise, as well as on how to interpret the law and facts when issuing opinions on novel legal questions in response to petitions or (fatwa¯ s) via decisions in court cases. Unlike substantive canons, which jurists sometimes direct ordinary lay people to use in guiding their actions, interpretive canons are specifically designed to guide legal experts on formulating scholarly opinions and rulings in their move from general jurisprudence to substantive law.81 Interpretive canons cover what may be called textual canons (linguistic rules for how to interpret texts), source-preference canons (source-specific principles governing how to weight different types of foundational texts in instances of potential conflict), and extrinsic canons (presumptions for how to rule in cases of silence). Examples of each follow. 231

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2.2.1  Textual canons Of the interpretive canons, textual canons instruct jurists and judges on how to interpret Islam’s foundational texts (Qurʾan and Sunna – which, recall, may include an expansive definition of hadith reports that countenanced changes over time) to derive the ‘ordinary meaning’ or ‘objectified intent’,82 based on common-sense rules of Arabic grammar and style. For example, there is the literal meaning canon (read: ordinary meaning, in my view) instructing judges to adopt the literal [or ordinary] meaning over the figurative unless there is an indication otherwise.83 Such canons can be informed by competing, or more accurately, qualifying canons. As suggested by the literal meaning canon itself, the general import of a legal text or statement is to be qualified when there is cause to diverge from the literal (or ordinary) meaning in particular areas of law, such as contract law or the law of oaths. An example is a subsidiary principle to the universal canon on the authoritativeness of custom that is itself a specific canon:84 literal meaning is superseded by customary norms.85 For example, if someone swears an oath that he will never ‘set foot in’ a particular person’s house, and then only technically sets his foot in that house without actually entering, he will not be liable for performing an act of expiation that Islamic ritual law would otherwise require for breaking an oath. This is because, customarily, the expression ‘set foot in’ means actually entering a place and presumably staying for some time, so the law attends to that ordinary, customary meaning over the literal meaning of the statement.86 As another example, someone renting a house is held to the default, implied conditions and rights of doing so, even if those conditions are not explicitly stipulated in a contract. This is, again, goes according to custom that gives cause for diverging from the text or for interpreting the text to make sense where it is silent.87 These canons reflect classical Arabic linguistics governing grammar and customary ­usage. These linguistics rules, in form, were – like legal canons – elaborated during the founding period and further codified in the fourth and fifth centuries in works of jurisprudence and legal canons.88

2.2.2  Source-preference canons Also among the interpretive canons are source-preference canons. These canons specify how judges and jurists should choose among multiple and/or conflicting sources addressing the same legal issue. In other words, these canons suggest how to weight different types of sources, such as the canons privileging foundational texts over interpretive rules,89 custom over contract90 and the first-in-time opinion over another equally valid opinion.91 Such canons help guide the judge or jurist’s task of interpretation by providing rules of thumb for considering a hierarchy of sources given the wide interpretative discretion they wield in the frequent absence of text or, alternatively, the presence of multiple or conflicting texts. The canons’ attempt to guide or constrain discretion reflects the jurists’ aspirational values of divine legislative supremacy, while at the same time, they reveal the prominent role of custom and other extratextual sources of decision-making in Islamic law.92 For example, custom can sometimes supersede the text according to some jurists. To be sure, most jurists maintained that every jurist and judge was obliged to privilege text over custom. But Abu¯ Yu¯suf disagreed, espousing the view that the doctrine of istih ․ sa¯ n (equity) really meant accommodating custom in ways that made it necessary to sometimes reject text (tark alnas․․s). Far from seeing this notion as extra-legal, he considered the incorporation of equity into Islamic law a recognition of custom’s role in constructing it, and explained that istih ․sa¯ n rulings were both legal and justified precisely ‘because custom was considered’.93 The compilers of the Mecelle adopted this position, emphasizing legal canons that carve out a significant role for custom and that accommodate changes in the law based on changes in time and place.94 232

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2.2.3  Extrinsic-source canons The third in the category of interpretive canons is a set of extrinsic canons – canons that reference extratextual sources, ones extrinsic to the traditional theory of Islamic legal sources. This set of canons refers to presumptions and other principles of interpretation in matters where the foundational texts – with their expansive meaning, including the Qurʾan and Sunna as well as consensus, textual canons and source-preference canons that are all considered hadith – yield absurd results or no result at all. In Sunni law, extrinsic canons also incorporate jurisprudential ‘sources’ in the lexicon of authors of us․u¯l al-fiqh that reflect what we might call equitable principles, such as, istis․la¯․h, istih․sa¯ n and istis․․ha¯ b, as well as, again, custom.95 Applications of these canons are also plentiful. The universal legal canon specifying that custom has legal authority and the related canon, stipulating that there is no bar on changes in legal rulings with changes in the times often produced different legal rulings where jurists believed that their interpretations, by reference to these canons together, would better give effect to the law than strict adherence to the text.96 Consider, for example, that the Qurʾan specifies eight categories of zaka¯ t recipients – the once-mandatory poll tax that typically now operates like a tithing that is religiously obligated on individual Muslims.97 One of these categories, muʾallafat qulu¯buhim, included people to whom the Prophet reportedly gave money to attract them to Islam – those who needed more material incentive. Despite the explicit Qurʾanic text, the second caliph ʿUmar cancelled out this category, reasoning that, because Islam had successfully been established as a religion and a political community, the law’s rationale and thus the law itself – albeit specified in the text of the Qurʾan – no longer applied.98 Two centuries later, Abu¯ Yu¯suf also announced changes to the rule of zaka¯ t. He disagreed with the practice of giving each category of recipients one eighth of the zaka¯ t funds, based on his determination that government workers should receive reasonable amounts rather than pre-mandated (Qur’anic) amounts that may or may not meet their needs. He thus wrote in his treatise on tax law, Kita¯ b al-Khara¯ j that the decision as to the precise amount was to be determined by the caliph rather than the jurists interpreting the foundational texts, as it had been before.99 The category of extrinsic-source canons also includes general legal presumptions in both Sunni and Shiʿi law that operate as default rules in cases of silence of the law. Sunni law, for example, specifies a presumption of permissibility for transactions, and a presumption of impermissibility for devotional acts or in matters of sexual ethics.100 Likewise, Shiʿi law includes a set of procedural presumptions designed to guide jurists in instances of doubt about a legal ruling.101 Like Sunni jurists, Shiʿi jurists maintain that these presumptions, or canons, are borne from an aggregation of the texts about which they have deliberated to extract a general principle. They further acknowledge that such rational presumptions are part and parcel of the discipline of jurisprudence (us․u¯l al-fiqh), but nevertheless treat them as legal canons because of the way they function as default rules in cases of textual silence or ambiguity.102 As default rules, these presumptions-as-canons reflect a particular ‘theology of delegation’.103 Those who accept them, based as they are more on reason and logical deductions than on text, believe that, while God is the supreme Legislator, jurists have the authority, discretion and duty to interpret Islamic texts. For them, these canons serve gap-filling or tie-breaking functions when the text runs out. The jurists applying them believe themselves to be agents of the law endowed with the knowledge and training to consider and resolve complex questions of law and ethics, and thus to be in derogation of these God-given faculties by not exercising reason. In their view, morality is outlined by the divine Lawgiver, and its parameters in the world are defined by reasoned deliberation and sometimes applications of ­Islamic law. By contrast, those who reject these canons, including some H ․ anbalı¯s as well as most Z a ¯ hirı ¯ and Akhba ¯ rı ¯ jurists, adopt a doctrine of non-delegation. Believing that God ․ 233

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is the sole Legislator, and that legislation starts and stops with a limited set of foundational texts, they maintain that God designated a ruling for every situation in the world. They further believe that law and morality are determined by existing rules elaborated within Islam’s foundational texts and that the job of the technically trained jurist or hadith scholar is to discover them.104 The importance of these theories to the entire concept of Islamic law – that of divine legislative supremacy and of the theology of delegation – cannot be understated.105 They go to both structure and interpretation of Islamic law, and form the epicentre of the explosive disagreements from which extend the fault lines dividing jurists in camps that diverge on major approaches to interpretation (in debates between textualists versus purposivists) and according to concepts of the role of reason in defining Islamic law (in debates on law and morality).

2.3  Procedural canons: evidence and judicial proceedings A third set of canons are well-recognized principles that often emerged from judicial practice to form the Islamic law of procedure: the procedural canons. These canons are typically undifferentiated from the substantive legal canons in much of the existing literature on Islamic legal canons. But it is clear that these canons were historically subject to separate treatment among judges and jurists deploying them and in judicial manuals, even when often combined with other rulings in works of substantive law or jurisprudence. As a consequence of their rather rough classification historically, procedural canons are even more understudied than their larger set of Islamic legal canons, even though they are essential to the operation and full understanding Islamic law. These canons comprise three types: evidentiary canons that regulate the laws of proof, judicial procedure canons that advise litigants on how to properly bring cases and that advise judges on how to adjudicate them, and judicial conduct canons governing judges’ conduct and their institutional relationship to other authorities. Some of these canons, like the doubt canon, implicate all three types.

2.3.1  Evidentiary canons Evidentiary canons are sometimes connected to a handful of foundational texts instructing judges on the evidence required for initiating or proving claims and on the allocation of burdens of proof for deciding cases. At the same time, these canons incorporate the far more prevalent phenomenon of judge-made evidentiary procedures: extratextual presumptions devised to guide judicial decision-making where text-based guides are lacking. The best-known text-based evidentiary canon is the principle placing the burden of proof on the plaintiff: the burden of proof is on the claimant and the respondent may swear an oath of denial.106 A supplementary canon is rooted in customary usage is the presumption that written evidence is as probative as oral testimony.107 A list of related presumptions establish that the status quo or any judicial determination remains in effect until and unless some evidence establishes the contrary: • • •

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The default (presumption) is to preserve the status quo [unless evidence is presented to establish the contrary].108 The legal determination established at one point in time remains in effect so long as there is no evidence establishing the contrary.109 A judge is to issue decisions that affirm the preexisting status of a claim [unless evidence is presented to the contrary].110

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These stipulations are limited by another presumption specifying that a prerequisite to recognizing the status quo or existing legal status of an act as valid is that it not be harmful.111 Lest these presumptions-as-canons leave the impression that Muslim jurists seek through Islamic law to maintain the status quo, exclusively, other evidentiary canon indicate accommodation of legal change.112 One evidentiary canon specifies that rights once duly established become the new status quo that the law then protects, whoever possesses a right or claim has exclusive rights to its enjoyment, until probative evidence establishes the contrary.113 Other evidentiary canons sometimes create mechanisms to expand judicial discretion – again, against maintaining the status quo. The doubt canon is a case in point. This canon – in addition to being a substantive canon governing applications of criminal law and an interpretive canon governing definitions of it – is a principle recognized in every school, and it became a tool by which judges and jurists asserted the authority to define doubt, and therefore substantive criminal law as well as the laws of evidence and procedure for criminal law.114 Evidentiary canons could also be the procedural manifestation of specific canons unique to a particular legal school. Consider, for example, the contested canon reflecting the H ․ anafı¯ principle permitting court translation without verification – stipulating that ‘a translator’s statements are to be accepted’.115 Consider, too, the disputed canon that a judge may rule on the basis of a single witness if he knows of the witness’s reliability.116 Finally, consider the presumptions permitting certain types of circumstantial evidence as bases for valid legal rulings.117 For instance, in some schools of thought, if someone leaves an empty house afraid and confused, with a blood-stained knife in hand, and someone else enters the house and sees a slaughtered person in the house, there is little doubt that the one who exited was the killer. The law need not speculate on alternate or far-fetched possibilities (ih․tima¯ la¯ t wahmiyya), such as the idea that the person might have committed suicide.118 This ruling is of course in direct contradiction to classical applications of the doubt canon, which prohibited guilty determinations as a matter of law on similar facts. In fact Ibn al-Qayyim and other jurists recounted an early ‘case’ with almost precisely those hypothetical facts to construct and justify the doubt canon itself.119 Such divergent canons dovetailed with a judicial push among H ․ anafı¯s and Sha¯ fiʿı¯s to permit reliance on judicial knowledge, or ‘judicial notice’, drawing on other disputed legal canons among early Muslim jurists.120 The divergence between these canons shows that they are sometimes school- or jurist-specific, and signal the extent to which evidentiary canons can be discretion-conferring. Still other evidentiary canons may constrain discretion, directing judges on how to make a determination in cases of conflicting evidence. For example, one civil law evidentiary canon stipulates that contradictory evidence does not suffice as probative.121 Thus, for example, Islamic law contains the generally agreed-upon rule, that if two witnesses provide and then retract their testimony, neither instance of testimony is probative.122 (Notably, this canon did not apply to most criminal contexts, which was governed by the doubt canon – which liberally permitted retractions, on the basis of which criminal liability was dropped.)123 All these canons reflect changing societal norms and customs about proof, social cohesion and the scope of judicial discretion. The last of these elements is bound by the differing parameters of interpretive leeway afforded by a particular jurist or school’s theology of delegation, as noted above: how much authority did the divine Legislator delegate to qualified human agents to decide matters of law and ethics? In debates about presumptions and other ­extrinsic-source canons of Islamic law, judges and jurists frequently defined the parameters of these larger questions only implicitly as they exercised what they perceived to be the scope of their own discretion to resolve cases and to assign legal or moral culpability elsewhere.124 235

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2.3.2  Judicial procedure canons Judicial procedure canons address rules governing the courts or litigants’ appearances before judges, including issues of standing, competence, or the sufficiency of a case or controversy to entitle a person with a grievance to petition a court in the first place. These canons also guide determinations of personal status and accompanying rights and obligations – where distinctions in classical Islamic law often revolved around identitarian features of a person’s background such as gender, minority, competence, religion, freedom, lineage, and even wealth or class. Unlike the evidentiary canons, most of the judicial procedure canons are not codified in the legal canons literature even though jurists frequently discuss and apply them in their opinions. Examples include rules that stipulate different outcomes based on the status of the legal subject: •

• •

Canons governing non-Muslim and women legal actors in medieval Islamic lands: A Muslim will not be given the death penalty for the death of a non-Muslim;125 non-Muslim testimony is accepted for cases involving non-Muslims;126 and canons reflecting rulings stipulating two women’s testimony for that of one man.127 Canons governing slave law: The rule of retaliation does not apply to slaves.128 A canon governing status hierarchies: the elite-leniency canon – Instructing judges to overlook the misdemeanors of high-status offenders.129

While Islamic law in theory espoused values of egalitarianism, justice and human welfare, these canons reflect many early attitudes suggesting that proponents of Islamic law historically adopted competing values. In particular, these divergent canons suggest that status hierarchy, gender discrimination, and religion-based rights or personal jurisdiction were to a certain extent uncontroversial norms in medieval and early modern Islamic societies.

2.3.3  Judicial conduct canons Judicial conduct canons detail rules governing judges themselves in circumstances that require them to self-regulate, such as controversies giving rise to recusal, the need to consult expert jurists when uncertain about the applicable legal ruling, and appropriate mechanisms for a judge or his deputies to resolve cases and execute judgments. For instance, early judges and jurists articulated various principles prohibiting judges from deciding cases when angry, requiring judges to consult expert jurists to clarify ambiguous substantive law rulings, and enumerating behaviour for which a judge could be removed from his position ‘for cause’.130 This area is perhaps the least well developed in the legal canons literature. Most of these canons are found in the judicial conduct literature (adab al-qa¯․d¯ı ), judicial biographies (akhba¯ r al-qud․a¯ t) and in historical chronicles.

2.4  Governance canons Governance canons are principles that reflect and encapsulate in some measure the varied theories of Islamic public law and political-legal authority (siya¯ sa sharʿiyya). They address such matters as the authority to set and enforce rules of criminal law, taxation, war and the like. In American law, governance canons ‘apportion institutional responsibilities, where the Court sets forth the duties of umpires (courts) and other players (agencies and legislators) in the ongoing elaboration of statutory schemes’.131 In Islamic law, these canons apportion institutional responsibilities among the principal institutions and actors in medieval Muslim societies: courts, judges, and caliphs. They also create avenues for issuing pardons or equitable judgments outside of the four corners of Islamic law’s textual sources, and they sometimes impose 236

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constraints on one institution in favour of another on the basis of core values of morality, theology of delegation, or legislative supremacy. Examples include the following: •

•

•

Canons allowing delegation of legal authority to the political ruler to resolve contested issues of law (for instance, the canon stipulating that it is for the imam to determine the extent of discretionary penalties in proportion to the severity of the crime).132 Canons laying down default rules to resolve cases where there is no legal ruling or contractual agreement to resolve a claim otherwise (for instance, the canon specifying that whoever dies without a will and no heirs, his money goes to the public treasury);133 and Canons imposing power constraints on the political ruler vis-à-vis individual rights (for instance, the canons stating that the imam may not take anything from the possession of an individual unless there is a well-known entitlement to do so,134 and that [government] relations with the people should be based on the public interest135).

Later iterations of a new set of governance canons arose in the Ottoman Empire, when state-­ appointed jurists attempted to create a new school of Islamic law that would merge classical Islamic law with Ottoman statutes or kanuns. Ahmet Cevdet Pas¸a, the leader of the project that resulted in the Mecelle (the Ottoman Commercial Code) – which began with a codification of 99 canons followed by individual articles that drew on Islamic commercial law – was the unsuccessful proponent of this attempt.136 New governance canons also appear in contemporary legislation in Muslim majority countries. Contemporary scholars studying these types of canons call them legislative canons (qawa¯ʿid qa¯ nu¯niyya) and define them as ‘the principles of social organization that explain the relationship of the state to the people’.137 In all three periods, (early) medieval/classical, Ottoman and modern, it is notable that these governance canons are typically derived from local ­political-legal norms, not from Islam’s foundational texts.138

2.5  Structural canons A final category is structural canons. This term is a label for general principles or legal canons that both reflect and construct the political-­institutional structures in early Islamic contexts. The foundational texts designate no specific religious, constitutional or judicial structures. Nor do those texts govern the separation of or interplay of relations between actors within those institutions. Instead, they presage a feature of interpretation that Professor William Eskridge and other scholars have observed even in modern contexts with constitutions that do establish (typically three) major branches of government along with a separation of powers: namely, that American judges deploy legal canons and use interpretation more broadly to allocate power.139 Similarly, I argue that Muslim judges and jurists historically deployed structural canons to allocate power between the institutions that they simultaneously helped construct. This arrangement featured in medieval Islamic law even more so than in modern contexts, such as that of the United States or Muslim-majority constitutional countries, where state-law foundational texts (in the form of constitutions and basic laws) purport to define institutions and therefore provide a textual baseline. The examples from Islamic history are plentiful, and relate to every major institution  – courts, caliphs and jurists – and they reflect the unique features of Islamic law, from its legal pluralism to its diffused structures. One example will suffice to show how jurists deployed structural canons to bolster the authority of the courts, given Islamic law’s radical legal pluralism among the jurists. According to what we might call a finality canon, a decision based on judicial interpretation cannot be reversed simply by a different interpretation.140 For example, if a judge 237

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has adjudicated a dispute on the basis of his own interpretation, that is, in the absence of a clear text, and then retires, another judge looking into the matter who comes to a different conclusion may not reverse the first judge’s ruling. Provided that the initial decision does not violate any of the rules governing valid interpretation, a mere difference of opinion on the part of the new judge cannot justify a reversal. This canon, often attributed in Sunni literature to the second caliph, ʿUmar, is backed by judicial practice. Jurists justifying this canon argue that, in his capacity as a judge, ʿUmar reportedly ruled in ways contrary to his predecessor, Abu¯ Bakr, but did not attempt to declare the first caliph’s ruling invalid because he understood that his own interpretation was not necessarily better and that both were equally valid.141 Contemporary Islamic law scholars reflecting on such episodes explain that this canon creates a notion of judicial finality. If one rule was allowed to cancel another, there would be nothing to stop a second reversal or infinite number of reversals, and thus there would no stability or finality of judicial decisions in Islamic law.142 In this way, medieval Muslim judges and jurists used legal canons to define the powers of the courts and other institutions. That is, through interpretation generally and the use of legal canons specifically, these legal actors both defined the power of varied legal and governing institutions individually and allocated power among them collectively.

3  New directions for the study of Islamic legal canons After a long period of largely neglecting the study of legal canons, Islamic law scholarship recently has corrected course.143 Hossein Modarressi suggested almost three decades ago that studying Islamic law without legal canons might actually block avenues for ‘grasping the nature of Islamic law and legal interpretation both historically and in the contemporary world’.144 I agree. In the time since, the literature on legal canons has vastly expanded, in the Muslim world and otherwise.145 But much is still to be done. Below, I detail areas where Islamic legal canons are ripe for study and meaningful contribution to fields of legal history, legal theory and comparative law.

3.1  Islamic legal history: medieval and modern Although conventional accounts of Islamic law give legal canons short shrift, this essay illustrates that canons played a prominent role in various aspects of Islamic law’s theory and practice, among jurists, judges, teachers and more. Jurists frequently incorporated legal canons into their works of substantive law and jurisprudence. Through legal canons, they offered restatements of settled or disputed legal policies, provided rationales for their opinions, and derived new rulings for novel cases.146 Judges also used legal canons in courts. Through regular use of the legal canons, they resolved cases, helped allocate power and constructed an Islamic law of procedure. Teachers regularly appealed to legal canons to instruct students of Islamic law in traditional educational settings on the major presumptions and precepts of Sharı¯ʿah as well as how jurists constructed them.147 All of these features make the genre of Islamic legal canons ripe for study towards uncovering more robust definitions of Islamic law and legal history, medieval and modern. Most existing scholarship on legal canons, including my own, has focused on particular aspects of their development in medieval history. The bulk of the attention has been given to the ways in which legal canons make up the Islamic laws of procedure and precedent (for example, the evidence canon) or express certain values or customary norms (for instance, the paternity canon or custom canon) that encapsulated certain Islamic legal rulings historically.148 Yet, it is no understatement to say that Islamic law cannot be fully understood without understanding the essential features and functions of legal canons. Incorporating legal canons 238

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into the study of Islamic law means recasting Sharı¯ʿah as both substance and procedure, and it points to ways in which aspects of both were contingent on changing institutional and cultural contexts. To that end, this section sketches the modern history of Islamic legal canons, and briefly considers related developments in law, politics and scholarship in the majority-Muslim world today. From a legal historical perspective, the modern history of Islamic legal canons was largely defined by the 19th- and 20th-century codification and constitutionalization of Islamic law, as first symbolized by the 1869 Mecelle. These efforts emerged from a period of colonialism or reform driven by encounters of global powers with the majority-Muslim world (primarily in the Middle East and North Africa, South and Southeast Asia, and sub-Saharan Africa). Each development had effects on the local conceptualization and application of Islamic law. Codification limited the dynamic tradition of the jurists and changed the system of legal education. Constitutionalism incorporated Islamic law as state law, which often balanced against liberal values and structural norms that differed from the public values and governance structures in pre-modern Islamic societies. And continued foreign influence had the unintended effect of inflating the appeal of a version of classical Islamic law that bore little knowledge of or resemblance to the historical doctrines and practice.149 American and European dominance evoked a sense of nostalgia among many legal and political actors among 20th-century Muslim-majority countries that had recently become independent. These actors sought to return to an imagined golden era when Muslims were sovereign over their own affairs and lived peaceably, prospering under a system undergirded by classical Islamic legal norms. Often, these actors sought a return by incorporating what has been dubbed ‘Sharı¯ʿah clauses’ into their new constitutions and Sharı¯ʿah-compliant criminal, commercial and family law codes. The clauses incorporated Islamic law as state law without defining it, and the codes attempted to codify historical features of Islam’s substantive laws without understanding them.150 All largely ignored the legal canons. From a political and governance perspective, the failure to consider the history and use of legal canons in modern conceptions of Islamic law can help explain some of the problems of law and politics in the modern Muslim world. Among many of those agitating for a return to the past, Islamic law amounts to a medieval snapshot that is all substance, no procedure. Elsewhere, I have critiqued this resurgence of Islamic law in politics based on originalist visions of Sharı¯ʿah that cite the authority of the founding period but in fact exhibit poor understandings of both law and history from that period and afterwards.151 Such nostalgic modernists and Islamists are often neither lawyers nor historians. They tend to be unfamiliar with Islamic law beyond basic texts, snapshots of which do not include informed perspectives on Islamic law as it developed with respect to (a) particular institutional structures and medieval social mores, (b) substance as it interacted with and was partially defined by procedure, and (c) all three genres of Islamic law – substantive law, jurisprudence and legal canons. Familiarity with each are necessary to inform internal-practical as well as external-historical conceptions of Islamic law. From the perspective of the community of Islamic law scholars, the last century-and-ahalf has seen increased scholarly attention to legal canons in direct contrast to its decline in the state. Jurists aware of the existence and value of legal canons have increasingly emphasized their importance for understanding Islamic law historically and perhaps for adjusting classical ­Islamic law to contemporary times. Through their writings, these canons-conscious scholars have made a particularly full-throated defence of the legal canons over the last 40 years or so. In Sunni circles, most modern developments have tended to emerge from Ma¯ likı¯ and H ․ anafı¯s have turned to the study of ․ anbalı¯ law.152 More recently, Sha¯ fiʿı¯s and H legal canons as well.153 In Shiʿi circles, contemporary jurists have started to re-examine the 239

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legal canons highlighted in the 18th and 19th centuries (with the return of the rationalist approaches to legal interpretation) with increased vigour in the 20th and 21st centuries.154 And other contemporary scholarship has recently featured studies on legal canons literature from Iba¯ d․¯ıs and other schools of Islamic law, including attention to intra- and inter-school comparison within Islamic law, and intellectual and social histories of Islamic law.155 With renewed interest in Islamic law for both scholarly and public purposes, perhaps the history of Islamic legal canons has become as relevant again as it is essential to understanding Islamic law. Over the past decade, certain state institutions in Iran, Egypt and a handful of other Muslim-majority countries have paid close attention to legal canons, sometimes including them in codes and court decisions. In several more Muslim-majority countries, legal education has re-incorporated legal canons in the study of Islamic law. In almost every country, whether Muslim-majority or not, legal canons play a sizeable role in jurists’ opinions (fatwas) issued by non-state-affiliated experts on Islamic law.156 These developments underscore the continued scholarly relevance and reach of the history of Islamic legal canons.

3.2  Islamic legal theory: interpretation and legal change In Islamic legal theory, legal canons and the jurists who deployed them historically performed varied functions depending on the particular juristic or scholarly approach. From the standpoint of jurists who use legal canons in their rulings (from an internal perspective), the canons bear both descriptive functions and prescriptive functions. That is, jurists use them sometimes to identify and describe past rulings in order to justify old laws and sometimes as guides to help them generate new laws. From the standpoint of legal history and academic theories of Islamic law and society (from an external perspective), legal canons can also reveal the extent to which jurists and judges, reflecting changing societal norms, played a role in defining the content and structures of Islamic law through interpretation, dynamically. Descriptively, legal canons will be instrumental for developing positive theories of Islamic law and legal process. Legal canons expose scholars to various subjects of Islamic law, and organize individual rulings under general principles that obviate the rather impossible task of assessing every single ruling in what has been called the excessively casuistic nature of Islamic law.157 The canons provide keys for exploring the social, political and jurisprudential rationales behind the opinions of judges, muftis and other legal arbiters that often produce legal change.158 And the canons provide a common legal grammar for comparing different interpretive processes and outcomes attached to the varied types of legal canons present across Islam’s schools of law – whether agreed upon as consensus canons, or disputed as contested canons.159 Appraising canons according to these functions thus suggests these three areas of promising research for better devising descriptive theories of Islamic law, as discussed here. Prescriptively, can Islamic legal canons provide tools not only for understanding Islamic law descriptively but also for constructing it? In internal debates about Islamic law, this question has been marked as one of the major questions facing both Sunni and Shiʿi legal theory today.160 Sunni law adopts fairly conservative perspectives, typically limiting legal canons to being tools only for describing Islamic law.161 But one scholar rightly concluded that the descriptive view of legal canons was not a necessary feature of Sunni law. Instead, the authoritativeness of legal canons to construct new rulings depends on their textual foundations and a jurist’s theology of delegation, which in turn determine the allowable scope for accommodating extratextual legal reasoning, gap-filling presumptions and changing cultural norms. This scholar strongly advocated a rationalist approach to Islamic law on the grounds that doing anything else would narrow its interpretive scope to the point of making the whole 240

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enterprise static and unworkable.162 Indeed, the history of Sunni applications (if not theories) of legal canons suggests that they had taken just such an approach: judges and jurists historically deployed legal canons to address new questions of Islamic law and to construct various aspects of it, while giving the appearance of following old precedents through citations of authoritative legal canons that could connect the old to the new.163 In Shiʿi law, a more law-generative orientation towards legal canons is more widespread, as is the theology of broad delegation to permit wide scope for rational interpretations of law. As in Sunni law, legal canons have always been used to address novel questions and thereby construct Shiʿi law. Contemporary jurists simply now acknowledge that fact. For example, Na¯․s ir Maka¯ rim Shı¯ra¯ zı¯ insists that legal canons ‘constitute methods of constructing legal rules in all subjects of law, and [that] substantive law is not just derived from, but also based on them’.164 A state-backed committee convened in Iran to collect legal canons declared that jurisprudence itself can be conceived of as collecting legal canons for the purpose of ‘guiding jurists in the interpretive process for constructing [new] legal rulings in practical settings, where it is not enough to simply rely upon the [classical] legal ruling (h ․ukm sharʿı¯ )’.165 And Mus․․t afa¯ Muh․ aqqiq Da¯ ma¯ d argued that legal canons can serve as interpretive tools for discovering or, in modern parlance, legislating, new laws.166 Scholars invested in both descriptive and prescriptive, or law-generative approaches to Islamic law have raised a series of questions about legal canons for theories of Islamic law. Consider, for example, the following questions: (1) Are legal canons on past matters conclusive, or can (and should) jurists derive new legal canons to address modern circumstances or apply old principles to new realities? (2) What were the areas of convergence or exchange in the context of legal canons in the development of Islamic law between Sunnis and Shiʿis? ( 3) Why did the field of Shiʿi legal canons develop later than the field of Sunni legal canons, as a genre?167 Answers to these questions provide valuable entry points to the study of legal canons in ­Islamic legal theory. Finally, for both descriptive and normative appraisals of legal canons, it may be worth also considering what is missing from the existing classifications and studies. For instance, is there a new set of modern canons missing from the classical corpus of legal canons – beyond the categories I have tried to organized and detail above? Bujnu¯rdı¯, for instance, identifies a justice canon (qa¯ʿidat al-ʿada¯ la), an ease canon (qa¯ʿidat al-suhu¯la) and a freedom canon (qa¯ʿidat al-h ․uriyya) as principles ‘with medieval origins that are of increasing relevance to modern society, but for some reason are missing from the oeuvre of legal canons literature’.168 Murtad․ a¯ Mut․ahharı¯ complains that the failure to renew the canons corpus with attention to new canons has led to the ‘ossification of society-relevant deliberation amongst Muslim jurists’.169 These scholars argue that further examining Islamic legal canons as principles for dynamic Islamic legal interpretation can facilitate new definitions and applications of Islamic law to better fit the changing contemporary world.170

3.3  Comparative law and interpretation: three puzzles In closing, it is worth noting the surprising convergence that has emerged over the past few decades among scholars of Islamic law and scholars of American law on the significance of legal canons to legal interpretation, and their use in the construction of both legal rules and 241

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institutions. Scholars in both systems see legal canons as a way to inform and perhaps reform the process of interpretation and the legal institutions that they help produce. When comparing the two, there are several puzzles. One puzzle is whether they are comparable in the first place, given the different origins of each – one secular, the other religious.171 A related puzzle is whether and to what extent canons help judges and scholars not only interpret the law in very different constitutional structures but also allocate power to the varied institutions in each.172 A third puzzle – the ‘dueling canons’ problem – is one of the most interesting, and thus worth examining here more closely as an illustrative example of how comparative law might shed light on both systems. The ‘dueling canons’ problem proceeds from the question whether canons guide or constrain interpretation, or are instead conflicting principles that provide convenient tools in the hands of a wily judge intent on imposing his own preferences in the law. Perceiving legal canons on the latter view, some opponents in the American context have sought to excise them from courts on the claim that they are incoherent and inconsistent.173 Most prominently, Karl Llewellyn initiated a realist attack on legal canons starting in the 1930s, on claims that canons were indeed tools for judges to impose their own preferences on the law. As evidence, he argued that, for every canon, there was a counter-canon. This fact, he argued, allowed judges to rely on virtually any canon to bolster their own preferences with a claim that they were constrained by the law when in fact they were not.174 The realist attack stymied debate on the canons for years in the academy.175 When debate did return in the 1990s, political scientists and behavioural economists took up the anti-­ canons mantle, seeing canons as contrary to the complex realities of legislation and interpretation and thus overly restrictive.176 To be sure, the canons never fully disappeared from the courts,177 and today, even in the academy, legal canons have recently come back with a vengeance. Among the voluminous scholarship on them, one pair of books stands out. The late Supreme Court Justice Antonin Scalia and Bryan Garner, author of Black’s Law Dictionary, produced a handbook in 2012 called Reading Law. In it, they advise judges and scholars on how to interpret American law based entirely on a set of 57 legal canons. In response, Professor William Eskridge, a leading scholar of interpretation and legal canons, published his own handbook in 2016, called Interpreting Law. He describes rather than prescribes, but similarly organizes his work around legal canons and identifies their outsized role in shaping American law – from the interpretation of legal texts to the structuring of legal institutions. These authors diverge in their conception of the authority delegated to judges to interpret law, as faithful agents of the legislature or of the constitutional text. In Islamic law, opponents to canons – who, like American textualists, promoted textual approaches to Islamic law – attacked legal canons, albeit on almost opposite grounds. American proponents of canons tended to be textualists. But Muslim opponents of canons tended to be strict textualists, along with Salafı¯-traditionists and other ‘conservatives’ who advocate adherence to the texts of laws drawn only from Islam’s founding period. All of these groups share in a doctrine that stands against any ‘theology of delegation’ – whereby God, as supreme Legislator, delegates interpretive authority to humans over law.178 Rejecting the notion of delegated interpretive authority, these groups require jurists to adhere to the plain meaning of the texts, even if doing so yields absurd or incoherent results. This stance against canons comes from their notice of the same problem of which Karl Llewellyn complained: that for every canon there was a countercanon. Muslim canons-proponents responded that the idea of a ‘dueling canons’ problem in Islamic law was a false problem. Some canons were of general import and were qualified by more situation-specific canons – such as those allowing for exceptions on the grounds of 242

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necessity (d․aru¯ra) or some other relevant legal cause (qayd, ʿilla muʾaththira).179 This feature of legal canons is a matter of logic and induction, they say, which applies to law and for that matter to any field outside of law. If a scientist announces a general inductive rule that mammals move their lower jaw when chewing but observes that the rule does not apply to crocodiles, his observation does not invalidate the general rule. Rather the general statement elaborates a general principle that holds true in most general cases, even if exceptions can be found to qualify it in limited cases.180 In short, Muslim canons-proponents argue that, for a legal canon to be valid and coherent does not require that it cover all cases. Instead, it requires that it be generally applicable in ordinary circumstances and that it apply with respect to the body of other legal canons and rulings, in a way that accords appropriate weight and hierarchy to each. So-called ‘dueling canons’ are not a matter of a competition between two equals, but they are a matter of proper categorization, hierarchical organization and prioritization of different canons as applied to a particular set of facts181 – which is a task for the astute jurist to organize. The goal is to do so with some measure of coherence and attention to justice or moral values, approximating what Ronald Dworkin has called law as integrity.182 The literature on Islamic legal canons has elaborated lengthy discussions on the priority of legal canons in response to the ‘dueling canons’ problem, and in this respect may have key insights to inform or compare with American scholarship on legal canons. All said, both traditions of legal canons deserve further study.

Notes 1 See, e.g., Yaʿqu¯b b. ʿAbd al-Wahha¯ b Ba¯ H ․ usayn, al-Qawa¯ʿid, al-fiqhiyya: al-Maba¯ diʾ, al-­muqawwima¯ t, al-mas․a¯ dir, al-dalı¯ liyya, al-tat․awwur (Riyadh: Maktabat al-Rushd, 1998), 22: al-amr al-kullı¯ yant․abiq ʿalayhi juzʾiyya¯ t kathı¯ ra tufham ah․ka¯ muha¯ minha¯ (quoting Ta¯ j al-Dı¯n ibn al-Subkı¯ ). 2 For a brief history, see my Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2015), 348–57. 3 For instance, Sayyid Muh․ ammad H ․ asan Bujnu¯rdı¯, al-Qawa¯ ʿid al-fiqhiyya (Qum, Iran: al-Ha¯ dı¯, 1419/[1998]), 15. 4 See Rabb, Doubt in Islamic Law, 355 (‘scholars of Islamic legal maxims have yet to develop a comprehensive understanding of the field as it operated historically or in modern times, nor have they categorized legal maxims in ways that take account of their full spread’). 5 For further discussion of and references to the foundational sources in Sunni and Shiʿi law, see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd edn (Cambridge: Islamic Texts Society, 2003), 16–55, 58–60; Hossein Modarressi, An Introduction to Shı¯ʿı¯ Law (London: Ithaca Press, 1984). 6 Roy Mottahedeh, Introduction to Lessons in Islamic Jurisprudence (Oxford: Oneworld, 2003), 1. 7 Qurʾan, 5:1 (Ya¯ ayyuha¯ ʾlladhı¯ na, a¯ manu¯ awfu¯ bi-l-ʿuqu¯d). 8 For discussion, see, e.g., Muh․ ammad S․idqı¯ b. Ah․ mad al-Bu¯rnu¯, Mawsu¯ʿat al-qawa¯ʿid al-fiqhiyya ­( Beirut: n.p., 1416/[1995]), 1:38. 9 See Mecelle, art. 29 (la¯ ․darar wa-la¯ ․dira¯ r). For brief discussion, see, for instance, Joseph Schacht, ­O rigins of Muhammadan Jurisprudence (Oxford: Oxford University Press, 1950), 183 (doubting that the canon is a prophetic report); S․ubh․¯ı Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ ʿ al-Isla¯ mı¯ , 5th edn (Beirut: Da¯ r al-ʿIlm li-l-Mala¯ yyı¯n, 1980), 237–39; Maka¯ rim-Shı¯ra¯ zı¯, Qawa¯ʿid, 16, 25; Bu¯rnu¯, Mawsu¯ʿa, 1:32. Of the dozens of monographs on this widely cited canon, see, for example, Muh․ ammad Ba¯ qir al-S․adr, La¯ ․darar wa-la¯ ․dira¯ r (Qum, Iran: Da¯ r al-S․a¯ diqı¯n, 2000); ʿAlı¯ al-H ․ usaynı¯ al-Sı¯sta¯ nı¯, ­Qa¯ʿidat la¯ ․darar wa-la¯ ․dira¯ r (Beirut: Da¯ r al-Muʾarrikh al-ʿArabı¯, 1994); I¯ ha¯ b H ․ amdı¯ Ghayth, ­al-Qa¯ʿida al-­dhahabiyya f ¯ı al-muʿa¯ mala¯ t al-Isla¯ miyya: la¯ ․darar wa-la¯ ․dira¯ r ʿinda al-H ․ a¯ fiz ․ Ibn Rajab al-H ․ anbalı¯ (Cairo: Da¯ r al-Kita¯ b al-ʿArabı¯, 1990). 10 See Bu¯rnu¯, Mawsu¯ʿa, 1:38–39 (al-muslimu¯n ʿinda shuru¯․tihim, with references to the hadith literature). 11 See generally my Doubt in Islamic Law, esp. 4–5, with an introduction to the doubt canon. 12 Ibid. 243

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13 Ibid., 48–66. 14 For a demonstration of the process of canonization and subsequent textualization, together with discussion of changing notions of Sunna, see my Doubt in Islamic Law, esp. 48–59, and ‘Islamic ­L egal Maxims as Substantive Canons of Construction: H ․ udu¯d-Avoidance in Cases of Doubt,’ Islamic Law and Society 17 (2010), 63–125. 15 See, e.g., Bu¯rnu¯, Mawsu¯ʿa, 1:39 (la¯ ijtiha¯ d maʿa al-nas․․s); Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ ʿ, 225–26 (la¯ masa¯ gha li-l-ijtiha¯ d fı¯ mawrid al-nas․․s); Muhammad ʿAlı¯ Tashkı¯rı¯ et al. (eds), al-Qawa¯ʿid, al-us․u¯liyya wa-l-fiqhiyya (Qum, Iran: al-Lajna al-ʿIlmiyya fı¯ al-H ․ awza al-Dı¯niyya bi-Qum, 2004), 425–75 (taqdı¯ m al-nas․․s ʿala¯ al-z ․a¯ hir and tah ․kı¯ m al-nas․․s ʿala¯ al-z ․a¯ hir). 16 Notably, juristic ‘consensus’ differed from time to time and community to community. Often a matter of local or time-bound agreement, consensus canons sometimes converged across Sunni and Shiʿi law (such as the no harm or plain meaning canons), but they often reflected the differing agreements of groups of Sunni jurists for Sunni law and of Shiʿi jurists for Shiʿi law. This is a matter worth elaborating elsewhere. 17 See Kamali, Jurisprudence, 469–500 (discussing, among other things, ijtiha¯ d as based on analogy ­(qiya¯ s) and inclusive of necessity (d ․aru¯ra), presumptions of continuity (istis․․ha¯ b), and ‘equity’ ­(istih․sa¯ n, istis․la¯․h)). For a discussions of istih ․sa¯ n and other equitable principles as equity in Islamic law, see Sherman Jackson, ‘Literalism, Empiricism, and Induction: Apprehending and Concretizing ­Islamic Law’s Maqâsid Al-Sharîʿah in the Modern World’, Michigan State Law Review (2006), 1476; Mohammad Fadel, ‘Istih․sa¯ n is Nine-tenths of the Law: The Puzzling Relationship of Us․u¯l to Furu¯ʿ in the Ma¯ likı¯ Madhhab’, Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 161–76. For a discussion on the varied functions of and meanings of ‘equity’ historically and comparatively, and specifically of two such functions that align with my reference to medieval Islamic usage – namely ‘corrective’ interpretation that goes beyond the declarative function of ordinary law and ‘moderating’ rulings to mitigate the harshness of law – see María José Falcón y Tella, Equity and Law (Leiden: Brill, 2008), xix and passim. 18 This framework emerged in the 18th century in the us․u¯lı¯ -jurisprudential tradition of Murtad․ a¯ al-Ans․a¯ rı¯, which displaced akhba¯ rı¯ -textualism and now dominates Shiʿi law. See Modarressi, Introduction to Shı¯ ʿı¯ Law, 57–8. On the equitable features mentioned (us․u¯l ʿamaliyya, sı¯ ra ʿuqala¯ʾiyya and other ama¯ ra¯ t), see Muh․ ammad Ba¯ qir al-S․adr, Lessons in Islamic Jurisprudence, trans. Roy Mottahedeh (Oxford: Oneworld Publications, 2003). 19 See Bu¯rnu¯, Mawsu¯ʿa, 1:40 (al-ʿa¯ da muh ․akkima [or muh․akkama]), noting that the authoritativeness of custom similarly has many textual and extratextual sources, though no single text dictates it. He cites, as examples, Q. 7:199 (‘Pardon people and decide on the basis of custom, and turn away from ignorant people: khudhi al-ʿafwa wa-ʾmur bi-l-ʿurfi wa-aʿrid․ ʿan al-ja¯ hilı¯ n’), Q. 4:19 (‘Deal with [people] according to customary norms: wa-ʿa¯ shiru¯hunna bi-l-maʿru¯f ’), and the hadith report, in Bukha¯ rı¯, said to apply to a woman seeking maintenance for a divorce (‘Take what suffices you and your son according to customary norms’). See also Khaleel Mohammad, ‘The Islamic Law ­M axims’, Islamic Studies 44 (2005), 206–7; ­Mohammad Hashim Kamali, ‘Legal Maxims and Other Genres of Literature in Islamic Jurisprudence’, Arab Law Quarterly 20 (2006), 87–90; Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 261–72. 20 See Bu¯rnu¯, Mawsu¯ʿa, 1:40–1 (iʿma¯ l al-kala¯ m awla¯ min ihma¯ lih); Mah ․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 233 (same). Bu¯rnu¯ makes this canon, rather exceptionally, a universal legal canon, noting that it has no single textual source but that it resonates with Q. 50:18 (ma¯ yalfiz ․u min qawlin illa¯ ladayhi raqı¯ bun ʿatı¯ d), and the hadith report (inna Alla¯ h taʿa¯ la¯ ʿinda kull lisa¯ n qa¯ʾil: fa-l-yattiqi Alla¯ ha ʿabd wa-l-yanz ․ur ma¯ yaqu¯l). 21 See Bu¯rnu¯, Mawsu¯ʿa, 1:43, 3:133 (noting that the canon was reported as a part of a hadith as included in the collections of all six canonical Sunni hadith collectors: Bukha¯ rı¯, Muslim, Abu¯ Da¯ wu¯d, Tirmidhı¯, Nasa¯ ʾı¯, and Ibn Ma¯ jah); cf. Maka¯ rim-Shı¯ra¯ zı¯, Qawa¯ʿid, 18–19. For discussion, see Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 329–34; Bujnu¯rdı¯, Qawa¯ʿid, 3:69–108; Mus․․t afa¯ Ah․ mad Zarqa¯ , Sharh․ al-qawa—ʿid al-fiqhiyya, ed. ʿAbd al-Satta¯ r Abu Ghudda (Damascus: Dar al-Qalam, 1989) [see p 254 for correct accents] 400–1; Ah․ mad al-Zarqa¯ʾ, Sharh․ al-qawa¯ʿid al-fiqhiyya (Beirut: Da¯ r al-Gharb al-Isla¯ mı¯, 1983), 304–22. 22 See my Doubt in Islamic Law, 48–66. 23 Ibid., 69–132. 24 Ibid., 89–90. 25 Abu¯ Yu¯suf Yaʿqu¯b b. Ibra¯ hı¯m, Kita¯ b al-khara¯ j, ed. Muh․ ammad Ibra¯ hı¯m al-Banna¯ ʾ (Cairo: Da¯ r al-Is․la¯ h․ , 1981), 303–5. 244

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26 See my Doubt in Islamic Law, 49–66 (tracing the canonization, textualization and generalized interpretation of the doubt canon); and my ‘Islamic Legal Maxims as Substantive Canons of ­Construction’, 63–125 (describing the transformation of the doubt canon into a prophetic hadith). 27 See generally my Doubt in Islamic Law. 28 See Bu¯rnu¯, Mawsu¯ʿa, 1:68–9 (surmising that H ․ anafı¯s preceded others schools in the articulation of legal canons because of the expansive nature of their substantive law rulings, based on the rational principles that their founders articulated in their interpretations of law – for which they were often lambasted by subsequent Sha¯ fiʿı¯s). 29 See Bu¯rnu¯, Mawsu¯ʿa, 1:56 (citing Kita¯ b al-As․l: kull amr la¯ yah․ill illa¯ bi-milk aw nika¯․h fa-innahu la¯ yuh․arram bi-shayʾ ․hatta¯ yunqad ․ al-nika¯․h wa-l-milk). 30 See, e.g., Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 220 (discussing al-as․l al-iba¯․ha); Maka¯ rim-Shı¯ra¯ zı¯, ­Qawa¯ʿid, 22 (same); Kamali, ‘Legal Maxims’, 84 (al-as․l fı¯ al-ashya¯ʾ al-iba¯․ha). This canon applies to non-ritual law and non-personal status law, but not, typically, to rituals and matters of sexual ethics (for which the presumption was flipped). For further discussion, see below, note 100. 31 See Bu¯rnu¯, Mawsu¯ʿa, 1:52 (citing Kita¯ b al-Khara¯ j: al-Taʿzı¯ r ila¯ al-ima¯ m Imam ʿala¯ qadr ʿaz ․m al-jurm wa-s․igharih). 32 Ibid. 33 Bu¯rnu¯, Mawsu¯ʿa, 1:56 (describing the use of legal canons to provide summary rationales for particular rulings and observing that: ‘It is clear that this method of giving rationales [for rulings] is closest to what then became the process of designating canons that are found in the early centuries’). On the distinction between standards and rules (and between principles and policies), see the famous essay by Ronald Dworkin, ‘The Model of Rules’, University of Chicago Law Review 35 (1967), 22–3 and passim. 34 Cf. William N. Eskridge, Jr, Interpreting Law: A Primer of How to Read Statutes and the Constitution (St Paul, MN: Foundation Press, 2016), 12 (defining governance canons as principles that, in American law, ‘apportion institutional responsibilities, where the Court sets forth the duties of umpires (courts) and other players (agencies and legislators) in the ongoing elaboration of statutory schemes’). For further discussion, see below, note 111 and accompanying text. 35 For a detailed account for Sunni law, see Bu¯rnu¯, Mawsu¯ʿa, 1:50–65. 36 For discussion, see Mus․․t afa¯ Muh․ aqqiq Da¯ ma¯ d, ‘Codification of Islamic Juridical Principles,’ ­H ․ ikmat 1 (1995), 98 (observing that ‘many of the general principles mentioned in Sunni sources, are found, in an identical form, in the traditions transmitted from the Ima¯ ms of Ima¯ mı¯ [Twelver] Shı¯ʿism, some of which are narrated from the Prophet (s․) himself and some others drawn from the direct teachings of the Ima¯ ms’.). 37 For an rich and critical discussion of these possibilities for the judiciary generally with reference to papyrological and literary-historical sources (though not with specific comment on legal canons that emerged from them), see Mathieu Tillier, L’Invention du cadi: La justice des Musulmans, des juifs et des Chretiéns aux premiers siècles de l’Islam (Paris: Sorbonne, 2017), 14–18; idem, Les Cadis dʿIra¯ q et l’etat Abbasside (132/750–334/945) (Damascus: IFPO, 2009), 64–83. 38 Both Ignaz Goldziher and Joseph Schacht, early on in Western studies of Islamic law, identified the canon al-walad li-l-fira¯ sh as the Arabic-Islamic version of the corresponding Roman law rule. See Ignaz Goldziher, Muslim Studies, trans. C. R. Barber and S. M. Stern (New Brunswick, NJ: Aldine, 2006), 1:164–90; Schacht, The Origins of Muhammadan Jurisprudence, 181–2; idem, ‘Foreign Elements in Islamic Law’, Journal of Comparative Legislation and International Law 32 (1950), 135. 39 I have previously used this term, ‘legal maxims’, and it seems the preferred term among the handful of historians writing on the subject in English – perhaps drawing from Schacht, himself perhaps drawing from the common name for the Roman law principles of this type. However, an extensive and growing literature of theories of interpretation developed in American law over the past few decades elaborate on the notions of ‘canons of construction’ or simply ‘legal canons’ as an entire field of interpretation, and has convinced me that these terms more accurately reflect the conceptual Islamic law analogs to qawa¯ ʿid fiqhiyya in contemporary English legal usage and theory. For discussion among some of the leading theorists of interpretation and legal canons, see the various works by William Eskridge, Abbe Gluck, Anita Krishnakumar, Karl Llewellyn, John Manning and the late Justice Antonin Scalia, among others, cited below in notes 150–5 and passim. 40 Schacht, ‘Foreign Elements’, 135. See also Patricia Crone, Roman, Provincial and Islamic Law (Cambridge: Cambridge University Press, 1987), 10 n. 96 (relying on Schacht). 41 See Crone, Roman, Provincial and Islamic Law, 9–11 (arguing that if rhetors transmitted R ­ oman knowledge, they likely did not convey legal principles as they were concerned more with 245

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argumentation than law, but nevertheless asserting that the early Arab-Islamic patronage system called wala¯ʾ had origins in Roman law); see also Harald Motzki, ‘The Mus․annaf of ʿAbd al-Razza¯ q al-S․anʿa¯ nı¯ as a Source of Authentic Ah ․a¯ dı¯ th of the First Century A.H.’, Journal of Near Eastern Studies 50 (1991), 19 (citing Patricia Crone, with agreement). 42 See Motzki, ‘The Mus․annaf of ʿAbd al-Razza¯ q al-S․anʿa¯ nı¯’, 19 (suggesting that the pre-Islamic attribution to Aktham b. S․ayfı¯ is anachronistic and thus false, and that the Jewish law correlation is not proven); see also Uri Rubin, ‘Al-Walad li-al-fira¯ sh’, Studia Islamica 78 (1993), 5–26 (tracing the history of the canon as a non-prophetic, possibly pre-Islamic, statement later back-attributed to the Prophet). 43 See Motzki, ‘The Mus․annaf of ʿAbd al-Razza¯ q al-S․anʿa¯ nı¯’, 19. 44 On practices of physiognomy, using certain physical features to determine paternity, see Ron Shaham, The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law (Chicago: Chicago University Press, 2010). 45 See Motzki, ‘The Mus․annaf of ʿAbd al-Razza¯ q al-S․anʿa¯ nı¯’, 19; Wael Hallaq, Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 19–25. 46 See, e.g., Mathieu Tillier, Les Cadis dʿIra¯ q et l’etat Abbasside (132/750–334/945) (Damascus: Institut Français du Proche-Orient, 2009), 64–83. 47 For discussion, see Mah ․mas․a¯nı¯, Falsafat al-tashrı¯ʿ, 261–72 (on the canon, al-ʿa¯da muh ․akkima [or muh ․ak2 kama], and tah ․kı¯m al-ʿa¯da). See also Heinrichs, ‘K ․ awa¯ʿid Fı¯․khiyya,’ EI , ed. P. Bearman, T. ­Bianquis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Brill, 2008); Kamali, ‘Legal Maxims’, 87–90; Bu¯rnu¯, Mawsu¯ʿa, 1:40; Mohammad, ‘Islamic Law Maxims’, 194, 206–7 (defining the term ‘muh ․akkama’ to signify that custom has persuasive rather than determinative or binding authority). 48 For suggestions to this effect, see Hallaq, Origins and Evolution of Islamic Law, 8–28 (for Near Eastern Law); Crone, Roman Provincial and Islamic Law (for Roman Law); Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 272–87 (for Roman law, Jewish law, and tribal and other local customs in Near Eastern conquered lands). 49 For a discussion of and reference to literature detailing the distinctions between these categories and functions of legal canons in American legal theory, see my ‘The Appellate Rule of Lenity’, Harvard Law Review Forum 131 (2018), 192. Compare William N. Eskridge, Jr, Philip P. Frickey and Elizabeth Garrett, Cases and Materials on Legislation, 3rd edn (St Paul, MN: Foundation Press, 2001), 850–1. 50 The history of Islamic legal canons unfolded over a series of stages. For discussion, see my forthcoming article, ‘Interpreting Islamic Law’, discussing these stages as follows: (1) the early founding period, when judges and jurists regularly deployed canons in the construction of Islamic law (7th–10th centuries); (2) the late founding period, when jurists recorded these canons in treatises devoted exclusively to them (10th–11th centuries); (3) a period of Sunni expansion and elaboration of legal canons treatises (12th–mid-13th centuries); (4) the golden age of rapid expansion of legal canons literature (mid-13th–16th centuries); (5) a period of Sunni decline, which accompanied a wave of codification and constitutionalization (17th–19th centuries); (6) a period of Shiʿi debate and reemergence (17th–19th centuries); and (7) the modern period of state decline but juristic resurgence (20th century to the present). 51 See, Bu¯rnu¯, Mawsu¯ʿa, 1:32–5, dividing legal canons along three different axes: (1) according to their degree of generality or specificity – into universal legal canons: al-qawa¯ʿid al-kulliyya al-kubra¯ , general legal canons: al-qawa¯ʿid al-fiqhiyya [al-aghlabiyya] or majoritarian, specific legal canons: ․dawa¯ bit․ (pp. 32–5); (2) according to their relationship to the other two principal legal genres – into interpretive legal canons: qawa¯ʿid us․u¯liyya and substantive legal canons: qawa¯ʿid fiqhiyya (pp. 25–8); and (3) according to their known sources – into textual sources (Qurʾan and hadith, pp. 36–9), interpretive sources that rely on the interpretive sources (ijma¯ʿ and legal reasoning, pp. 39–40), and interpretive sources derived from induction or general legal reasoning (pp. 40–1). The above text simplifies these divisions. 52 For example, Na¯․s ir Maka¯ rim Shı¯ra¯ zı¯ divides legal canons according to their scope of application into universal and general legal canons (whereas the specific canons, ․dawa¯ bit․, may not be canons at all in his view). He notes that all canons either apply to some subjects in substantive law, such as the ‘the canon on liability and non-liability: qa¯ʿidat ma¯ yud ․man wa-ma¯ la¯ yud ․man’, which applies to property and commercial law; or they apply to specific subjects of law that might encompass all fiqh chapters, such as the canon of ‘no harm: qa¯ʿidat la¯ ․darar’. Maka¯ rim-Shı¯ra¯ zı¯, Qawa¯ʿid, 23–4. He further divides legal canons by subject matter: (1) general canons (al-qawa¯ʿid al-ʿa¯ mma) that are non-subject matter-specific; (2) specific transactional law canons (related to a specific subject 246

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within muʿa¯ mala¯ t); (3) specific ritual law canons (related to a specific subject of ʿiba¯ da¯ t); (4) ­general transactional law canons (related to muʿa¯ mala¯ t, generally construed); and (5) evidentiary and procedural canons (used to connect real world rulings with an Islamic legal basis, such as the canon stipulating the probativity of the claim of a person in possession of property with disputed ownership: ․hujjiyyat qawl dhı¯ al-yad). Ibid., 26–7. Still others see some of these classifications, for example, dividing qawa¯ʿid from ․dawa¯ bit․ based on scope of application as unique to Sunni law or as ‘modern innovations’ that cut against classical treatments. In that vein, the Committee for the Study of Legal Canons in Iran concluded that a qa¯ʿida is the same as a ․da¯ bit․. See Lajnat ʿIlmiyya fı¯ al-H ․ awza al-Dı¯niyya bi-Qum, al-­Qawa¯ʿid al-us․u¯liyya wa-l-fiqhiyya, ed. Muhammad ʿAlı¯ al-Tashkı¯rı¯ et al. ¯ lamı¯ li-Taqrı¯ b Bayna al-Madha¯ hib al-Isla¯ miyya, 1425/2004), 1:8. (Qum: al-Majmaʿ al-ʿA 53 For a comparable division of American legal canons into categories of substantive, textual and reference canons, and for the leading textualist and dynamic treatments of them, see respectively, Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St Paul, MN: Thompson/West, 2012); Eskridge, Interpreting Law. 54 Elsewhere, I provided a preliminary outline following the earlier attempts, on which the current assessment expands for a more robust treatment. See my Doubt in Islamic Law, Appendix 3 ( jurisprudential canons, substantive canons and ‘other’ canons). Tracking the areas of law to which a canon applies has several advantages: it tracks the classical bi-partite treatment of canons, it adds new categories introduced by evolving statutory interpretation theory to identify previously unrecognized categories and functions of early Islamic legal canons, and it thereby renders both fields comparable to one another to aid in further study along lines of theory or application. 55 For comparative purposes, see the definition of substantive canons in American law in Eskridge, ‘The New Textualism’ and Normative Canons,” Columbia Law Review 113 (2013), 537 (‘Substantive canons are presumptions, clear statement rules, or even super-strong clear statement rules that reflect judicial value judgements drawn from the common law and from constitutional law (created by judges), as well as from statutes themselves (as understood and interpreted by judges)’). 56 With some exceptions. For example, the early Sha¯ fiʿı¯ scholar of legal canons, Qa¯ d․¯ı H ․ usayn, counted only four canons as universal: all but the fifth canon on intention, which was apparently added later. See Mah․ mas․a¯ nı¯, Falsafat al-Tashrı¯ʿ, 327 (citing Ta¯ j al-Dı¯n al-Subkı¯, in Banna¯ʾı¯’s Sharh․ and H ․ a¯ shiya to Subkı¯’s Jamʿ al-jawa¯ miʿ, 2:383). Ibn Nujaym on the other hand emphasized a second intention canon as his sixth. See Kamali, ‘Legal Maxims’, 94 (adding ‘no spiritual reward accrues without intention: la¯ thawa¯ b illa¯ bi-l-niyya’). Bu¯rnu¯ considers a sixth canon against superfluity to be universal: ‘giving effect to text is preferable to regarding it as superfluous: iʿma¯ l al-kala¯ m awla¯ min ihma¯ lih’. See Bu¯rnu¯, Qawa¯ʿid, 1:40–1. 57 See, for example, Abu ʿAbd Alla¯ h Muh․ ammad b. Muh․ ammad al-Maqqarı¯, Qawa¯ʿid, ed. Ah․ mad b. ʿAbd Alla¯ h b. H ․ amı¯d (Mecca, Saudi Arabia: Ja¯ miʿat Umm al-Qura¯ , n.d.), 198–212; alFa¯ d․ il al-Miqda¯ d al-Suyu¯rı¯, Nad․d, al-qawa¯ʿid al-fiqhiyya ʿala¯ madhhab al-Ima¯ miyya, ed. ʿAbd al-Lat․¯ı f al-Ku¯hkamarı¯ Mah․ mu¯d al-Marʿashı¯ (Qum, Iran: Maktabat A¯yat Alla¯ h al-ʿUz․ma¯ al-Marʿashı¯, 1403/1982–3), 90–114; Ibn Nujaym, al-Ashba¯ h wa-l-naz ․a¯ʾir, ed. Muh․ ammad Mut․¯ı ʿ al-H ․ a¯ fiz․ (Damascus: Da¯ r al-Fikr, 1983), 1:17–19; Muh․ ammad al-H ․ usayn A¯ l Ka¯ shif al-Ghit․a¯ʾ, Tah․rı¯ r al-Majalla, ¯ ․s ifı¯ and Muh․ ammad al-Sa¯ʿidı¯ (Qum, Iran: al-Majmaʿ al-ʿA¯ lamı¯ li-led. Muh․ ammad Mahdı¯ al-A Taqrı¯ b Bayna al-Madha¯ hib al-Isla¯ miyya, 1422/2001–2), 1:129–32, 139–42, 153–6 (critical commentary on Mecelle articles 2, 4, 17, 19 and 36). For other divisions, see, for example, Jala¯ l al-Dı¯n al-Suyu¯t․¯ı, al-Ashba¯ h wa-l-naz ․a¯ʾir, ed. Muh․ ammad al-Muʿtas․im biʾlla¯ h al-Baghda¯ dı¯ (Beirut: Da¯ r al-Kita¯ b al-ʿArabı¯, 1998), 35, 201, 299, 337; Maka¯ rim-Shı¯ra¯ zı¯, al-Qawa¯ʿid al-fiqhiyya, 1:26–7. 58 For recent works on maqa¯․sid, see M. Khalid Masud, Islamic Legal Philosophy: A Study of Abu¯ Ish․a¯ q al-Sha¯․tibı¯’s Life and Thought (Delhi, India: International Islamic Publishers, 1989), Jasser Auda, Maqa¯․sid al-Sharı¯ʿah as Philosophy of Islamic Law: A Systems Approach (London: The International Institute of Islamic Thought, 2008); Idris Nassery et al., eds., The Objectives of Islamic Law: The Promises and Challenges of the Maqa¯․sid al-Sharı¯ʿa (Lanham, MD: Lexington Books, 2018). 59 For example, one author categorizes legal canons as ‘part of the maqa¯․sid genre’. Mohammed, ‘Islamic Law Maxims’, 194. In my view, this categorization does not accord with their historical treatment. 60 For discussion, see my ‘The Islamic Rule of Lenity: Judicial Discretion and Legal Canons,’ Vanderbilt Journal of Transnational Law 44, no. 5 (2011): 1299–1351, 1331–33. ¯ l Ka¯ shif al-Ghit․a¯ ʾ, Tah․rı¯ r al-Majalla, 1:122–3. 61 See Mah ․ mas․a¯ nı¯, Falsafat al-Tashrı¯ʿ, 219; A 62 For a similar assessment with respect to modern debates in Islamic law, see Jackson, ‘Maqâsid AlSharîʿah in the Modern World’, 1476. 247

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63 For discussion of the ways in which some contemporary Muslim scholars and political leaders reference the maqa¯․sid as broad-based ethical tools for law reform, see David L. Johnson, ­‘Maqa¯․sid al-Sharı¯ʿah: Epistemology and Hermeneutics of Muslim Theologies and Human Rights,’ Die Welt des Islams 47 (2007), 149–87. 64 See Mah․ mas․a¯ nı¯, Falsafat al-Tashrı¯ʿ, 219–20 (adding ‘avoiding harm’ to this short formulation in noting that all five universal objectives are founded on the principle of maximizing benefit and avoiding harm: mabniyya ʿala¯ jalb al-mana¯ fiʿ li-l-na¯ s wa-darʾ al-mafa¯ sid) (citing, among others, Ibn al-Qayyim: ‘Sharı¯ʿah is based on ․h ikam and mas․a¯ lih․ al-ʿiba¯ d in this life and the next. It is all aimed at justice, mercy, wisdom. Every matter that diverges from justice to oppression or from mercy to its opposite or from benefit to harm, or from wisdom to ʿabath, is not Sharı¯ʿah, even if it is called Sharı¯ʿah by interpretation (wa-in udkhilat fı¯ ha¯ bi-l-taʾwı¯ l). Sharı¯ʿah is the justice of God between people, his mercy between people’). Most interpretation-minded jurists agreed on this point, though strict textualists, such as Z ․ a¯ hirı¯ jurists, rejected it and other canons or principles. For further discussion, see al-ʿIzz Ibn ʿAbd al-Sala¯ m (d. 660/1262), al-­Qawa¯ ʿid al-kubra¯ (also called Qawa¯ ʿid al-ah․ ka¯ m fı¯ mas․a¯ lih․ al-ana¯ m, ed. Nazı¯ h Kama¯ l ­H ․ amma¯ d and ʿUthma¯ n Jumuʿa D ․ umayriyya (Damascus: Da¯ r al-Qalam, 2000), 1:5–6 and passim (identifying Islamic law’s overarching purpose as: tah․ qı¯q mas․a¯ lih․ al-ʿiba¯ d); cf. Khaled Abou El Fadl, ­Reasoning with God: Reclaiming Shariʿah in the Modern Age (London: Rowman and ­Littlefield, 2014), xxxxii. 65 No one has counted the canons in the various schools. Khaleel Mohammad says they are in the hundreds (‘Islamic Law Maxims’, 192), and the literature suggests that a combined count would be much more. For example, the H ․ anafı¯ jurist Dabu¯sı¯ (d. 430/1039) had already listed 86 in his Taʾsı¯s al-naz ․ar in the 11th century; the later H ․ anafı¯ jurist Ibn H ․ amza al-H ․ usaynı¯ (d. 1305/1887) listed 251 in his Fara¯ʾid al-bahiyya. The jurist ʿAbd al-Wahha¯ b al-Baghda¯ dı¯ (d. 476/1083) in his al-Majmu¯ʿ wa-l-furu¯q discussed 96; Ima¯ mı¯ scholar Muh․ ammad Ka¯․z im al-­Mus․․t afawı¯ in his al-­ Qawa¯ʿid: miʾat qa¯ʿida fiqhiyya maʿnan wa-madrakan wa-mawridan lists hundreds. Moreover, the recent compendia collecting legal canons are multi-volume works collecting from dozens to thousands of canons each. See, for example, Bu¯rnu¯, Mawsu¯ʿa (13 vols, with 3,250 unique canons); Tashkı¯rı¯ et al. (3 vols., with 290 canons), Qawa¯ʿid (9 vols); Bujnu¯rdı¯, al-Qawa¯ ʿid al-fiqhiyya (7 volumes, with 63 canons). 66 See Tashkı¯rı¯ et al., Qawa¯ʿid, 11–12 (qa¯ʿidat al-fara¯ gh: kull ․sala¯ t aw ʿamal shukka fı¯ ․sih․․hatih baʿd alfara¯ gh minhu fa-huwa mah․ku¯m bi-l-s․ih ․․ha). 67 Bujnu¯rdı¯, Qawa¯ʿid, 4:189 (al-shart․ al-fa¯ sid laysa bi-mufsid li-l-ʿaqd). 68 Bu¯rnu¯, Mawsu¯ʿa, 38 (kull muskir ․hara¯ m). See also Bujnu¯rdı¯, Qawa¯ʿid, 5:307 (kull muskir ma¯ʾiʿ bi-las․a¯ la fa-huwa najis). 69 Bu¯rnu¯, Mawsu¯ʿa, 58 (kull shayʾ kuriha akluh wa-l-intifa¯ʿ bih ʿala¯ wajhin min al-wuju¯h, fa-shira¯ʾuh wabayʿuh makru¯h …). 70 On these categories from jurisprudence and the relationship between law and religion in Islamic contexts, see Mottahedeh, Lessons in Islamic Jurisprudence, 2–4, 25–7. 71 Us․u¯l has many meanings and has evolved over time. Aside from using us․u¯l to signify the sources or methods of Islamic jurisprudence, as in us․u¯l al-fiqh, early Muslim jurists used the term to refer to what later jurists labelled qawa¯ʿid, ․dawa¯ bit․, ah․ka¯ m and other presumptions of law or even theology. The best example is the list of varied sayings called us․u¯l in Abu¯ al-H ․ asan al-Karkhı¯’s Us․u¯l, published in Taʾsı¯ s al-naz ․ar by Abu¯ Zayd al-Dabu¯sı¯, ed. Mus․․t af a¯ Muh․ ammad al-Qabba¯ nı¯ al-Dimashqı¯ (Beirut: Da¯ r Ibn Zaydu¯n, n.d.). Karkhı¯’s book has recently been translated by Munir Ahmad Mughal in Islamic Legal Maxims: Consisting of Al-Karkhi’s Al-‘Usul (n.p., Istinarah Press, 1438/2017), 61–91 (to be used with caution). In addition, contemporary Shı¯ʿı¯ jurists use the term to mean ‘procedural principles’ or ‘presumptions’. The most prominent elaboration of this sense of us․u¯l appears in Muh․ ammad Ba¯ qir al-S․adr’s Duru¯s fı¯ ʿilm al-us․u¯l, published in English by Roy Mottahedeh as Lessons in Islamic Jurisprudence (Oxford: Oneworld Publications, 2003). I include the term in this header in the latter sense. 72 Ba¯ H ․ usayn, Qawa¯ʿid, 63–4 (defining ․dawa¯ bit․ fiqhiyya). 73 See above, notes 38–45, and accompanying text. 74 For contrasting studies on the origins of the paternity canon, see Schacht, Origins of Muhammadan Jurisprudence, 181–8 (arguing that the paternity canon originated with Roman law and transferred to the Iraqis before Islam’s advent or else in the second/eighth century, and that it was introduced as a hadith in the generation preceding Ibra¯ hı¯m b. Saʿd (a contemporary of Ma¯ lik (d. 179/795)), who was responsible for putting the canon in the form of a hadith report); Harald Motzki, H ․ adı¯ th: ­O rigins 248

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and Developments (London: Ashgate, 2004), xlv (offering a general overview); Harald Motzki, The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools, trans. Marion Katz (Leiden: Brill, 2001), 91, 125–7 (noting that several early jurists quoted the canon as an early legal opinion or a prophetic dictum, including Ibn Jurayj quoting ʿAt․a¯ʾ, Ma¯ lik in his Muwat․․taʾ, and ʿAbd al-Razza¯ q in his Mus․annaf, while acknowledging that it may also have been in pre-Islamic usage by the judge Aktham b. S․ayfı¯ ); Motzki, ‘The Mus․annaf of ʿAbd al-Razza¯ q al-S․anʿa¯ nı¯’, 18. For additional origins studies of this canon, see Crone, Roman, Provincial and Islamic Law, 10, 96ff; G. H. A. Juynboll, ‘Some Notes on Islam’s First Fuquha¯ʾ [sic] Distilled from Early H ․ adı¯ th Literature’, Arabica 39 (1992), 287–314; Uri Rubin, ‘Al-Walad li al-fira¯ sh,’ Studia Islamica 78 (1993), 5–26; Ella Landau-Tasseron, ‘Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic societies’, Bulletin of School of Oriental and African Studies 66 (2003), 176–80. 75 Among Sunni jurists, including late H ․ anafı¯s, see Mah ․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 223–4; for Shiʿi jurists, see Bujnu¯rdı¯, Qawa¯ʿid, 1:135. 76 See Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 223. 77 See Harald Motzki, ‘Wal-muh․sana¯ tu mina n-nisʾi illa¯ ma¯ malakat aima¯ nukum (Koran 4:24) und die koranische Sexualethik’, Der Islam, 63 (1986), 192–218. See also my Doubt in Islamic Law, 50–1 n. 6, 151–52 n. 78. 78 Muh․ ammad b. Khalaf b. H ․ ayya¯ n Wakı¯ʿ, Akhba¯ r al-qud․a¯ t, ed. Saʿı¯ d Muh․ ammad al-Lah․ h․ a¯ m (Beirut: ʿA¯ lam al-Kutub, 2001), 382: bayʿ al-ama ․tala¯ quha¯ . 79 Wakı¯ʿ, Akhba¯ r al-qud ․a¯ t, 468: al-nika¯․h bi-yad al-sayyid, wa-l-t․ala¯ q bi-yad al-ʿabd. 80 See generally Ba¯ H ․ usayn, Qawa¯ʿid. 81 See Bujnu¯rdı¯, al-Qawa¯ʿid al-fiqhiyya, 135 (explaining that interpretive canons are for the mujtahid rather than the muqallid). 82 On ‘ordinary meaning’ and ‘objectified intent’ in American law, see Scalia and Garner, Reading Law, 69–77 (defining the ‘ordinary-meaning canon’ as follows: ‘Words are to be understood in their ordinary, everyday meanings – unless the context indicates that they bear a technical sense’); John Manning, ‘Textualism and Legislative Intent’, Virginia Law Review 91 (2005), 424 (defining ‘objectified intent’ as the ‘import that a reasonable person conversant with applicable social and linguistic conventions would attach to the enacted words’ that textualists typically apply); Ryan D. Doerfler, ‘Who Cares How Congress Really Works’, Duke Law Journal 66 (2017), 983 (building on notions of objectified intent through analyses in linguistic philosophy with emphasis on context as information salient to both author and audience). 83 For discussion, see, e.g., Tashkı¯rı¯ et al., Qawa¯ʿid, 28–31 (thubu¯t al-h․aqı¯ qa al-sharʿiyya: presumption of literal meaning in Islamic law), 32–4 (al-mushtaqq ․haqı¯ qa fı¯ al-multabis wa-maja¯ z fı¯ ghayrih: derivative words are to be taken literally when in doubt about their meaning, and otherwise [they are to be taken] figuratively [as appropriate]), 38–42 (ʿala¯ ma¯ t al-h․aqı¯ qa: indications of literal meaning), 42 (as․a¯ lat al-z ․uhu¯r: presumption of apparent or prima facie meaning). 84 See Mecelle, art. 36 (al-ʿa¯ da muh ․akkima [or muh․akkama]) (discussed, for instance, in Kamali, ‘Legal Maxims’, 87–8). 85 Mecelle, art. 40 (al-h․aqı¯ qatu tutrak bi-dala¯ lat al-ʿa¯ da); art. 43 (al-maʿru¯f ʿurfan ka-l-mashru¯․t shart․an). For discussion, see, e.g., Khaleel, ‘Islamic Law Maxims’, 89–90; Kamali, ‘Legal Maxims’, 88–9. 86 See Khaleel, ‘Islamic Law Maxims’, 89–90; Kamali, ‘Jurisprudence’, 373. 87 Kamali, ‘Legal Maxims’, 88–9. 88 In the vast us․u¯l al-fiqh literature specifying grammatical rules of interpretation, among other rules, two notable examples that address Sunni and Shiʿi law, respectively, and that are available in ­English are Bernard Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dı¯ n al-A¯midı¯ (Salt Lake City: University of Utah, 1992) (a translation and exposition of Sayf al¯ midı¯’s al-Ih․ka¯ m fı¯ us․u¯l al-ah․ka¯ m); Mottahedeh, Lessons in Islamic Jurisprudence (a translation Dı¯n al-A and commentary on Muh․ ammad Ba¯ qir al-S․adr’s, Duru¯s fı¯ ʿilm al-us․u¯l). 89 See, e.g., Bu¯rnu¯, Mawsu¯ʿa, 39 (la¯ ijtiha¯ d maʿa al-nas․․s); Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 225–26 (la¯ masa¯ gha li-l-ijtiha¯ d fı¯ mawrid al-nas․․s); Tashkı¯rı¯ et al., Qawa¯ʿid, 425–75 (section on: taqdı¯m al-nas․․s ʿala¯ al-z ․a¯ hir; tah․kı¯m al-nas․․s ʿala¯ al-z ․a¯ hir); Kamali, ‘Legal Maxims,’ 81 (‘ijtiha¯ d does not apply in the presence of nas․․s [text]’). 90 Many canons on custom relate to the universal canon regarding it: ‘custom has legal authority: alʿa¯ da muh․akkima [or muh․akkama]’ (Mecelle, art. 36). For discussion of subsidiary canons, see Kamali, ‘Legal Maxims,’ 88–89: ‘what is determined by custom is tantamount to a contractual stipulation: al-maʿru¯f ʿurfan ka-l-mashru¯․t shart․an’ (Mecelle, art. 43). 91 Bu¯rnu¯, Mawsu¯ʿa, 28 (al-ijtiha¯ d la¯ yunqad ․ bi-mithlih). 249

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92 On the primacy of divine legislative supremacy in Islamic law, see my Doubt in Islamic Law, 104–14; idem, ‘The Islamic Rule of Lenity’, 1316–23. 93 See Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 233. 94 Ibid., 222 (citing Mecelle, arts. 37 and 39, respectively: istiʿma¯ l al-na¯ s ․hujja yajib al-ʿamal biha¯ and la¯ yunkar taghayyur al-ah․ka¯ m bi-taghayyur al-azma¯ n, and the papers of the Preparatory Committee for the Mecelle stating that that ‘changes over time change legal rulings, requiring that [new rulings] be based on ʿurf [custom] and ʿa¯ da [practice]’). 95 In fact, one Shiʿi jurist has suggested that early accommodation for analogical reasoning and equitable principles facilitated the development of the field of legal canons in Sunni law much earlier than Shiʿi law. Bujnu¯rdı¯, al-Qawa¯ʿid al-fiqhiyya, 9. 96 Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 235. See Mecelle, art. 36 (al-ʿa¯ da muh․akkima [or muh․akkama]) (cited above, note 74), art. 39 (la¯ yunkar taghayyur al-ah ․ka¯ m bi-taghayyur al-azma¯ n) (cited above, note 77). 97 See Qurʾan 9:60 ( fuqara¯ʾ, masa¯ kı¯n, ʿa¯ milı¯n ʿalayha¯ , muʾallafat qulu¯buhim, fı¯ al-riqa¯ b, gha¯ rimı¯n, fı¯ sabı¯l Alla¯ h, ibn al-sabı¯l). 98 Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 227–8 (discussing divergent opinions among various schools on this notion). 99 Ibid., 235–6 (citing Abu¯ Yu¯suf, Kita¯ b al-Khara¯ j, 46). 100 See, e.g., ibid., 219–20 (citing Asnawı¯, Sharh ․ al-Mana¯ hij, 3:108: al-as․l fı¯ al-mana¯ fiʿ al-iba¯․ha wa-fı¯ al-mafa¯ sid al-manʿ (the principle in matters of benefit is permissibility and in harm prohibition)); Khaleel, ‘Islamic Law Maxims’, 202 (discussing al-as․l bara¯ʾat al-dhimma and al-as․l fı¯ al-abd․a¯ʿ altah․rı¯m); Kamali, ‘Legal Maxims’, 84. 101 For an introduction, see S․adr, Duru¯s fı¯ ʿilm al-us․u¯l, in Mottahedeh (trans.), Lessons in Islamic Jurisprudence, 119–33, 165–9. See also Tashkı¯rı¯ et al., Qawa¯ ʿid, 351–424 (discussing 11 procedural presumptions). 102 See, e.g., Maka¯ rim-Shı¯ra¯ zı¯, Qawa¯ʿid, 52. He also notes (p. 22) the differences between jurisprudential subjects and legal canons subjects – and that discussions of ․h ujjiyyat al-istis․․h a¯ b fı¯ ʾ-l-shubaha¯ t al-mawd․u¯ʿiyya or al-bara¯ʾa or waʾl-ih․tiya¯․t al-ja¯ riyata¯ n fı¯ ha¯ are the latter because they yield individual rulings and obligations (ah․ka¯ m and waz ․aʾif shakhs․iyya), not general principles for deriving them. 103 See Hossein Modarressi, Theology of Delegation, Lecture at Yale Law School (unpublished remarks) (7 April 2015). 104 For discussion in the context of Shı¯ʿı¯ ‘dueling theories of delegation and interpretation’, see my Doubt in Islamic Law, 260–315, and on the partial-H ․ anbalı¯ and Z ․ a¯ hirı¯ rejection of legal canons, see ibid., 229–59. 105 For further discussion, see above, note 103, and my ‘Islamic Rule of Lenity,’ 1315–23. 106 Mecelle, art. 76: al-bayyina ʿala¯ al-muddaʿı¯ wa-l-yamı¯n ʿala¯ man ankar. 107 Ibid., art. 69: al-khit․a¯ b kaʾl-kita¯ b. For discussion, see, e.g., Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 328–9. 108 Mecelle, art. 5: al-as․l baqa¯ʾ ma¯ ka¯ na ʿala¯ ma¯ ka¯ na. 109 Ibid., art. 10: ma¯ thabata bi-zama¯ n yuh․kam bi-baqa¯ʾih ma¯ lam yu¯jad dalı¯l ʿala¯ khila¯ fih. 110 See Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 329: al-qadı¯m yutrak ʿala¯ qidamih (citing Mecelle, art. 6) and al-as․l anna ma¯ ka¯ na qadı¯man yutrak ʿala¯ ․ha¯ lih wa-la¯ yughayyar illa¯ bi-h․ujja (explaining that this canon functions as a tie-breaker in favour of the pre-existing legal status when competing claimants provide evidence of a new status and a preexisting status that are equally probative; and further specifying that claims of legal change must be unassailable). 111 Mecelle, art. 7: al-d ․arar la¯ yaku¯n qadı¯man. 112 For an argument that judges exhibit a tendency to value continuity over change, as observes in American law, see David L. Shapiro, ‘Continuity and Change in Statutory Interpretation,’ New York University Law Review 67 (1992): 921–60. 113 Bu¯rnu¯, Mawsu¯ʿa, 57 (kull man lahu ․haqq fa-huwa lahu ʿala¯ ․ha¯ lih ․hatta¯ yaʾtı¯h al-yaqı¯n ʿala¯ khila¯ f dha¯ lik). 114 See my Doubt in Islamic Law, 135–225. 115 Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 349: yuqbal qawl al-mutarjim mut․laqan (citing Mecelle, art. 71; Ibn Nujaym, Ashba¯ h, 51). 116 Mah․ mas․a¯ nı¯, Falsafat al-Tashrı¯ʿ, 351: idha¯ ʿalima al-h․a¯ kim ․sidq al-sha¯ hid al-wa¯․hid, yaju¯z lah an yah․kum bih (citing Ibn al-Qayyim, T ․ uruq, 72, 75–8; Abu¯ Da¯ wu¯d, Sunan, 3:308, no. 3607). 117 Mecelle, art. 1140: al-ama¯ ra al-ba¯ ligha ah․ad asba¯ b al-h ․ukm. For further discussion of the use of circumstantial evidence, see Hossein Modarressi, ‘Circumstantial Evidence in the Administration of Islamic Justice’, in Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (Cambridge, MA: ILSP/Harvard University Press, 2017), 23–46. 250

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118 Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 373. See also Mecelle, art. 1140–1. 119 See Rabb, Doubt in Islamic Law, 1–2. 120 See Modarressi, ‘Circumstantial Evidence’, 18–19. For further discussion of and restrictions on this canon, especially among later Sunni jurists, see Baber Johansen, ‘Signs as Evidence: The Doctrine of Ibn Taymiyya (1263–1328) and Ibn Qayyim al-Jawziyya (d. 1351) on Proof ’, Islamic Law and Society 9, no. 2 (2002), 175–6; Intisar A. Rabb, ‘The Curious Case of Bughaybigha’, in Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Balbale (Cambridge, MA: ILSP/Harvard University Press, 2017), 42–3. 121 Mecelle, art. 80: La ․hujja maʿa al-tana¯ qud ․. 122 See Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 376 (citing Mecelle, art. 80, and noting that if a judge issues a judgment on the basis of the initial testimony before retraction, the two witnesses are liable for any harm or damages caused). 123 See ibid., 376. Note that this approach was not universal. For example, Ma¯ likı¯s and others accepted various types of circumstantial evidence, including pregnancy as conclusive evidence of an unmarried woman having committed a sex crime, and drunkenness or the smell of alcohol on the breath as sufficient evidence to establish the crime of drinking. See ibid., 374–5; Rabb, Doubt in Islamic Law, 115–17, 159, 251. 124 See section 2.2 ‘Interpretive canons’, above pages 231–34. 125 Wakı¯ʿ, Akhba¯ r al-qud․a¯ t, 87: la¯ yuʾaddı¯ Muslim dam ka¯ fir. 126 Ibid., 481 (contested canon). 127 For discussion of evidentiary disparities between men and women’s court testimony, see Mohammad Fadel, ‘Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought’, International Journal of Middle East Studies 29 (1997), 185–204. 128 Wakı¯ʿ, Akhba¯ r al-qud ․a¯ t, 210: laysa bayn al-ʿabı¯d qis․a¯․s. 129 Ibid., 116: aqı¯lu¯ dhawı¯ al-hayaʾa¯ t zalla¯ tihim. For discussion, see my Doubt in Islamic Law, 79–88, 97–8. 130 For general discussion of the phenomenon (albeit without explicit reference to legal canons), see, for instance, Tillier, Les Cadis dʿIraq, 138–86. 131 See Eskridge, Interpreting Law, 12. 132 See Bu¯rnu¯, 1:52–53. 133 Bu¯rnu¯, 1:52. 134 Bu¯rnu¯, Mawsu¯ʿa, 52–53. See also Mah․ mas․a¯ nı¯, Falsafat al-tashrı¯ʿ, 255–56 ( jawa¯ z al-tashrı¯ʿ min qibal al-sult․a¯ n). 135 Mecelle, art. 58: al-tas․arruf ʿala¯ al-raʿiyya manu¯․t bi-l-mas․lah ․a. 136 See Murteza Bedir, ‘From Fikih to Law: Secularization Through Curriculum’, Islamic Law and Society 11 (2004), 283, 384–5 (noting that he ‘accepted the Young Ottoman idea that fikih is compatible with modern needs and that it therefore is perfectly reasonable to codify it as a “code” but that the idea was really a “conceptual innovation, arguably the most important departure ever made from the traditional understanding of fiqih” that effectively transformed a purely jurists’ law to state law’). 137 See, e.g., Ba¯ H ․ usayn, Qawa¯ʿid, 153. 138 Ibid. (defining these canons as ‘administrative rules’ governing the relationship between the state and the people). 139 See, for example, Eskridge, Interpreting Law, 12 and passim. Compare Jane Schacter, ‘The Changing Structure of Legitimacy in Statutory Interpretation’, Harvard Law Review 108 (1995): 593–663. 140 Mecelle, art. 16 (al-ijtiha¯ d la yunqad ․ bi-mithlih). 141 Kamali, ‘Legal Maxims’, 90. 142 Bu¯rnu¯, Mawsu¯ʿa, 28 (al-ijtiha¯ d la¯ yunqad․ bi-mithlih), 39 ( fa-la¯ yumkin an tustaqarr al-ah․ka¯ m). 143 For recent English-language works discussing Islamic legal canons, see Khadiga Musa, ‘Legal Maxims as a Genre of Islamic Law’, Islamic Law and Society 21 (2014), 325–65; Kamali, ‘Legal Maxims’, 77–101; Muh ․ awa¯ id ․ aqqiq Da¯ ma¯ d, ‘Islamic Juridical Principles’, 89–107; Heinrichs, ‘K Fik ․ hiyya’, Schacht, Origins of Muhammadan Jurisprudence, 180–9 (chapter 6 on ‘legal maxims’). For my works on the topic, see my ‘Islamic Legal Maxims as Substantive Canons of Construction’, 63–125; idem, ‘The Islamic Rule of Lenity’, 1299–1351; idem, ‘Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear’, in Law and Tradition in Classical Islamic Thought, ed. Michael Cook et al. (New York: Palgrave, 2013), 145–66; idem, Doubt in Islamic Law; and idem, ‘The Curious Case of Bughaybigha’, 23–46, esp. 27–8, 40–4. The source in Arabic, Bahasa, Persian, and Turkish of the past 4 to 5 decades are even more extensive. 251

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144 See Hossein Modarressi, ‘The Legal Basis for the Validity of the Majority Opinion in Islamic Legislation’, Under Siege: Islam and Democracy (Conference Proceedings), ed. Richard Bulliet (New York: Middle East Institute, Columbia University, 1993), 81–92, esp. 82–6. The chapter in question was published from a paper delivered at the John M. Olin Center for Inquiry into the Theory and Practice of Democracy in the University of Chicago in 1985. 145 See, e.g., the scholars and sources listed in notes 146–149 below. 146 Bu¯rnu¯, Mawsu¯ʿa, 77–92 (noting that jurists cited legal canons to provide rationales for rulings or preference for earlier but conflicting opinions (aqwa¯ l), citing and providing examples from the works of Ka¯ sa¯ nı¯, Qa¯ d․¯ı Kha¯ n, Shiha¯ b al-Dı¯n al-Qara¯ fı¯, Ima¯ m al-H ․ aramayn al-Juwaynı¯, Nawawı¯, Ibn Taymiyya, Ibn al-­Qayyim and others). 147 See, for instance, Bu¯rnu¯, Mawsu¯ʿa, 30–1. 148 See, for instance, the sources listed in notes 37 and 61. 149 For discussion, see, for instance, Dawood Ahmed and Tom Ginsburg, ‘Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions’, Virginia Journal of International Law 54 (2014), 615–95 (discussing the origins of Sharı¯ʿah clauses); Intisar A. Rabb, ‘Least Religious Branch? Judicial Review and the New Islamic Constitutionalism’, UCLA Journal of International and Foreign Affairs 17 (2013), 72–132, nn. 1 and 17 (listing countries with ‘Sharı¯ʿa clauses’). 150 See my Doubt in Islamic Law, 320–21. 151 These trends present themselves most starkly and to most deleterious effect in Islamic criminal law. My critique centres on the modernist resurgence of Islamic criminal law. See my Doubt in Islamic Law, 317–20. There, I noted that a characteristic feature of its resurgence is a nostalgia among Muslims seeking political power and social control. They assert that Islamic criminal law, specifically, ensured order and adherence to the moral values that helped Muslims prosper in the past. These assertions are poorly reasoned and ahistoric. Nevertheless, appeals to an imagined golden era of Islamic ascendancy that was marked by control over criminal law brings symbolic legitimacy to actors in some West African countries, to name one example, like Northern Nigeria – however draconian and removed from the legal texts or historical practice their version of Islamic criminal law tends to be. In short, these actors seek to enforce criminal laws marked by harsh laws on the books and broad enforcement of punishment, and do not account for the operation of the doubt canon or other legal canons that were key to the historical definitions and practice of Islamic criminal law and procedure. For further analysis of Islamic criminal law in Northern Nigeria, see Luqman Zakariyah, Legal Maxims in Islamic Criminal Law: Theory and Applications (Leiden: Brill, 2015); idem, “Confession and Retraction: The Application of Islamic Legal Maxims in Safiyyatu and Amina’s Cases in Northern Nigeria,” Journal of Muslim Minority Affairs, 30, no 2 (2010): 251–63. 152 For Ma¯ likı¯ s, Muh․ ammad al-Ru¯kı¯ wrote al-Qawa¯ʿid al-fiqhiyya min khila¯ l Kita¯ b al-Ishra¯ f ʿala¯ masa¯ʾil al-khila¯ f li-l-Qa¯․d¯ı ʿAbd al-Wahha¯ b al-Baghda¯ dı¯ al-Ma¯ likı¯ (Damascus: Da¯ r al-Qalam, 1998). Other important Ma¯ likı¯ works include ʿA¯dil b. ʿAbd al-Qa¯ dir b. Muh․ ammad Walı¯ Qu¯ta, al-Qawa¯ʿid wa-l-d․awa¯ bit․ al-fiqhiyya al-Qara¯ fiyya: zumrat al-tamlı¯ ka¯ t al-ma¯ liyya (Beirut: Da¯ r al-Ba¯ sha¯ʾir al-Isla¯ miyya, 2004); Saʿdana¯ b. Aʿal Sa¯ lim, Taysı¯ r al-mara¯ jiʿ wa-l-mada¯ rik li-­ qawa¯ʿid madhhab al-Ima¯ m Ma¯ lik: Qira¯ʾa ․h adı¯ tha fı¯ qawa¯ʿid al-fiqh al-Ma¯ likı¯ (al-ʿAyn, UAE: Da¯ r Yu¯suf b. Ta¯ shifı¯n wa-Maktabat al-Ima¯ m Ma¯ lik, 2007) and ʿAbd Alla¯ h al-Hila¯ lı¯, al-Taqʿı¯ d al-fiqhı¯ ʿinda al-Qa¯․d¯ı ʿAbd al-Wahha¯ b al-Baghda¯ dı¯ al-Ma¯ likı¯ : al-qawa¯ʿid al-fiqhiyya al-mumayyaza li-fiqh al-Ma¯ likiyya nam¯u¯dhajan (Fez, Morocco: Mat․baʿat A¯ nfu¯, 2004). In H ․ anbalı¯ law, the 17th–19th centuries run of legal canons literature ended with a H ․ anafı¯ jurist, Ah․ mad b. ʿAbd Alla¯ h al-Qa¯ rı¯ (d. 1359/1940), who wrote a commentary on the Mecelle according to the H ․ anbalı¯ school called Majallat al-ah․ka¯ m al-sharʿiyya ʿala¯ madhhab al-Ima¯ m Ah․mad b. H ․ anbal. Perhaps having had their interest piqued by this intervention, H ․ anbalı¯ jurists then published several works on legal canons, including Saʿdı¯ ’s (d. 1376/1956–7), Risa¯ la fı¯ ʾl-qawa¯ʿid al-fiqhiyya, al-Qawa¯ʿid wa-l-us․u¯l al-ja¯ miʿa wa-al-furu¯q wa-l-taqa¯ sı¯ m al-badı¯ʿa al-na¯ fiʿa and his T ․ arı¯ q al-wus․u¯l ila¯ ʿilm al-maʿmu¯l bi-maʿrifat al-d ․awa¯ bit․ wa-l-qawa¯ʿid wa-l-us․u¯l. More recently, Na¯․s ir b. ʿAbd Alla¯ h b. ʿAbd al-ʿAzı¯z al-Mayma¯ n published al-Kulliyya¯ t al-fiqhiyya fı¯ al-madhhab al-H ․ anbalı¯ (Mecca, Saudi Arabia: n.p., 1424/[2003–4]). 153 Saʿı¯ d al-Sha¯ wı¯ recently published a work on legal canons in Sha¯ fiʿı¯ law entitled Maqa¯․sidiyyat al-­ qawa¯ʿid al-fiqhiyya min khila¯ l Kita¯ b Qawa¯ʿid al-ah․ka¯ m fı¯ is․la¯․h al-ana¯ m li-ʿIzz al-Dı¯n b. ʿAbd al-Sala¯ m (Cairo: Da¯ r al-Kalima, 2015). Likewise, Muh․ ammad ʿUmaym al-Ih․ sa¯ n al-Mujaddidı¯ published Qawa¯ʿid al-fiqh with some 426 H ․ anafı¯ canons (Pakistan: n.p., 1986) and Mus․․t afa¯ Mah․ mu¯d Azharı¯ 252

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published a commentary on an earlier H ․ anafı¯ text on legal canons, Sharh․ Qawa¯ʿid al-Kha¯ dimı¯ (Riyadh: Da¯ r Ibn al-Qayyim, 2013). 154 A few of the more notable works include Muh ․ ammad H ․ usayn Yazdı¯ (d. 1329/1911), al-Qawa¯ʿid al-fiqhiyya (unpublished manuscript); Mahdı¯ b. H ․ usayn b. ʿAzı¯z al-Kha¯ lis․¯ı al-Ka¯․z imı¯ (d. 1343/1924), ¯ l Ka¯ shif Ghit․a¯ʾ (d. 1373/1954), Tah al-Qawa¯ʿid al-fiqhiyya (unpublished manuscript); A ․rı¯r al-Majalla (a commentary on the Mecelle, discussed above); Bujnu¯rdı¯ (d. 1395/1975), al-Qawa¯ʿid al-fiqhiyya (also discussed above); Muh ․ ammad Fa¯․dil Lankara¯ nı¯, al-Qawa¯ʿid al-fiqhiyya (Qum, Iran: Mihr, 1416 [1995]); Muh ․ ammad al-Kha¯ minaʿı¯, Lamah ․a¯ t ʿala¯ al-qawa¯ʿid al-fiqhiyya fı¯ al-ah ․a¯ dı¯th al-Ka¯․zimiyya (Tehran: n.p., 2005); Muh ․ aqqiq Da¯ ma¯ d, Qava¯ʿid-i fiqh (Persian, with Arabic translation, in four parts; discussed above); and Muh ․ ammad Ka¯․z im al-Mus․․t afawı¯, al-Qawa¯ʿid: miʾat qa¯ʿida fiqhiyya maʿnan wa-madrakan wa-mawridan (Qum, Iran: Muʾassasat al-Nashr al-Isla¯ mı¯, 1412/[1991–2]). 155 See, for instance, works featuring first-time treatises on legal canons in Iba¯ d․¯ı law (the majority tradition in Oman and present in parts of East and North Africa): Mah․ mu¯d Mus․․t afa¯ ­ʿAbbu¯d ­Harmu¯sh, Muʿ jam al-qawa¯ʿid al-fiqhiyya al-Iba¯․diyya, ed. Rid․ wa¯ n al-Sayyid (Muscat, Oman: ­Wiza¯ rat al-Aqwa¯ f wa-l-Shuʾu¯n al-Isla¯ miyya, 2010); Mus․․t afa¯ b. H ․ amw Arshu¯m, al-Qawa¯ʿid al-fiqhiyya ʿinda al-Iba¯․diyya (Muscat, Oman: Wiza¯ rat al-Aqwa¯ f wa-l-Shuʾu¯n al-Isla¯ miyya, 2013). For other studies on legal canons in this vein, see works by authors such as Ba¯ H ․ usayn, Bu¯rnu¯ and Motzki – all discussed above. 156 For a brief discussion of such developments, see my Doubt in Islamic Law, 317–21. 157 Bu¯rnu¯, Mawsu¯ʿa, 30. On critiques of and theories designed to explain Islamic legal casuistry, see ‘Baber Johansen, Casuistry: Between Legal Concept and Social Praxis’, Islamic Law and Society 2, no. 2 (1995): 135–56. 158 See ibid., 30–1 (h․ulu¯l masa¯ʾil fiqhiyya). 159 See ibid., 31. 160 Bujnu¯rdı¯ presented the lingering question this way: ‘Do legal canons play a role in the process of interpretation (ʿamaliyyat al-istinba¯․t)? Are they restricted to [retrospectively] collecting or restating scenarios from substantive law from the past, or, alternatively, did they serve to [prospectively] expand the scope of substantive law in gathering those past scenarios such that they can now used to determine how to interpret and construct Islamic legal rulings (kayfiyyat al-istinba¯․t)?’ Bujnu¯rdı¯, al-Qawa¯ʿid al-fiqhiyya, 14–15. 161 Consider the perspectives of Ibn Nujaym, Mus․․t afa¯ Zarqa¯ and other scholars of legal canons, medieval and modern – who consider canons to be the by-product of individual cases, and to be filled with exceptions, and therefore, at most, to be sufficient as statements meant to bolster rulings in probative texts but insufficient as bases for a new rulings. See, e.g., Bu¯rnu¯, Mawsu¯ʿa, 44–7 (discussing reliance on Islamic legal canons to produce new legal rulings: ․hukm istidla¯ l biʾl-qawa¯ʿid al-­fi qhiyya ʿala¯ al-ah․ka¯ m). 162 This scholar specifically notes that, in his estimation, canons that restate rulings from the foundational texts could serve as bases for new rulings while canons that do not could not. At the same time, he acknowledges that other jurists accept rulings based on rational principles laid out in the foundational texts – including the use of logic, public interest and custom—and that, for them, a wider swathe of canons could also be authoritative. Bu¯rnu¯, Mawsu¯ʿa, 47–9. 163 This observation was the major point of my book on legal canons in the context of criminal law. See, generally, my Doubt in Islamic Law. 164 Maka¯ rim-Shı¯ra¯ zı¯, Qawa¯ʿid, 17: ukawwin dharı¯ʿa li-l-wus․u¯l ila¯ ah․ka¯ m kathı¯ra min awwal al-fiqh ila¯ a¯ khirih. 165 Lajna ʿIlmiyya fı¯ al-H ․ awza al-Dı¯niyya bi-Qum, al-Qawa¯ʿid al-us․u¯liyya wa-l-fiqhiyya, 18–19. 166 Da¯ ma¯ d, Qava¯ʿid-i fiqh, 1–2 (noting, for example, that many modern legal rulings and opinions issue from the universal legal canon ‘no harm’). 167 Bujnu¯rdı¯, al-Qawa¯ʿid al-fiqhiyya, 14–15. 168 Ibid., 15 (calling them societal legal canons: qawa¯ʿid fiqhiyya ․hayawiyya). 169 Ibid. (quoting Mut․ahharı¯: jumu¯d al-fikr al-ijtima¯ʿı¯ lida¯ fuqaha¯ʾina¯ ). 170 On the notion of dynamic Islamic legal interpretation, see my lecture with this title. Intisar A. Rabb, “Dynamic Islamic Legal Interpretation,” Yale Law School (September 2017) (unpublished lecture). Compare William N. Eskridge, Jr., Dynamic Statutory Interpretation (Cambridge, MA: Harvard University Press, 1994). 171 Ralf Michaels answers this question as it relates to both legal traditions, I believe correctly, with an emphatic yes, even as he acknowledges the contested nature of his claim among comparatists. 253

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See his ‘Banning Burqas: The Perspective of Postsecular Comparative Law’, Duke Journal of Comparative and International Law 28 (2018), 213–45. 172 For arguments in the American context, see, for example, Eskridge, Interpreting Law, 12 and passim; Schacter, ‘Structure of Legitimacy in Statutory Interpretation’, 593–663. 173 See Anita Krishnakumar, ‘Dueling Canons’, Duke Law Journal 65 (2016), 910–1006. 174 Karl Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed’, Vanderbilt Law Review 3 (1950): 395–406. 175 See, Jonathan R. Macey and Geoffrey P. Miller, ‘The Canons of Statutory Construction and Judicial Preferences’, Vanderbilt Law Review 45 (1992), 647–72 (‘A regrettable side-effect of Karl Llewellyn’s interesting critique of the canons of statutory construction was that intellectual debate about the canons was derailed for almost a quarter of a century.’). 176 See, e.g., Kenneth A. Shepsle, ‘Congress is a They, not an It: Legislative Intent as Oxymoron’, International Review of Law and Economics 12 (1992), 239–56. But see John Manning, ‘Second Generation Textualism’, California Law Review 98 (2010) 1287–1318 (noting that public choice theory, while initially damaging to the study of textualism and legal canons, had the unintended effect of strengthening the grounds for both). 177 Compare Eskridge, Interpreting Law, app., 407–45 (collecting the canons used in the US Supreme Court from 1986 through 2016) with James J. Brudney and Corey Ditslear, ‘Canons of Construction and the Elusive Quest for Neutral Reasoning’, Vanderbilt Law Review 58 (2005), 1–120, at 106–7 (cataloguing the use of some canons subsequently in the same court) and Abbe R. Gluck and Lisa Schultz Bressman, ‘Statutory Interpretation from the Inside: An Empirical Study of Congressional Drafting, Delegation, and the Canons’, Stanford Law Review 65 (2013) 901–1025 (cataloging the use of canons in Congress). 178 See above notes 47 and 103, and accompanying text. 179 Bu¯rnu¯, Mawsu¯ʿa, 22–23. 180 Ibid., at 24. 181 Ibid. (tana¯ zuʿ al-masʾala bayna al-qa¯ʿidatayn). 182 See generally Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press of Harvard University Press, 1986).

Selected bibliography and further reading Ba¯ H ․ usayn, Yaʿqu¯ b. al-Qawa¯ʿid al-fiqhiyya: al-maba¯diʾ, al-muqawwima¯t, al-mas․a¯dir, al-dalı¯liyya, ­al-tat․awwur. Riyadh: Maktabat al-Rushd, 1998. Bujnu¯rdı¯, Muh․ ammad H ․ asan. al-Qawa¯ʿid al-fiqhiyya, ed. Mahdı¯ al-Mihrı¯zı¯ and Muh․ ammad H ․ usayn al-Dira¯ yatı¯. Qum, Iran: Dalı¯ l-i Ma¯ , 1424/2003–4. Bu¯rnu¯, Muh ․ ammad S․idqı¯ b. Ah ․ mad b. Ah ․ mad al-Ghazzı¯. al-Wajı¯z fı¯ ¯ı․da¯․h qawa¯ʿid al-fiqh al-kulliyya. Beirut: Muʾassasat al-Risa¯ la, 1983. Da¯ ma¯ d, Mus․․t afa¯ Muh․ aqqiq. Qava¯ʿid-i Fiqh, 4th edn. Tehran: Markaz-i Nashr-i ʿUlu¯m-i Isla¯ mı¯, 2001. Heinrichs, Wolf hart. ‘Qawa¯ʿid as a Genre of Legal Literature’. In Studies in Islamic Legal Theory, ed. Bernard Weiss. Leiden: Brill, 2002, 366–84. Kamali, Mohammad Hashim. ‘Legal Maxims and Other Genres of Literature in Islamic Jurisprudence’. Arab Law Quarterly 20, no. 1 (2006): 77–101. A¯ l Ka¯ shif al-Ghit․a¯ ʾ, Muh․ ammad al-H ․ usayn. Tah․rı¯r al-Majalla. Qum, Iran: al-Majmaʿ al-ʿA¯ lamı¯ liTaqrı¯ b Bayna al-Madha¯ hib al-Isla¯ miyya, 2001–2. Mah․ mas․a¯ nı¯, S․ubh․¯ı. Falsafat al-Tashrı¯ʿ fı¯ al-Islam, 5th edn. Beirut: Dar al-ʿIlm li-l-Mala¯ yı¯n, 1980. Nadwı¯, ʿAlı¯ Ah․ mad. al-Qawa¯ʿid al-fiqhiyya: Mafhu¯muha¯ , nashʾatuha¯ , tat․awwuruha¯ ; dira¯ sa¯ t muʾallafa¯ tuha¯ , muhimma¯ tuha¯ , tat․bı¯ quha¯ , 4th edn. Damascus: Dar al-Qalam, 1994. Rabb, Intisar A. Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law. Cambridge: Cambridge University Press, 2015. Schacht, Joseph. Origins of Muhammadan Jurisprudence. Oxford: Oxford University Press, 1950. Tashkı¯rı¯, Muh․ ammad ʿAlı¯ et al. (eds). al-Qawa¯ʿid al-us․u¯liyya wa-l-fiqhiyya. Qum, Iran: al-Lajna al-­ ʿIlmiyya fı¯ al-H ․ awza al-Dı¯niyya bi-Qum, 2004. Zarqa¯ , Ah․ mad Muh․ ammad. Sharh․ al-qawa¯ʿid al-fiqhiyya, ed. ʿAbd al-Satta¯ r Abu Ghudda. Damascus: Dar al-Qalam, 1989. Zarqa¯ , Mus․․t afa¯ Ah ․ mad. al-Madkhal al-fiqhı¯ al-ʿa¯ mm. Damascus: Dar al-Qalam, 2004. Zuh․ aylı¯, Muh․ ammad Mus․․t afa¯ . al-Qawa¯ʿid al-fiqhiyya wa-tat․bı¯ quha¯ wa-tanz ․¯ı muha¯ fı¯ al-madha¯ hib al-arbaʿa. Damascus: Dar al-Fikr, 2006. 254

14 Ijtiha¯d and taqlı¯d Between the Islamic legal tradition and ­autonomous western reason Sherman A. Jackson

To the memory of Shaykh H ․ asan Salı¯m H ․ asan S․a¯ lih ․

Autonomous reason’s rise to primacy in the modern West was a complicated affair. As late as the 18th century, even European thinkers who championed the cause of reason questioned its panacean powers and dreaded its collateral liabilities.1 As fervently as Descartes insisted that accidental variations of context and substance be abandoned in favour of the exclusively abstract and decontextualized, thinkers such as the French Jesuit Gabriel Daniel questioned the authenticity of the kind of certainty the cogito ergo sum could actually deliver.2 As forcefully as Kant and the Aufklärer champions of the Enlightenment cast reason as an independent faculty insularly nested in some noumenal or mental realm, anti-Enlightenment intellectuals, such as J. G. Hamann, pushed back, stressing the social, historical, affective and other dimensions of reason, while challenging its status as the exclusive means of knowing.3 Other objections to reason’s untrammelled authority came from Romantics, such as Fichte and Schelling, who stressed its utter inadequacy before the profound.4 Despite these challenges, however, what would eventually emerge as ‘Western modernity’ embraced reason as the preferred if not exclusive means of knowing, beyond what the senses could directly apprehend.5 This reason was autonomous and universal; and it transcended all accidents of time and place. As its own self-authenticating authority, it displaced the moral community as guarantor or umpire of the mind’s apposite use.6 Thus, insists Locke, ‘the floating of other men’s opinions in our brain makes us not one jot the more knowing’.7 Joined by the likes of J. S. Mill, he would scoff at ‘received propositions’ or ‘received opinions’.8 Meanwhile, Kant would condemn as a ‘simpleton’ anyone who ‘always allowed himself to be guided by other persons’.9 By contrast, he deemed originality a sign of genius.10 Knowledge, according to these men, is not a corporate entity but ‘the achievement of solitary men’.11 Stephen Toulmin characterizes this development as a move away from practical engagement in favour of epistemology.12 ‘Meaning’ in this context acquires a premium over ‘being’,13 and this casts aspersions on all forms of knowing that are grounded in tradition, authority, culture and similar modes of embodiment. This embrace of modern, autonomous reason rendered continuous progress, originality and 255

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innovativeness signatures of a proper commitment to rationality and thus civilization. This is unmistakably captured in Isaiah Berlin’s comment on Kant’s famous response to the question, ‘What is Enlightenment?’ [E]nlightenment is simply the ability of men to determine their own lives, the liberation of themselves from the leading-strings of others, the fact that men become mature and determine what to do, whether it be evil or whether it be good, without leaning excessively upon authority … upon the State … upon tradition … upon any kind of established values on which the weight of moral responsibility is then squarely laid. A man is responsible for his own acts … Civilisation is maturity, maturity is self-determination – being determined by rational considerations, and not being pushed and pulled about by something or other over which we have no control, in particular by other persons.14 As the academic study of Islam reached maturity in the West in the 19th century, this autonomous, self-authenticating reason was well on its way to becoming the reigning régime of sense in the Western academy, at least ostensibly. This was not simply reason writ large, finally uncovered and laid bare in its unadulterated purity; this was essentially history normalized, internalized and then forgotten as history. Nevertheless, as the touchstone of the Western academy, this very particular understanding and valuation of reason informed the basic prism through which the study of Islam was pursued, exerting a significant impact on our understanding and valuation of Islam’s intellectual tradition.15 In this chapter, I shall compare and contrast three competing perspectives on the Islamic legal institutions of ijtiha¯ d and taqlı¯ d. I shall argue that two of these extremely influential approaches carry into their analyses Western modernity’s positive valuation of reason, as an autonomous, self-authenticating episteme, coupled with a negative valuation of mimesis,16 as a heteronomous, historically bound means of authenticating claims to (religious) knowledge. These polarities infuse their authors’ understanding of ijtiha¯ d and, especially, taqlı¯ d with certain biases and presuppositions that distort their actual value and function in Islamic law. Yet, while these approaches share this common point of departure in modern Western reason, this is obscured by their authors’ mutually contradictory conclusions on the question of the closing of the gate of ijtiha¯ d. By contrasting these approaches, therefore, with a third approach – my own – I hope to highlight the fact and impact of their common understanding and valuation of ‘reason’ and mimesis. Even where the influence of this modern Western perspective is ostensibly transcended, as is the case with one of these approaches, the author’s failure to acknowledge its impact on his earlier work, as well as his reading of those he critiques, leaves a number of contradictions and antinomies outstanding. In the end, the true nature of Islamic law, including taqlı¯ d and its mimetic underpinnings, remains inadequately understood.

1  Two theses The classic statement on ijtiha¯ d and taqlı¯ d was put forth some 50 years ago by Joseph Schacht in his groundbreaking work, An Introduction to Islamic Law: By the beginning of the fourth century of the hijra (about A.D. 900) … the point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary 256

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qualifications for independent reasoning in law and that all future activity would have to be confined to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all. This ‘closing of the door of ijtiha¯ d,’ as it was called, amounted to the demand for tak ․ lı¯d, a term which had originally denoted the kind of reference to the Companions of the Prophet that had been customary in the ancient schools of law, and which now came to mean unquestioning acceptance of the doctrines of the established schools and authorities.17 Schacht’s statement was not entirely free of ambiguity.18 What is clear, however, from the tone and substance of his account, is that, to his mind, the development he describes almost singularly explained Islamic law’s slide into decline. Over the course of his writings, Schacht went back and forth on this negative denouement, observing, for example, that, Whatever the theory might say on ijtiha¯ d and taqlı¯ d, the activity of the later jurists, after the ‘closing of the door of independent reasoning,’ was no less creative, within the limits set to it by the nature of sharı¯ʿa, than that of its predecessors.19 Elsewhere, however, he suggests that these creative energies were no match for the ‘ankylose’ (rigor mortis) that had set in alongside the immutable nature of Islamic law.20 This would be joined by even more extreme statements to the effect that even ‘the mechanical method of reasoning by analogy … was put out of the reach of later generations by the doctrine of the closing of the gate of independent reasoning (ijtiha¯ d)’.21 By all accounts, Schacht was the leading scholar of Islamic law in his time, about whom G. E. von Grunebaum would later say, ‘Muslim law[’s] … origin and structure no longer can be seen except through his eyes’.22 This rendered his thesis the going opinion in the field at large, in which capacity it exerted far-reaching influence. Equally influential, however, was its strong and unmistakeable illocutionary implication: ijtiha¯ d is good; taqlı¯ d is bad. Nowhere, perhaps, is this implication more evident than in Schacht’s choice of a translation for the terms ijtiha¯ d and taqlı¯ d. Ijtiha¯ d was not ‘independent interpretation’, ‘unmediated derivation’ or ‘principled deduction’ – all equally plausible renderings; it was ‘independent reasoning’. While this may appear neutral on its face, ‘independent reasoning’ signalled precisely the kinds of intellectual energies and aspirations implied by Kant’s, Locke’s, Mills’ and Berlin’s Enlightenment reason. It echoed the modern Western ideal that reason, deployed by solitary persons, was the superior (if not sole) basis of knowing, that it was or could be its own self-authenticating authority, and that it was progressive and independently dispositive in any argument. That Schacht’s rendering of ijtiha¯ d entailed such a value judgement is thrown into relief by his translation of taqlı¯ d. Taqlı¯ d, according to him, was not the ‘critical extension of sacred history’, ‘provisional deference to precedent’ or even ‘mediated interpretation’; it was simply ‘unquestioning acceptance’.23 This connoted precisely the kind of ‘leaning excessively upon authority … upon tradition … upon … established values’ for which Western Enlightenment reason would brook no tolerance, clearly echoing the epistemological presuppositions that had now become native to the Western academy. In this context, once ijtiha¯ d became identified with reason – independent, autonomous reason – taqlı¯ d was doomed to become a juristic black sheep. Meanwhile, the illocutionary force of Schacht’s valuation of ijtiha¯ d and taqlı¯ d transformed his thesis into a subtle, civilizational indictment. If ijtiha¯ d had expired as the result of a conscious, trans-generational decision by Muslim jurists to uphold the propriety of ‘unquestioning acceptance’ for literally centuries, one almost had to question the workings of the Arab 257

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Muslim mind. Coupled with the fact that he was writing at a time when a number of Arab Muslim nations had just emerged from colonial rule, such intimations infused Schacht’s thesis with a degree of provocation. In response, no scholar would put forth a more challenging and influential counter-thesis than Professor Wael B. Hallaq. In a series of articles (and later books), beginning in the 1980s, Hallaq argued strenuously against the notion of any ‘closing of the gate of ijtiha¯ d’.24 For our purposes, however, what is most relevant in Hallaq’s thesis is not his insistence that ijtiha¯ d never ceased but his substantive valuation of ijtiha¯ d itself (as well as taqlı¯ d) and the extent to which this was driven by the same basic understanding and valuation of reason (and mimesis) observed in Schacht. While Hallaq opposed Schacht on the actual closing of the gate of ijtiha¯ d, he essentially agreed with the latter in seeing ijtiha¯ d as a positive institution capable of promoting innovativeness and creative legal thinking, while viewing taqlı¯ d as a negative institution doomed to juristic stagnation and unthinking. This hampered his ability to see the extent to which my own thesis entailed a refutation of Schacht, in that it depicted taqlı¯ d as being perfectly consistent with juristic dexterity and pointed to what I termed ‘the regime of taqlı¯ d’ as constituting a more rather than a less developed stage of Islamic law. Later, Hallaq reversed course on this negative understanding of taqlı¯ d. But, as we shall see, this was done without ever vindicating his earlier hostility towards it or explaining why I was wrong in recognizing taqlı¯ d’s consistency with skilful legal thinking a full decade earlier.

2  A third thesis (and its critique) My thesis on the relationship between ijtiha¯ d and taqlı¯ d began with my PhD dissertation on the Egyptian Maliki jurist, Shihab al-Din al-Qarafi (d. 684/1285), which I completed in 1991.25 There I argued, inter alia, that: 1) while ijtiha¯ d never ceased to exist entirely, it gave way to a more pervasive ‘regime of taqlid’, which established itself sometime between the sixth/12th and seventh/13th centuries; 2) the reason for this development was not the disappearance of jurists deemed capable of undertaking ijtiha¯ d nor a group decision that all essential questions had been finally settled; and 3) taqlı¯ d neither amounted to the absence of independent reasoning nor to the cessation of deft legal thought.26 In 1996, I published a revised version of this dissertation under the title, Islamic Law and the State: The Constitutional Jurisprudence of Shiha¯ b al-Dı¯ n al-Qara¯ fı¯ .27 In this work, I refined my thesis on ijtiha¯ d and taqlı¯ d, adducing a more explicitly legal explanation of their role and nature, as opposed to the more narrowly pragmatic explication I offered in my dissertation, ‘In Defense of Two-Tiered Orthodoxy’, where I argued that the legal community settled upon a regime of taqlı¯ d as a means of insulating the law from the abuses of government in collusion with overly pliant, ambitious or unscrupulous jurists, especially in their capacity as judges.28 If these jurists were entirely free to interpret the law with no binding commitment to precedent or any other authority outside the individual jurist, government, with its free reign to appoint and dismiss judges at will, could make clean work of this open-ended cornucopia of legal views.29 In Islamic Law and the State, however, I shifted my focus to authority as law’s foundational premise and most basic currency. On this analysis, even as taqlı¯ d might continue to insulate the law from government manipulation, it was more fundamentally valued as the 258

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institutionalized means of authenticating legal views and regulating access to this interpretive legal authority, as something approaching a ‘controlled substance’. 30 Because, however, taqlı¯ d ultimately trafficked in the authority to back legal interpretations as opposed to the substance of bygone interpretations themselves, it merely worked to domesticate the creative energies of the jurists, not to obliterate these. In this capacity, taqlı¯ d took no interest in actively promoting juristic unthinking; it simply imposed a stringent, communally owned and policed standard of authentication upon those who wished to think juristically and have their deliberations accepted into the sanctum of Islamic law.31 Just prior to the release of Islamic Law and the State in 1996, I published an article in a special edition of the journal Islamic Law and Society devoted to ijtiha¯ d and taqlı¯ d.32 In this article, I adumbrated my understanding of ijtiha¯ d and taqlı¯ d as laid out in Islamic Law and the State, reiterating that taqlı¯ d was fundamentally about authority, i.e. that what jurists borrowed from the past was not the substance of existing doctrine but the authority attached to the name or doctrine of an already established authority figure. In this capacity, I noted, again, that taqlı¯ d was not committed to ‘unthinking’ and was not inconsistent with the continued development of the law. I acknowledged that ijtiha¯ d continued in a limited capacity, but I invited readers to resist the tendency to inflate its presence or value, especially given its inability to back itself with requisite interpretive authority. In this context, I sided with Schacht on the ultimate ‘triumph’ of taqlid (though not on the closing of the gate of ijtiha¯ d) as the dominant approach to Islamic law after the sixth/12th–seventh/13th centuries, against what I took to be Hallaq’s insinuation of an unabated continuation of ijtiha¯ d.33 I advised against the practice of searching for any signs of ijtiha¯ d and suggested that the ‘mujtahid fı¯ al-madhhab’ be  recognized for what he is: a muqallid.34 For the madhhab, I argued, functioned precisely as the repository of the kind of interpretive authority any ‘mujtahid’ would need to authenticate his legal declarations.35 This special issue of Islamic Law and Society was guest-edited by Professor Hallaq. In his comment on my article in the Introduction to the volume, he criticized my view on ijtiha¯ d and taqlı¯ d to the point of rejecting it. In particular, he repudiated the notion that al-­Qarafi’s skilful approach to calibrating the scope of legal injunctions could be considered an exercise in taqlı¯ d, as I had argued. Instead, al-Qarafi’s articulations had to be considered ijtiha¯ d, because they were, in Hallaq’s words, ‘creative and innovative’. Indeed, Hallaq insists, ‘No jurist could claim that such proficient knowledge and skillful manipulation of the law constituted taqlı¯ d’.36 According to him, I had grafted a confused and alien understanding onto the concept of taqlı¯ d, which the Islamic legal tradition itself would never recognize. Thus he wrote: If Jackson wishes to label Qara¯ fı¯’s activity as taqlı¯ d, then he must acknowledge that taqlı¯ d was creative and innovative – in clear and obvious ways. But the Muslim legal tradition systematically refused to define taqlı¯ d in this manner, to put it in the simplest of terms. Jackson is free to adopt this label, but whatever name we choose to call it, a mule is a mule. Qara¯ fı¯’s activity, as described and analyzed by Jackson, was creative, innovative and led to perceptible changes and adaptation in the law; and this manifestly is the conclusion of Hallaq not Schacht.37 Of course, that was precisely Jackson’s point all along: taqlı¯ d did not necessarily preempt ‘creativity’ or ‘innovativeness’ (though one might ask why these, as opposed to ‘understanding’, judiciousness’ or ‘capturing the law’ should be so highly valued in a system of law, not to mention a religious law).38 259

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As such, even a closing of the gate of ijtiha¯ d need not spell the end of dexterous legal thought. This is partly why I saw no reason to refute Schacht’s thesis on the closing of the gate of ijtiha¯ d in the first place. For, ijtiha¯ d, as I understood it, was primarily about substance, while taqlı¯ d was about authority. But Hallaq insisted that I had simply misunderstood ijtiha¯ d (and taqlı¯ d), and in so doing was not able to recognize ijtiha¯ d’s continued contribution across Islamic legal history. Of course, part of the problem was that Hallaq and I were operating on different definitions of ijtiha¯ d. As I put it, ‘I do not consider to be ijtiha¯ d the application of the tools of usul al-fiqh to anything other than scripture’.39 For him, by contrast, ijtiha¯ d was apparently the assiduous use of the tools of usul al-fiqh in any interpretive effort, be its object scripture, the madhhabs or perhaps even factual reality. This enables him to maximize the number of instances in which jurists could be pointed to as practicing ijtiha¯ d; indeed, the bulk of his proof of the continued exercise of ijtiha¯ d (not just in this comment) lay precisely in instances of ‘al-ijtiha¯ d fı¯ al-madhhab’. He apparently saw no difference between scripture as a primary, religious-cum-legal authority and the madhhabs as a secondary interpretive authority (which is not to negate that they may also function as a legal authority40). As such, the explicit connection I make between taqlı¯ d and authority41 appears nowhere in his analysis or critique of my position. In fact, neither the word nor concept of ‘authority’ appears anywhere in his comment. Two years later, in 1998, again in Islamic Law and Society, Hallaq reviewed my book, Islamic Law and the State, which had appeared later in 1996. While Islamic Law and the State included a bolder and more circumspect treatment of ijtiha¯ d and taqlı¯ d, the main thesis regarding these institutions was identical to what I laid out in ‘Taqlı¯ d’. Specifically, authority was identified as the heart of the matter. Thus, for example, speaking of negative translations of taqlı¯ d, I wrote: Such appellations tend not only to cast taqlı¯ d in a negative light but also to obscure the basic logic underlying the institution itself. For such translations assume the content of what is borrowed to be the most important element in the process, imputing, meanwhile a certain timidity and anti-intellectualism to the very act of looking back … Law [however] … is not philosophy … ‘It is not Wisdom but Authority that makes a law’.42 In his review, however, Hallaq looked past all of this. Instead, his major focus was on what he took to be the implications of my agreeing with Schacht on the institutionalization of taqlı¯ d. Again, he reads me as agreeing with Schacht’s ‘pessimism’ regarding the possibility of dexterous thought in Islamic law as a consequence of my agreeing with him on the spread of taqlı¯ d.43 In point of fact, however, I stated explicitly that Schacht was wrong to think that Muslim jurists deemed themselves incapable of independent interpretation,44 that he was wrong to see a contradiction between taqlı¯ d and independent reasoning,45 and that it was misleading to shoulder taqlı¯ d as an institution with primary responsibility for stagnation and decline in Islamic law.46 But Hallaq’s obsession with the gate of ijtiha¯ d and his linking taqlı¯ d with the cessation of juristic skilfulness would not allow him to see any of this. Instead he writes, ‘Jackson fails to convince the reader that Qarafi’s creativity should be regarded as falling within the limits of taqlı¯ d’.47 And further, ‘I find it sadly ironic that Qarafi’s brilliant achievement should be coerced into vindicating Schacht’s views about ijtiha¯ d when in fact it stands as an eloquent and easily demonstrable confirmation of my own’.48 Once again, because Schacht could only see the cessation of ijtiha¯ d as resulting in stagnation, my agreeing with him on the spread of taqlı¯ d had to mean agreeing with him on the inevitability of ‘ankylose’. Meanwhile, what Hallaq sees as al-Qarafi’s creative activities could only confirm his thesis, because it was 260

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he and not Schacht who argued for the continuation of creative juristic activity. In all of this, the fundamental role I attribute to authority as the very raison d’être of taqlı¯ d is summarily ignored. Once again, neither the word ‘authority’ nor the concept of authority appears anywhere in Hallaq’s review, despite its clear and critical centrality to my entire thesis. For Hallaq (at this stage in his scholarship at least) taqlı¯ d was clearly not simply a negative category; it was exclusively negative, with no redeeming qualities or creative capabilities at all. This is why he set out to negate its pervasiveness in the first place, by arguing against the closing of the gate of ijtiha¯ d. His basic intention, as he put it, was, ‘to revise the widely received notion that ‘slavish imitation’ controlled the legal system, and that ijtiha¯ d had become irretrievably defunct’.49 In other words, only by proving that ijtiha¯ d had not become defunct could it be proved that creativity continued and that neither the Muslim legal system nor the Arab mind was controlled by ‘slavish imitation’. The notion of taqlı¯ d being fundamentally about authority and that in this capacity it could continue to sustain juristic skilfulness, dexterity and even innovation, as I had argued all along, was summarily dismissed.

3  An unexplained reversal Between 1998 and 2001, however, something happened. The very opening lines of Hallaq’s new book, Authority, Continuity and Change in Islamic Law, read as follows: To say that authority is the centerpiece of law is merely to state the obvious. Equally obvious therefore is the proposition that Islamic law – or any other law, for that ­m atter – cannot be properly understood without an adequate awareness of the structure of authority that underlies it.50 From here Hallaq goes on to cast taqlı¯ d in a totally a new light. Taqlı¯ d is no longer ‘blind or mindless acquiescence’; 51 nor does it imply ‘slavish imitation’. Taqlı¯ d is now an ‘undeniably creative activity’52 that ‘may at times border on the juristic activity associated with ijtiha¯ d’.53 Taqlı¯ d is ‘intelligent and creative’.54 In fact, we can now even speak of ‘the achievement of taqlı¯ d’.55 For taqlı¯ d is now ‘dynamic and vibrant’,56 ‘far from blind following’,57 perhaps even ‘a reenactment of ijtiha¯ d’.58 Whereas it was emphatically wrong for Jackson to consider al-­ Qarafi’s ‘innovativeness’ an exercise in taqlı¯ d, jurists could now readily display their acumen and innovativeness through this medium, so much so that al-Nawawı¯’s taqlı¯ d in one instance is described as being ‘of the best kind’.59 Indeed, we can even speak of ‘the liberal nature of taqlı¯ d’.60 In his review of Islamic Law and the State, Hallaq had ridiculed Jackson for considering takhrı¯ j a form of taqlı¯ d, it being, according to him, ‘undeniably a form of ijtiha¯ d’.61 Now, however, takhrı¯ j is unproblematically a cognate of taqlı¯ d, not even always distinguishable from the latter as a means of garnering interpretive authority.62 Surprisingly, however, nowhere in any of this is there any indication that Hallaq had changed his mind on any of his previously held views. He offers no mea culpas; and neither Jackson nor anyone else is cited as having contributed anything to his new understanding, not even negatively in the form of mistakes that alert him to interpretive pitfalls, dead-ends or wrong turns.63 Nor does he trace the evolution of his own thinking on the matter. Instead, he proceeds straight away, as if in a spontaneous epiphany, to amass an impressive array of sources and to subject these to lively, skilful and rigorous analysis, again, entirely driven, we are left to conclude, by his own unique and unassisted insights. The end result is a masterful depiction of taqlı¯ d (which is now his primary focus instead of ijtiha¯ d64) with which no knowledgeable, fair-minded reader could disagree. Indeed, while one might leave it to the field at 261

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large to determine the extent of Hallaq’s originality or scholarly rectitude, his thesis on taqlı¯ d in this work is laid out beautifully and most convincingly. In fact, I would consider it to be the definitive (and certainly most thorough) statement on taqlı¯ d to date, with one important exception, to which I shall now turn.

4  Taqlı¯d between epistemic and mimetic authority According to Hallaq, while it also includes a moral and a religious element, the authority of the jurist is ‘mostly epistemic’.65 Taqlı¯ d, he observes, can range from the mere reproduction of the predecessors’ doctrines to bordering on activity associated with ijtiha¯ d. Most instances, however, fall between these two extremes.66 It seems clear, however, that the ‘epistemic authority’ of the jurists accrues to them primarily by virtue of their juristic acumen, not by any other qualities inhering in them as members of the legal tradition. Loyalty to and defence of school doctrine67 as well as simple recognition of established ‘practice’68 make their contributions. But it is primarily principles that lie at the core of taqlı¯ d, at least in most instances, and it is his engagement with principles that lies at the heart of the jurist’s epistemic authority.69 Of course, principles can neither speak for nor obviate themselves but must be extracted, articulated and deployed via reasoned deliberation, especially when the jurists from whom they are gleaned are dead and unable to confirm what is claimed in their name. To the extent, as such, that, ‘The authority being transmitted through taqlı¯ d … is one that has at its center the articulation of principles’,70 the jurist’s individually exercised reason remains at the heart of his ‘epistemic authority’.71 It is difficult, over the course of his depiction, to ignore or miss the sense in which Hallaq clearly seeks to place reason in the position of vindicating taqlı¯ d. In effect, albeit in modified fashion, he appears to hark back to the very same point of departure evinced by Schacht. Taqlı¯ d is now good for Hallaq for the same reason that ijtiha¯ d was good for Schacht: it is primarily grounded in reason. But grounding taqlı¯ d primarily in reason, not to mention autonomous reason, raises problems of its own. If authority is taqlı¯ d’s actual currency, then, as E. D. Watt observes, ‘authoritative relationships exist between unequals’.72 Persuasion, on the other hand – seemingly the very point of relying on rationally extracted principles or adducing reasoned arguments – implies equality: A is equal to B and thus recognizes B’s arguments only to the extent that they comport with reason, whose authority A essentially recognizes independent of any reliance on B. In other words, ‘to judge [an] utterance on the merits of its content is not to follow it as authoritative’.73 For, once we have worked through a proof or examined the evidence for ourselves, then not merely have we no further need of an authority as the reason for our belief; rather, it is no longer possible to accept it on the authority of someone else, for we have become authorities ourselves.74 But if this is actually the case, it cannot be the principles or the reasons undergirding them that our source of authority is ultimately providing for us; for our own ability to assess these principles and reasons suggests that we are equal to our source in this regard. In order for our source to remain a source of authority, therefore, it must provide us with something that we cannot provide ourselves. And it is this ability to provide this unique and heteronomous something that sustains the relationship of inequality between our authority-source and ourselves. Clearly, on such a relationship, the authority of the jurists cannot be ‘mostly epistemic’. 262

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We see this very presumption at play in the self-perceptions of pre-modern Muslim jurists themselves. Al-Suyuti (d. 909/1505), for example, reports that the ‘truly knowledgeable’ (al-muhaqqiqun) among his fellow Shafiʿi masters affirmed that they did not embrace al-Shafiʿi’s madhhab by way of taqlı¯ d (s․a¯ ru¯ ila¯ madhhab al-Shafiʿi la¯ taqlı¯ dan); rather, when they found his method of ijtiha¯ d and analogy to be the most correct, while they themselves also found no alternative to engaging in ijtiha¯ d, they followed his method (bal lamma¯ wajadu¯ ․tarı¯ qahu fı¯ al-ijtiha¯ d wa al-qiya¯ s asadd al-t․uruq wa lam yakun lahum budd min al-ijtiha¯ d salaku¯ ․tarı¯ qah).75 In other words, al-Shafiʿi did not provide them with the method itself nor with the ability to examine proofs independently. On the contrary, all of this they were capable of arriving at on their own. What al-Shafiʿi provided, therefore, i.e. what they could only have gained from him, was clearly something other than his facility in principled juristic reasoning. What exactly did these ‘mujtahid’ jurists derive from their affiliation with al-Shafiʿi? AlShafiʿi provided them with a basis of authority, a means of conferring credence upon their views and signalling to others the propriety of deferring to them. But why was al-Shafiʿi, who had been dead for centuries, able to confer this kind of authority? There seems to be something ‘anthropological’ going on here about which I feel unqualified to speak.76 In more general terms, however, it was precisely the fact that al-Shafiʿi died in the embrace of the aura cast by what came to be viewed as ‘sacred history’, such that he could be seen as an extension of the group and era that preserved and defended the universe of values, proper assumptions, prejudices, points of departure and commitments, indeed the very Weltanschauung, set in motion by the legacy of the Prophet. It is not simply his acumen as a jurist that is operative here but his status as a reliable fragment of the Community’s collective memory/authority as heir to the Prophet’s interpretive infallibility. This might be cast in even bolder relief by the case of Ahmad b. Hanbal, who, by some early accounts, was not even considered a jurist. Yet, he would emerge as eponym and authoritative ground of one of the permanently recognized orthodox schools of law. Herein lies the key to uncovering and appreciating the mimetic element in the act of following these figures. As E. D. Watt notes, speaking in the context of ethics, ‘Perhaps goodness is more readily recognized in a good man than in a good ethical argument’.77 Speaking in the context of Islamic law, we might say, ‘Perhaps the authority of a juristic pronouncement is more readily recognized coming from a “good” jurist than coming from a good juristic argument’. The Pious Ancestors (Salaf ), whom al-Shafiʿi, Ibn Hanbal, the remaining imams and their presumed heirs came to represent, constitute the ‘good jurists’ of the Islamic legal tradition. They represent, in ways both actual and imagined, the cumulative wisdom, memory, experience and presumed sound judgement of the Community, not to mention its putative connection with the fount of authority in the Prophet himself. In this capacity, their arguments always contain something beyond the mere substance of their reasoned justifications. Thus, while the ‘mujtahids’ whom al-Suyuti cites as choosing to affiliate with al-Shafiʿi may have been equal to the latter in terms of legal acumen, he was their unequal superior in terms of authority, a fact very much grounded in his position in the cumulative train of communal experience and presumed connection to the penumbra cast by the Prophet. For, in this capacity, he could validate (and add assurance to) their views in ways that they themselves could not. And this authority, this ability to validate (as we saw in the case of Ibn Hanbal), ultimately transcended his outstanding ability to reason juristically.78 It was perhaps Schacht who prompted us to assume too complete and radical a dichotomy between ijtiha¯ d and taqlı¯ d, as if the two were mutually exclusive, zero-sum antagonists. 263

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I suspect that there were two possible sources for this attitude. The first was al-Shafiʿi himself, the depths of whose writings Schacht had plumbed more deeply than anyone else to date. According to Ahmed El Shamsy, al-Shafiʿi strenuously rejected the taqlı¯ d of the formative period, with a particular animus against the mimetic conformism represented by Malik’s reliance on Medinese practice (ʿamal). For al-Shafiʿi, Malik’s approach was too opaque, too arbitrary and subjective. Certain Prophetic or Companion reports would be accepted as authoritative, while others were rejected or ignored, with the only criterion being their reception or not by the Community. On this approach, ‘One could not trace the reasoning that led to a particular ruling; one could only follow it blindly’.79 Al-Shafiʿi insisted that such discretion be replaced with an objective standard of deliberation grounded in a formal methodology (which in its full-blown form would become usul al-fiqh). This would level the playing field between all jurists, since, ‘In the absence of total unanimity … an individual jurist’s interpretation of the canon [would be] formally equal to any alternative interpretation, even if the latter were accepted by all other Muslim jurists’.80 In sum, according to El Shamsy, al-Shafiʿi called for the abandonment of taqlı¯ d in preference of ijtiha¯ d, which he defined as, ‘direct and unmediated engagement with the canonized sources of the law’.81 In this early, formative period, however, the issue was not merely one of interpretation; the very identity of the ‘canonized sources’ themselves was still being debated, and taqlı¯ d effectively oscillated between following another’s interpretation and following another’s assessment of the validity of a source. (Did the practice of Medina, for example, represent a valid source or simply an interpretation of the Prophetic legacy?) In this regard, El Shamsy reports that, despite his rejection of taqlı¯ d, al-Shafiʿi himself exercised it in relation to Ahmad b. Hanbal, ‘by accepting the latter’s judgments regarding the authenticity of hadith reports without examining the evidence’.82 But once the sources themselves had been ‘canonized’, the emphasis would obviously shift from the authority of the sources to the authority of one’s interpretation thereof.83 Here, however, even Shafiʿi jurists, despite their master’s alleged prohibition of taqlı¯ d, increasingly came to rely on ‘precedent and collective authority as embodied in the works of the school founder and his successors, rather than by the independent exercise of ijtiha¯ d on the basis of the canonized sources’.84 This takes us to the second likely influence on Schacht. Because he identified ijtiha¯ d with ‘independent reasoning’, Schacht may have assumed that reason in Islamic law functioned (or should function) like reason in the modern West, i.e. as its own autonomous, self-­ authenticating authority. On this understanding, taqlı¯ d could only be seen as a drag on ijtiha¯ d if not a direct contradiction of it. But reason could not function in this way in Islamic law; it could not authenticate itself independently, especially not against the collective authority of the historical Community or Salaf (again a diachronically evolving construct in terms of who actually constitutes it). On this understanding, taqlı¯ d might be more accurately seen not as a contradiction of ijtiha¯ d but as a necessary complement to it, a supplier of the kind of validation that reason alone could not (or could rarely) confer upon any legal interpretation. Ijtiha¯ d, in other words, could rarely function as an entirely independent enterprise but would almost always require the kind of validation lent to it by taqlı¯ d. In a real sense, therefore, most instances of purported ijtiha¯ d would almost invariably amount to a hybrid exercise of ‘ijtiqlı¯ d’.85 We see an outstanding instance of this ‘ijtiqlı¯ d’ in none other than al-Suyuti, who perhaps more forcefully than any other jurist claimed the propriety of ijtiha¯ d. In al-H ․ a¯ wı¯ li-l-Fata¯ wı¯, al-Suyuti is asked a question about whether the fur of dead squirrels and other animals is rendered ritually pure by means of tanning. The questioner explicitly states that he or she is not asking about the going opinion in the Shafiʿi school but ‘about what is dictated by the scriptural proofs and their sound investigation by means of ijtiha¯ d’ (ʿamma¯ yaqtad ․¯ı hi al-dalı¯ l 264

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wa-l-naz ․ar min ․haythu al-ijtiha¯ d).86 The questioner goes on to insist that the answer be based strictly on ijtiha¯ d and reflect the view of one entitled to express his independent conclusions (ʿala¯ ․tarı¯ qat al-ijtiha¯ d wa-as․․ha¯ b al-ikhtiya¯ ra¯ t).87 Al-Suyuti’s response is rather lengthy, going on for several pages, and much of this consists of his individual engagement of the sources. But this is not devoid of the mention of past scholars from both outside and within the Shafiʿi school, the latter tendency appearing to increase as he moves towards his conclusion. And yet, despite this generous citation of past scholars, al-Suyuti concludes his fatwa¯ with the following words: ‘This is what our investigation and ijtiha¯ d have led us to regarding this question’ (ha¯ dha¯ ma¯ adda¯ na¯ ilayhi al-naz ․ar wa al-ijtiha¯ d fı¯ hadhihi al-masʾalah).88 Clearly, even al-Suyuti saw no absolute contradiction between independent investigation of the sources and the reinforcement of one’s conclusions via the authority conferred by past jurists. More important, certainly to his mind, the authority of these past jurists went well beyond being ‘mostly epistemic’.

Conclusion Even when Muslim jurists exercised their independent reasoning in the form of ijtiha¯ d as unmediated interpretation of the sources of Islamic law, their aim was not simply to produce a novel or innovative opinion for the sake of novelty or innovation; their ultimate aim was, rather, a skilful, pragmatic yet principled articulation of the law that could be corporately recognized and embraced as falling within the sanctum of sharı¯ʿa. As such, ‘creativity’, ‘innovativeness’ or ‘originality’ could not stand alone as self-validating criteria in Islamic law as they might as reflections of the proper use of autonomous reason in the post-Enlightenment West. The approach to Islamic law that privileges originality, creativity and the like reflects not simply the tendency to import non-legal criteria into the study of law but the superimposition of a very particular understanding and valuation of reason itself, one that sees the latter as entirely self-authenticating and, in turn, pits it against tradition. Both Schacht and Hallaq (in his earlier writings) reflect this conceptualization of reason as the prism through which ijtiha¯ d (and taqlı¯ d) is understood and valuated. In his later writings, meanwhile, Hallaq appears not so much to abandones this conceptualization or valuation of reason as he does to transfer it onto taqlı¯ d. This, however, obfuscates the role of mimesis as the ultimate ground and conduit of authority that go to the core of this Islamic legal institution. It was reportedly Kant who elevated reason as episteme, which is grounded in universal principles, over the Aristotelian ideal of phronesis, or practical reason, which reclines upon the ‘ethos, the cultural and historical conditions current in the community’.89 Paul Ricoeur characterized Kant’s notion as ‘one of the most dangerous ideas’90 in early modern history. Dangerous or not, applying such a conception of reason to Islamic law can only distort the latter. For it can hardly accommodate the role and value of mimesis, as the medium through which the ‘ethos’ of the Muslim community in history, as heir to the Prophetic legacy, is preserved, deployed as authority and then augmented and perpetuated as such. Mimesis functions as a central element in Islamic law, not instead of but alongside independent reasoning – or perhaps we should say ‘encumbered reasoning’ – even as the modern West may view any attachment to the past as a contradiction of reason tout court. Taqlı¯ d in this capacity, far from contradicting independent reasoning, might be seen as functioning, at least for pre-modern jurists, as that which ultimately kept Islamic law ‘Islamic’ in the face of a potentially unending stream of originality and innovativeness on the part of individual jurists. Meanwhile, the authority of the jurists themselves was far more ‘phronetic’ (in the above-cited sense attributed to ­A ristotle) than it was epistemic (in the sense attributed to Kant). 265

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I would like to end with a story, admittedly apocryphal, that I once heard from a teacher of mine. My hope is that it will highlight a dimension of mimesis as part of the DNA or ‘super-context’ of Islamic law that is no less present and operative for all the difficulty one encounters in trying to capture it in words. The story revolves around the celebrated faylasu¯f Ibn Sina (d. 429/1037). A student of his once asked him why, as the greatest philosopher in the world, he didn’t simply start a new religion. Ibn Sina casually dismissed the lad with a mildly impatient, ‘You don’t understand’. ‘What do you mean I don’t understand?’ protested the student. ‘Given your stature and acumen, people would flock to you.’ Ibn Sina simply repeated his response: ‘You don’t understand.’ The next morning, the two arose and entered the courtyard to perform ablutions for the morning prayer. Noticing that a thin layer of ice had formed over the water trough, Ibn Sina advised the youth not to use this water but to use earth (tayammum) instead. While acknowledging his master’s kind consideration, the boy rejected this advice and summarily moved to crack the ice and perform ablution. At this Ibn Sina exclaimed, ‘Maybe now you can understand. He’s been dead for over four hundred years, and you would still prefer to do what you think would connect you to him rather than listen to me’.91

Notes 1 ‘Philosophers of the late eighteenth century had one very good reason for questioning the authority of reason: it seemed as if modern science and philosophy were undermining morality, religion, and the state’. See F. C. Beiser, The Fate of Reason: German Philosophy from Kant to Fichte (Cambridge, MA: Harvard University Press, 1987), 1. Further: ‘[T]heir [the philosophers’] faith in reason was largely based upon the assumption that reason could justify morality, religion, and the state. Never would they have dared to trust reason had they imagined that it would destroy these things’. Ibid., 2. 2 See R. H. Popkin, The History of Skepticism from Erasmus to Descartes (Assen, The Netherlands: ­Koninklijke Van Gorcum & Comp, 1960), 203. 3 On Hamann, see Isaiah Berlin’s excellent work, The Magus of the North (New York: Farrar, Straus and Giroux, 1993). 4 On ‘depth’ and ‘profundity’, see I. Berlin, The Roots of Romanticism, ed. H. Hardy (Princeton, NJ: Princeton University Press, 1999), 118–19: ‘According to the Romantics – and this is one of their principal contributions to understanding in general – what I mean by depth, although they do not discuss it under that name, is inexhaustibility, unembraceability … [I]n the case of works which are profound the more I say the more remains to be said. There is no doubt that, although I attempt to describe what their profundity consists in, as soon as I speak it becomes quite clear that, no matter how long I speak, new chasms open. No matter what I say I will always have to leave three dots at the end.’ 5 This was in stark contrast to the pre-modern Muslim recognition of 1) reason, 2) the senses, and 3) reports of the truthful (khabar al-s․a¯ diq) as the bases of knowledge. Interestingly, despite his reputation as an anti-Sufi, Ibn Taymiyya would add ‘spiritual / supersensory epiphany’ or ‘unveiling’ (kashf ) to this list of valid means of knowledge. See, e.g., his Majmu¯ʿat al-Rasa¯ ʾil wa-l-Masa¯ ʾil, 2 vols, ed. M. R. Rid․a¯ (Beirut: Da¯ r al-Kutub al-ʿIlmiya, 1421/2001), 2: 167. 6 Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago: Chicago University Press, 1990), 20. See also C. Shannon, Conspicuous Criticism: Tradition, The Individual, and Culture in Modern American Social Thought (Scranton, PA: University of Scranton Press, 2006), 194: ‘In rejecting the priority of the moral community as a guarantor of rationality, the modern turn to epistemology has fostered a social ideal of an isolated individual consciousness as existing somehow prior to or apart from a community of inquiry.’ 7 Cited in E. D. Watt, Authority (New York: St Martin’s Press, 1982), 47. 8 Watt, Authority, 47. 9 Cited in T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: S­ tanford University Press, 2003), 52. 10 Asad, Formations, 52. 11 Watt, Authority, 47. 266

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12 Toulmin, Cosmopolis, x. 13 There is an impetus, in other words, to seek ‘meaning’ in all acts and doctrines, on the assumption that the only activities that can be valuable are those to which we can impute some rationally verifiable ‘meaning’. No activity can be valuable in and of itself. Nor can any doctrine (e.g. that God has a face or a hand) have any value beyond its rationally explicable meaning. But ‘meaning’ may not be the only possible validator of actions or beliefs. ‘The world of friendship – of drinking and talking, working and playing, loving and hating – may bring happiness, or it may not; in neither case does it bring “meaning.” It is no less important for being, in a sense, meaningless.’ See ­Shannon, Conspicuous Criticism, 202–3. As for such doctrines as God’s face or hand, their value might lie not in their ‘meaning’ per se but in their profundity and ability to intimate the ineffable element of religion. For more on this point, see my Islam and the Problem of Black Suffering (New York: Oxford University Press, 2012), 130. 14 Berlin, Roots, 81–2. 15 This is most glaringly reflected in scholarly investigations into the role of reason in Islam, where the tendency is to superimpose Western Enlightenment reason onto Islam and then interpretcum-­evaluate the latter through this prism. Thus, Muʿtazilı¯s, e.g. are reputedly progressive, as the most committed to reason, despite the clear social embeddedness of the reason they invoke and the more ‘orthodox’ Ashʿari criticism of them for not being a priori enough in their reasoning. Meanwhile, Ibn H ․ anbal and the Traditionalists are at times cast as not using reason at all, despite . such displays as Ibn H ․ anbal’s in al-Radd ʿala¯ al-Zanadiqa wa-l-Jahmiyya, not to mention the later Ibn Taymiyya. In law, the partisans of raʾy (reason) are contrasted with the partisans of hadith (tradition), and the H ․ anafı¯s are cast as the vanguard of the partisans of raʾy. But the early H ․ anafı¯s were actually more tied to textual sources of hadith than were the ‘traditionalist’ Medinese, who also used raʾy quite unsparingly. Yet, this questionable opposition has given rise to such myths as the ‘Great Synthesis’ between Traditionalism and Rationalism, which allegedly flowed into Islamic law. Clearly, it is time to excavate Islam’s own understanding(s) and valuation(s) of reason from Muslim tradition itself and then to read that tradition through the prism of these understandings and valuations. 16 The only scholar I know who has explicitly noted the critical role of mimesis in the Islamic legal tradition is A. El Shamsy. According to him, the pre-Sha¯ fiʿı¯ tendency was to rely on the community as custodian of ‘an organic stream of normative tradition flowing continuously from the prophetic time to the present’. This mimesis was supremely valued in Medina, less so in Iraq. According to El Shamsy, it was the contribution of al-Sha¯ fiʿı¯ to reject reliance on this essentially uncertain repository of communal wisdom and practice in favour of formally constituted traditions from the Prophet directly. At al-Sha¯ fiʿı¯’s hands, ‘The communal activity of mimesis gave way to the individual task of hermeneutics’. See A. El Shamsy, The Canonization of Islamic Law: A Social and Intellectual History (Cambridge: Cambridge University Press, 2013), 5 and esp. 71 for the above quotes. El Shamsy also notes that al-Sha¯ fiʿı¯’s followers would eventually resume the practice of taqlı¯d and hence mimesis, albeit with a modified thrust and mission. 17 J. Schacht, An Introduction to Islamic Law (New York: Oxford University Press, 1964), 70–1. Schacht was not the first to affirm the closing of the gate of the ijtiha¯ d. For an earlier assertion, see H. A. R. Gibb, Mohammedanism (London: Oxford University Press, 1949), 97–8. 18 One might ask, for example, how one could explain, apply and interpret a doctrine without questioning such things as its meaning or scope. Indeed, what is meant by ‘doctrine’, given that the schools routinely consisted of several, competing views? And does the acceptance of ‘the doctrine as it had been laid down once and for all’ suggest that, outside analogy, quotidian developments beyond the pale of this ‘doctrine’ were to remain unaddressed? Did the jurists look at the doctrines of the schools as the early Z ․ a¯ hirı¯s looked at scripture? On the Zahiri attitude, see A. K. Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (New York: State University of New York Press, 1995), 16: ‘Revelation’s writ ran to what it explicitly addressed and no more … it applie[d] strictly, but it applied [in relative terms] to very little’. Finally, without accounting for some palpable change in the nature and function of the institutions that produced those deemed capable of ‘independent reasoning’ (or, perhaps, some radical disruption in the gene pool or a seismic shift in vogue), how are we to explain the widespread acceptance that no one was any longer capable of acquiring such qualifications? 19 ‘The Schools of Law and Later Developments in Jurisprudence’, Law in the Middle East, ed. M. ­K hadduri and H. Leibesny (Washington, DC: The Middle East Institute, 1955), 75. 267

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20 ‘Classicisme, traditionalism et ankylose dans la loi religieuse de l’Islam’, Classicisme et decline culturel dans l’histoire de l’Islam, ed. R. Brunschvig and G. E. von Grunebaum (Paris: G. P. Maisonneuve et Larose, 1977), 11. 21 Schacht, Introduction, 211. 22 ‘Presentation of Award to Second Recipient, Joseph Schacht’, Theology and Law in Islam (Wiesbaden: Otto Harrasowitz, 1971), 1. 23 Other renderings of taqlı¯d included: ‘blind following’ (N. J. Coulson, A History of Islamic Law ­( Edinburgh: Edinburgh University Press, 1964)); ‘servile imitation’ (G. Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981), 199); ‘unreasoning acceptance’ (A. K. Lambton, State and Government in Medieval Islam (Oxford: Oxford University Press, 1981), 12). 24 Of course, the most important and influential of these was ‘Was the Gate of Ijtihad Closed’, International Journal of Middle East Studies 16:1 (1984): 3–41. Among Hallaq’s arguments was that ijtiha¯ d could not end, as it ‘constituted the only means by which jurists were able to reach the judicial judgments decreed by God’ (p. 4); ‘the demands of legal theory were relatively easy to meet and they facilitated rather than hindered the activity of ijtihad’ (p. 4); and ‘ijtihad was not only exercised in reality, but … all groups and individuals who opposed it were excluded from Sunnism’ (p. 4). Incidentally, we might note the view of Ibn ʿAbd al-Shakur that the debate around ijtiha¯ d applied only to the period before the appearance of the signs of the end of time (ashra¯․t al-sa¯ ʿa). After that, for a period of indeterminate duration, the disappearance of mujtahids was a point of unanimous consensus (mujmaʿ alayh). See Muh․ ibb al-Dı¯n Ibn ʿAbd al-Shaku¯r, Musallam al-Thubu¯t, 2 vols (printed beneath al-Ghazali’s al-Mustasfa¯ ) (Bulaq: al-Mat․baʿa al-Amiriyya, 1322/1904), 2:399. 25 Sherman Jackson, ‘In Defense of Two-Tiered Orthodoxy: A Study of Shiha¯ b al-Dı¯n al-Qara¯ fı¯’s Kita¯ b al-Ih․ ka¯ m fı¯ Tamyı¯z al-Fata¯ wa¯ ʿan al-Ah ․ ka¯ m wa Tas․arrufa¯ t al-Qa¯ d․¯ı wa al-Ima¯ m’ (PhD dissertation, University of Pennsylvania, 1991). 26 See Jackson, ‘Defense’, 5–15 and passim. 27 Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shiha¯ b al-Dı¯n al-Qara¯ fı¯ (Leiden: Brill, 1996). 28 Jackson, ‘Defense’, 13, 131–5. 29 Earlier, W. M. Watt had put forth a similar view, without fleshing out its full implications. See his Islamic Political Thought (Edinburgh: Edinburgh University Press, 1968), 73–4. Later, M. Fadel quite convincingly related the adoption or perhaps continuation of taqlı¯d to concerns for the ‘rule of law’ and the ‘rule of recognition’. See his ‘The Social Logic of Taqlı¯d and the Rise of the Mukhtas․ar’, Islamic Law and Society, 3:2 (1996): 193–233. 30 By ‘interpretive legal authority’ I mean the authority that confers legitimacy upon interpretations of the law in contradistinction to the authority to promulgate the law initially or to implement it once promulgated and interpreted. Meanwhile, my work on al-Qara¯ fı¯ alerted me to the dangers of an over-inclusive understanding of the scope of this interpretive legal authority, namely the risk of jurists taking it as a means to back demonstrably non-legal views. This prompted al-Qara¯ fı¯ to insist on an important distinction between proper and improper taqlı¯d. See n. 38 below. 31 See Islamic Law and the State, xxiv, xxv, xxxi, xxx–xxxi, xxxiii and esp. 80–3. 32 ‘Taqlı¯d, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Mut․laq and ʿA¯mm in the Jurisprudence of Shiha¯ b al-Dı¯n al-Qara¯ fı¯’, Islamic Law and Society, 3:2 (1996): 165–92. 33 Hallaq would later insist that I had inflated his claim, that though he argued for the continued practice of ijtiha¯ d he never claimed that it became or remained the dominant trend. See Wael Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 131. To the extent that my arguments implied this inflated reading of him, I was mistaken. Mea culpa. 34 In his description of ijtiha¯ d, al-Zarkashı¯ asserts that, while memorizing rulings and seeking to extract them from the texts of law manuals may be ‘called’ ijtiha¯ d, this is only linguistically speaking, not according to the technical language of law ( fa-huwa lughatan la¯ is․․tla¯․han). See Badr al-Dı¯n Muh․ ammad b. Baha¯ dir b. ʿAbdullah al-Zarkashı¯, Al-Bah․r al-Muh․¯ı․t fi Us․u¯l al-Fiqh, 2nd edn, 6 vols, ed. A. al-ʿAni, ʿA. S. al-Ashqar and ʿA. Abu Ghudda (Kuwait: Wiza¯ rat al-Awqa¯ f wa-l-Shuʾun al-Islamiyya, 1413/1992), 6:197. Similarly, in his study (and translation) of a late pre-modern anonymous manuscript on taqlı¯d, Lutz Wiederhold cites his source as holding that one who has not attained the level of being able to extract all rulings directly from the sources (mujtahid mut․laq) must resort to taqlı¯d. In other words, the mujtahid fi al-madhhab is a muqallid. See L. Wiederhold, ‘Legal 268

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35 36 37 38

39

40

41

42 43 4 4 45

46 47 48 49

50

Doctrines in Conflict: The Relevance of Madhhab Boundaries to Legal Reasoning in the Light of an Unpublished Treatise on Taqlı¯d and Ijtiha¯ d’, Islamic Law and Society 3:2 (1996), 270 (290 for the Arabic, where the author mentions taqlı¯d explicitly). See ‘Taqlı¯d’, 169–73. Hallaq, ‘Introduction’, 133. Ibid. (emphasis in original). A fair amount of creativeness and innovation would emerge, however, out of the judicious distinction maintained between questions of law and questions of fact. It is primarily on this basis that al-Qara¯ fı¯ makes an explicit distinction between proper and improper taqlı¯d. See my Islamic Law and the State, 123–39. In such light, I can hardly concur with the view of A. Nakissa: ‘Research was not seen as an important goal. Muslim scholars believed that just as there is no progress or creativity in grammar, there is none in law’. See A. Nakissa, ‘An Epistemic Shift in Islamic Law’, Islamic Law and Society 21 (2014): 212. For an interesting example of research (and creativity) on the part of pre-modern jurists, see al-Qara¯ fı¯, al-Furu¯q, 4 vols (Beirut: ʿAlam al-Kita¯ b, n.d.), 1:218, where he speaks of observing the actual behaviour of hashish smokers at their gatherings, as a propaedeutic to giving his opinion on the legal status of smoking hashish. See ‘Taqlı¯d’, 167 n. 5. In response, Hallaq almost appears to confuse matters intentionally. Immediately after citing my view he writes: ‘But Calder, in the article in this issue, and in his earlier study of Sarakhsi, has dealt a coup de grȃ ce to any claim that ijtiha¯ d – in the sense of “clear and open advocacy of views – established in the schools of the mujtahid-Imams” ceased to dominate after the sixth/twelfth century on’. ‘Introduction’, 132. Of course, there is a clear and obvious difference between ‘clear and open advocacy of views’ and limiting the application of the tools of usul al-fiqh to scripture. In other words, on settled issues, one may accept, for example, the going opinion of a madhhab as ‘the law’. In this capacity, the madhhab functions as a legal authority. When it comes unprecedented issues, however, the madhhab functions more as an interpretive authority to back or authenticate novel interpretations. At ‘Taqlı¯d’, 171–2, for example, I wrote, as a corrective to the view of both Hallaq and Schacht: ‘[T]he tendency to view taqlı¯d in negative terms appears to turn on the assumption that the content of what was borrowed from the past is the most important and operative element in the process. If, however, one accepts the idea that it is essentially not substance but authority that validates legal interpretations, one could more easily entertain the possibility that it was essentially the search for established sources of authority that spawned the whole movement of looking back in the first place’ (emphasis in original). This same view was repeated in Islamic Law and the State. Jackson, Islamic Law and the State, 80. Hallaq, ‘Review of Jackson’, 129. Jackson, Islamic Law and the State, 80–81. This was actually on two levels. First, as taqlı¯d trafficked in authority not substance, it did not, in and of itself, pre-empt the production of substantive innovations, even if it did complicate the process of validating these. Second, al-Qarafi draws a clear distinction between law and fact and argues that taqlı¯d is valid only on questions of law. On questions of fact, therefore, one could only rely on independent reasoning. On this point, see Islamic Law and the State, 127ff. Jackson, Islamic Law and the State, 101. Hallaq, ’Review of Jackson’, 129. Ibid., 130. Hallaq, ‘Introduction’, 131. Hallaq notes here that he dealt more directly with taqlı¯d in a separate article, ‘“Ifta” and Ijtihad in Sunni Legal Theory: A Developmental Account’, Islamic Legal Interpretation, ed. M. K. Masud, B. Messick and D. S. Powers (Cambridge, MA: Harvard University Press, 1996), 33–43. While this article addresses the question of mujtahids sitting as muftı¯s, it does not actually deal with the substantive definition, nature and function of taqlı¯d. On p. 34, he does make a passing reference to taqlı¯d as ‘following the authority and doctrines of others’ in the context of discussing the position of Abu al-Husayn al-Basri (d. 436/1044) who, like Hallaq at the time, apparently sees taqlı¯d as negative. At any rate, this connection between taqlı¯ d and authority plays no role whatever in Hallaq’s analysis until, as we shall see, it appears abruptly, inexplicably and entirely as his singular discovery in 2001. W. B. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), ix. 269

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51 52 53 54 55 56 57 58 59 60 61 62 63

64

65

66 67 68 69 70 71

72

73 74 75

76

Ibid., ix. Ibid., 103. Ibid., 88. Ibid., 103. Ibid., 119. Ibid., 120. Ibid., 119. Ibid., 103. Ibid., 103. Ibid., 109. Hallaq, ‘Review of Jackson’, 130. Hallaq, Authority, 43–54. Jackson is mentioned in a footnote on page 83, where Hallaq registers his disagreement with him on the meaning of a passage from Ibn Abı¯ al-Damm: ‘It will be noted that on the interpretation of this passage, I disagree with Sherman Jackson’. Otherwise, there is no attempt in Authority, Continuity and Change to reconcile his new view with such earlier statements as, ‘By building on Qara¯ fı¯’s idiosyncratic approach, Jackson has formed a distorted view of a central problem in Islamic legal history, namely, ijtiha¯ d and taqlı¯d’. ‘Review of Jackson’, 129. Later, however, one gets the impression that ijtiha¯ d has re-acquired its centrality in Hallaq’s perception of Islamic law. For example, he writes in The Impossible State: Islam, Politics and Modernity’s Moral Predicament (New York: Columbia University Press, 2013), 58: ‘In the majority, therefore, the laws, rules and regulations of the Sharı¯ʿa are largely the result of ijtiha¯ d, a domain of interpretation that rests on probability. Every accomplished jurist could exercise ijtiha¯ d, and two or more could arrive at different conclusions on the same problem with no one knowing but God which mujtahid (i.e. jurist conducting ijtiha¯ d) had arrived at the truth.’ Hallaq, Authority, ix. This perspective has continued into Hallaq’s more recent scholarship. See, e.g., Sharı¯ʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 67, 70 and passim. Indeed, his endorsement of the notion of Muslim jurists’ being possessed of ‘epistemic authority’ seems to have inspired a younger generation of scholars and students to invoke the construct without pause or question. Hallaq, Authority, 88. Ibid., 103, 113. Ibid., 111. On the centrality of principles to taqlı¯d, see ibid., 90, 92, 94, 95, 96, 98, 99 and passim. Ibid., 98. In keeping with his commitment to circumspection, Hallaq does note: ‘True, the majority of the jurists did not occupy themselves with the matter in which these principles were derived, although it remains true that many of those evolved with time and cannot be traced to a direct source or a conscious act of ijtiha¯ d. But the great majority of them, as is attested in the pages of hundreds of treatises written on the subject, understood the significance of the principles and knew how to apply them. For they were muqallids, and this is precisely what taqlı¯d meant’. Ibid., 98–9. We will return to this point shortly. E. D. Watt, Authority (New York: St Martin’s Press, 1982), 27. We should note the distinction between the Latin auctoritas (from which our modern ‘authority’ derives) and potestas. Whereas the holder of potestas is obeyed, the holder of auctoritas is simply deferred to. Obviously, Muslim jurists qua jurists are only assumed to have auctoritas. See Watt, Authority, 11–18. Ibid., 39. Ibid., 47. Al-Suyuti, Al-Radd ʿala¯ man akhlada ila¯ -l-ard ․ wa-jahila anna al-ijtiha¯ d fi kull ʿAs․rin fard․ (Cairo: Maktabat al-Thaqa¯ fa al-Diniyya, n.d.), 40. Hallaq cites an identical claim by the Shafiʿi jurist Abu Ishaq al-Isfaraʾini (d. 418/1027). See Hallaq, Authority, 9. Al-Suyu¯t․¯ı , meanwhile, cites several other scholars from other schools who express the same idea. See also Hallaq, ‘Gatae’, 10–11, where he describes the practice of jurists subsuming their ‘highly original views’ under pre-existing authorities. At that time, however, Hallaq did not appear to see this as constituting taqlı¯d. Instead, he writes, ‘the standard doctrine of Sunni Islam’ was that ‘taqlid is to be used only by the commoner (ʿa¯ mmiyy) and by those for whom the exercise of ijtihad is impossible’. Hallaq, ‘Gate’, 12. E. D. Watt points out, for example, that there is a mutually beneficial dialectical relationship between the authority figure and those who adopt him or her as an authority. As those who adopt the

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77 78

79

80 81 82 83

84 85

86 87 88 89 90 91

authority figure benefit by placing the latter’s authority behind their cause, the authority figure’s authority is also increased and solidified with each act of being invoked as an authority, which in turn increases his or her utility to those who take or follow him or her as an authority. See Watt, Authority, 11–12. Ibid., 57. His excesses aside, one is reminded in this regard of the early American political thinker, John Dickinson: ‘Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular and admirable mechanism of the British Constitution. It was not Reason that discovered or even could have discovered the odd and in the eyes of those who are governed by reason, the absurd mode of trial by jury. Accidents probably produced these discoveries, and experience has given sanction to them. This then was our guide’. See M. E. Bradford, A Better Guide than Reason (New Brunswick, NJ: Transaction Publishers, 2014), 93. I should note that I  would put much distance between the Islamic legal tradition and some of the conservative views expressed in this book. See A. El Shamsy, ‘Rethinking Taqlı¯d in the Early Shafiʿi School’, Journal of the American Oriental Society 128:1 (2008): 4. Of course, a supporter of Malik could argue that it was actually al-Shafiʿi who demanded ‘blind’ following of these reports with no criterion other than their formal validity as arbiter. Whereas al-Shafiʿi proposed a ‘scriptural empiricism’ of sorts, Malik recognized ­extra-scriptural sources and criteria to which one could appeal one’s case. Ibid., 7. Ibid., 16. Ibid., 8. Hallaq observes, however, that al-Sha¯ fiʿı¯ often performed taqlı¯d of earlier jurists on questions of substance and not merely the authority of presumptive sources. See Watt, Authority, 38. This oscillation between the identity of the source-canon and the identity of a proper interpretation thereof seems to be reflected in some of the jurists’ statements on ijtiha¯ d and taqlı¯d cited by al-Suyu¯t․¯ı in al-Radd. One also wonders how much the consistently negative animus towards taqlı¯d in the rhetoric of mainstream Sunnis owes to confrontations in the formative period with Shiites and the unassailable authority they attribute to the Ima¯ m. See, e.g., al-Ghaza¯ lı¯, Al-Mustasfa¯ min ʿIlm al-Usul, 2 vols (Bula¯ q: Mat․baʿa al-Amiriyya, 1322/1904), 2: 387, where, in rejecting taqlı¯d, he mentions that, ‘the ․h ashwı¯yah (a catch-all for fidiestic traditionalists) and the taʿlı¯mı¯yah (a reference to Isma¯ ʿı¯ lı¯ Shiites) believe taqlı¯d to be the way to knowledge of the truth’. El Shamsy, ‘Rethinking’, 13–14. In his later work, Professor Hallaq expresses what appears, prima facie, to be an identical conclusion: ‘[I]f ijtiha¯ d has a positive image, it is ultimately because of the fact that it is backed up by taqlı¯d. To put it more precisely, except for the category (or type) of the imam, ijtiha¯ d would be an undesirable practice if it were not for taqlı¯d’. See Hallaq, Authority, 21. My argument, however, is not that ijtiha¯ d would be undesirable but that it would be ineffective without taqlı¯d. Moreover, I question Professor Hallaq’s tendency to downplay the connection between authority and mimesis by tying juristic authority so tightly to juristic reasoning. For example, speaking of al-Sha¯ fiʿı¯ he writes, ‘In order to become the final authority in his school, Shafiʿi was required to shed the image of a muqallid’. Auth․ority, 39. On al-Sha¯ fiʿı¯’s display of juristic reasoning, Hallaq recognizes him as a fully-fledged jurist. Malik, by contrast, is deemed to be merely ‘a jurist of a sort’. Authority, 40. But Ma¯ lik (like Ibn Hanbal) was certainly no less a juristic authority than was al-Sha¯ fiʿı¯; and it was precisely his ‘taqlı¯dic’ (read mimetic) connection to the normativeness presumed to inhere in the early community that bolstered his status in this regard. None of this is to deny a perduring tension between ijtiha¯ d and taqlı¯d over the centuries. For example, as El Shamsy notes, ‘Whereas Sha¯ fiʿı¯ scholars before him had accepted the existence of two parallel but incommensurate discourses – the prohibition of taqlı¯d in usul and the authority of precedent in fiqh– Ibn S․ala¯ h [d. 642/1244] committed himself to the binary and exclusive opposition of ijtiha¯ d and taqlı¯d’. See ‘Rethinking’, 21. Jala¯ l al-Dı¯n al-Suyu¯t․i, Al-Ha¯ wı¯ li-l-Fata¯ wı¯ fı¯ al-Fiqh wa-ʿUlu¯m al-Tafsı¯r wa-l-H ․ adı¯th wa-l-Nah․w wa-lIʿrab wa-Saʾir al-Funun, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 1:11. Al-Suyuti, Al-Hawi li-l-Fatawi fi al-Fiqh wa-ʿUlum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Iʿrab wa-Saʾir al-Funun, (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 1: 11–12. Ibid., 1: 23. C. Mouffe, The Return of the Political (New York: Verso, 1993), 13–14. Mouffe, Return, 14. This mimetic spirit (in general and not with specific reference to Islamic law) is described and noted for its significance by J. Fueck in his classic article, ‘The Role of Traditionalism in Islam’, in Studies on Islam, trans. and ed. M. L. Swartz (New York: Oxford University Press, 1981), 99–122. 271

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Selected bibliography and further reading Asad, Talal. Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003). Coulson, Noel J. A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964). Fueck J. ‘The Role of Traditionalism in Islam’. In Studies on Islam, trans. and ed. M. L. Swartz (New York: Oxford University Press, 1981). Hallaq, Wael B. ‘Was the Gate of Ijtihad Closed?’. International Journal of Middle East Studies, 16:1 (1984): 3–41. Hallaq, Wael B. Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001). Jackson, Sherman. ‘In Defense of Two-Tiered Orthodoxy: A Study of Shiha¯ b al-Dı¯n al-Qara¯ fı¯’s Kita¯ b al-Ih․ ka¯ m fı¯ Tamyı¯z al-Fata¯ wa¯ ʿan al-Ah․ ka¯ m wa Tas․arrufa¯ t al-Qa¯ d․¯ı wa al-Ima¯ m’ (PhD dissertation, University of Pennsylvania, 1991). Jackson, Sherman. Islamic Law and the State: The Constitutional Jurisprudence of Shiha¯ b al-Dı¯n al-Qara¯ fı¯ (Leiden: Brill, 1996). Jackson, Sherman. Islam and the Problem of Black Suffering (New York: Oxford University Press, 2012). Lambton, Ann K. State and Government in Medieval Islam (Oxford: Oxford University Press, 1981). Makdisi, George. The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: E ­ dinburgh University Press, 1981). Masud, M. K., B. Messick and D. S. Powers. Islamic Legal Interpretation (Cambridge, MA: Harvard University Press, 1996). Shamsy, Ahmed el. ‘Rethinking Taqlı¯ d in the Early Shafiʿi School’. Journal of the American Oriental Society 128:1 (2008). Shamsy, Ahmed el-. The Canonization of Islamic Law: A Social and Intellectual History (Cambridge: ­Cambridge University Press, 2013). Suyuti, Jalal al-Din al-. Al-Hawi li-l-Fatawi fi al-Fiqh wa-ʿUlum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Iʿrab wa-Saʾir al-Funun, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988). Suyuti, Jalal al-Din al-. Al-Radd ʿala man Akhlada ila al-Ard wa-Jahila anna al-Ijtiha¯ d fi Kull ʿAsrin Fard (Cairo: Maktabat al-Thaqafa al-Diniyya, n.d.).

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Part III

History and interpretation Society and politics

15 Legal traditions of the ‘Near East’ The pre-Islamic context Lena Salaymeh

Introduction No legal tradition begins or exists in a vacuum.1 Islamic law, like any other legal tradition, began as (and continues to be) a fusion of legal traditions. Thus, the story of Islamic law begins before Islam began, in the legally pluralist environment of its beginning. This legal environment will be explored in two overlapping geographic spaces. First, I will focus on the Arabian Peninsula, the proximate surrounding of the Islamic movement’s beginnings. Second, I will refer to the diverse legal traditions of ‘Near Eastern’2 legal culture, of which Arabian legal traditions were a part.3 As for the temporal scope, I will concentrate on the early seventh century, specifically, the decades that immediately preceded the Islamic movement; thus, I will not include ancient ‘Near Eastern’ legal traditions (such as the laws of Hammurabi).4 The basic premise of this chapter is that late antique Muslims built and modified their legal traditions while adapting their antecedent (pre-Islamic) and their neighboring legal traditions. Pre-Islamic laws became Islamic and fused with new laws in a process that may be likened to a craft: the artwork of Islamic legal recycling.5 The recycled component parts of Islamic legal artwork are not, however, distinguishable for at least three reasons. First, for the most part, the pre-recycled materials used in Islamic legal recycling simply cannot be identified. That is, when we examine a specific Islamic law, we usually cannot determine which pre-Islamic laws were recycled. Second, many pre-­ recycled materials do not ‘belong’ to only one legal tradition. Most pre-Islamic laws were part of a shared legal culture; categorization of laws as belonging to one legal tradition is often based on the idiosyncratic preservation of historical sources and on neglect of antecedent and shared laws. (This is particularly evident in the overemphasis of biblical law as compared to ‘Near Eastern’ customary traditions.) Third, the recycled artwork of Islamic law is not static, but rather fluid and dynamic. A pre-Islamic law that might appear to have been applied as Islamic law in the late seventh century may disappear by the eighth century. In short, the recycled art of Islamic law is too hybrid and too shifting to be measured in terms of pre-Islamic legal traditions. Thus, I do not quantify which or how much pre-Islamic legal traditions were recycled in the craftwork of Islamic law. It should be clarified, however, that I am not arguing against the exercise of analysing particular Islamic legal traditions in relation to pre-Islamic legal traditions. Indeed, much of 275

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my scholarship has done precisely that.6 Nevertheless, we need to recognize the limitations to this type of inquiry: examining legal doctrines from two (or more) legal traditions conveys information about the legal culture or the socio-historical spaces of the doctrines, not about how Islamic law ‘borrowed’ pre-Islamic law. The recycled art of the Islamic legal tradition cannot be calculated in terms of pre-Islamic materials, but it can be appreciated as a holistic piece. We can and should consider the contours of pre-Islamic and Islamic legal traditions for what they convey about the region’s legal culture, about the socio-historical dynamics that shape law, and about pre-modern legal traditions more broadly. Islamic law’s recycled artwork fit within and simultaneously modified pre-existing molds (pre-Islamic legal culture and historical circumstances). In previous work, I explored the craft of Islamic legal recycling through case studies and macro-historical narratives.7 Those investigations advocated that there are variations in the abstract relationship between pre-­Islamic and Islamic legal traditions depending on the area of law (as well as on time and place). For example, while Islamic interstate law may closely overlap with pre-Islamic customary interstate law, Islamic purity laws may differ considerably from pre-Islamic ideas about purity.8 Because different areas of law are generated by distinct sources and hermeneutics, they take different shapes; in turn, these forms imitate regional legal structures that may not be limited to any given legal tradition. In addition, I have emphasized that most resemblances between pre-Islamic and Islamic legal traditions are the consequences of a shared legal culture or of equivalent historical circumstances. For instance, I have illustrated that nearly simultaneous changes in Jewish and Islamic divorce practices resulted not from ‘borrowing’, but rather socio-political changes in shared historical spaces.9 In a similar vein, Jewish, ­Zoroastrian, and Islamic jurisprudence relied heavily on oral testimony and evidence because material sources were not widely available.10 Pre-Islamic law relates to Islamic law through ‘Near Eastern’ legal culture and historical circumstances. These observations can be extended to broader and more abstract relationships between pre-Islamic and Islamic legal traditions. In this chapter, I will offer some modest suggestions for rethinking the relationship between pre-Islamic and Islamic legal traditions. In doing so, I will build on previous scholarship in order to focus on two dimensions. First, examining this relationship reveals important patterns in ‘Near Eastern’ legal culture, particularly the arrangements between law and the state.11 Specifically, understanding legal pluralism within ‘Near Eastern’ legal culture illuminates crucial differences between pre-modern legal traditions and modern legal systems. Second, investigating orthodox Muslim perspectives on the relationship between pre-Islamic and Islamic legal traditions exposes how the Muh․ ammad and Muslim scholars transformed, accepted, or rejected pre-Islamic laws. Before addressing these topics, however, I will summarize briefly the historiographic and theoretical limitations in existing scholarship on pre-Islamic legal traditions.

1  Limitations of conventional historiography Much modern Western scholarship has been oriented towards discovering the ‘origins’ of Islamic law by cataloguing which pre-Islamic legal traditions were ‘borrowed’ by Islamic legal traditions.12 A primary way in which scholars have investigated pre-Islamic legal connections has been by identifying specific Islamic laws that resemble pre-Islamic laws (especially Roman or Jewish). Some scholars have alleged broad-scale, systemic legal ‘borrowing’ based on speculative interpretations of historical evidence.13 The ‘borrowing’ paradigm is both inaccurate and problematic; it projects misleading conceptualizations of law and reflects 276

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anti-intellectual identity politics. Law cannot be ‘pure’. As noted, legal traditions inescapably produce recycled artwork, such that it would be impossible for the Islamic legal tradition (or any other) not to integrate pre-Islamic law. So much of a legal tradition consists of customary practices shared with other legal traditions that the attempt to identify exclusive (or unique) laws within a legal culture is a misleading endeavour. The integration of pre-Islamic laws within the Islamic legal tradition is so inevitable as not to merit questioning. In short, much conventional Islamic legal historiography has been limited by misunderstandings of law and of historical change. Some scholarship has acknowledged the shared legal culture of pre-Islamic and Islamic traditions as the explanatory basis for similarities between pre-Islamic and Islamic laws.14 Crone and Silverstein recognized that land distribution through lot casting demonstrated ‘the shared roots of Jewish and Islamic culture in the ancient Near Eastern tradition’.15 Young observed that ‘stoning for adultery and hand-amputation for theft were part of the corpus of Arab customary law before the revelation of the Qurʾa¯ n’;16 arguing against borrowing, Young insisted that ‘Islamic law is a natural outgrowth of its Near Eastern Semitic heritage’.17 Some scholarship has also correlated distinctions within Islamic legal schools to variations within the region’s legal culture.18 These observations, and similar ones made by other scholars, have not shifted an unfortunate paradigm in contemporary Western scholarship. The prevalent scholarly tendency continues to be weighing pre-Islamic elements in Islamic law.19 Moreover, it remains the case that inquiries into Islamic law’s legal ‘borrowings’ are largely motivated by polemics and ideology. I want to direct attention to an interesting and underappreciated implication of conventional scholarship’s emphasis on Islamic law’s ‘borrowings’ from pre-Islamic legal traditions: scholars usually focus on what they perceive to be positive or neutral aspects of the Islamic legal tradition. By comparison, when it comes to Islamic laws that are criticized in contemporary debates (such as those related to violence, the status of women, or the treatment of minorities), the possibility that the Islamic legal tradition ‘borrowed’ from pre-Islamic legal traditions conveniently disappears. 20 By way of example, many Islamic laws concerning the status of women and non-Muslims resemble pre-Islamic laws; yet, there is little (if any) scholarship alleging that Islamic law ‘borrowed’ these laws from pre-Islamic traditions. This is yet another demonstration of the ideological undercurrents in Islamic legal ‘origins’ historiography. Of course, it would be absurd to react to this bias by ascribing to equivalent, false assumptions about ‘legal borrowing’: one should not claim that the Islamic legal tradition ‘borrowed’ any pre-Islamic law, regardless of its positive, neutral, or negative associations for contemporary observers. As I have emphasized, distinguishing content within the artwork of Islamic legal recycling is a polemical, rather than an intellectual endeavour. Once we accept the limitations of the ‘origins’ paradigm, it becomes necessary to consider alternative approaches to understanding the relationship between pre-Islamic and Islamic legal traditions. To do so, I suggest beginning from the premise that Islamic legal recycling occurred within ‘Near Eastern’ legal culture. Accordingly, we should explore how the Islamic legal tradition relates to ‘Near Eastern’ legal culture. I propose that one important way in which the Islamic legal tradition connects with ‘Near Eastern’ legal culture is the construction of a particular relationship between state and non-state law. As was the case in pre-Islamic ‘Near Eastern’ legal culture, the Islamic legal tradition accommodated pluralism both within Islamic law and between Islamic and non-Islamic legal traditions; this legal pluralism defined the relationship between law and the state in ways that are distinct from contemporary legal systems. 277

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2  Law and the state in ‘Near Eastern’ legal culture The pre-Islamic Arabian Peninsula was home to and adjacent to several forms of governance, in some cases overlapping. As is widely acknowledged, pre-Islamic state practices were largely continued after the Muslim conquests.21 Recognition of the adaptation of the administrative bureaucracy, however, has overshadowed recognition of how pre-Islamic ‘law and the state’ set the stage for Islamic ‘law and the state’. In this section, I will review three state-based legal systems (tribal, Byzantine, and Sasanian) that operated in the region prior to the Islamic movement. For our purposes, the key aspect of all three of these legal systems is that they accommodated legal pluralism by limiting the state legal system’s reach into non-state legal traditions. Thus, tribal legal systems incorporated pagans, monotheists, Jews, and Christians, with their particular legal traditions. Likewise, Sasanian law accommodated ­Zoroastrian, Christian, and Jewish legal traditions. Byzantine law integrated the legal traditions of ­Christians, Jews, and pagans. The legal traditions of non-Muslims in Islamic states should be contrasted with the equivalent pre-Islamic frameworks – not in order to suggest ‘borrowing’, but rather to investigate how and why the Islamic legal tradition accepted, modified, or rejected particular aspects of the ‘Near Eastern’ legal model of ‘law and the state’.

2.1  Tribal legal system Tribal law is an underappreciated pre-Islamic legal tradition, in part because of the dearth of historical evidence. Nevertheless, the available historical evidence provides a general outline of how tribal law functioned.22 Common assumptions limit the scope of tribal law to retaliation (qis․a¯․s), which was itself normative in many pre-modern legal traditions; however, retaliation was only one component of tribal law. Collective responsibility and collective decision making (of tribal councils) were vital parts of the tribal legal tradition. It is important to recognize that arbitration was not an alternative to courts, but functioned as the primary form of adjudicatory relief.23 Tribal judges (either chiefs or arbitrators) adjudicated individual cases; tribal councils adjudicated particularly important cases.24 There appears to have been some centralized system of courts in the Arabian Peninsula, with a central court in Mecca.25 And there is recognizable continuity in how the judiciary functioned prior to and after the Islamic movement.26 The Arabian tribal legal system constituted an umbrella for several legal traditions. Jews in Arabia (both the northwest and the south) may have followed the rabbinic Jewish tradition.27 For example, Babylonian rabbis discussed issues of food and clothing particular to the Arabian context.28 In light of the known relationship between Arabian Jews and Babylonian rabbinic figures, it is possible that some Arabian Jews were educated in the Babylonian academies and, consequently, could convene rabbinic courts. However, we should not assume that Arabian Jews were rabbinic (either by historical or contemporary understandings of the term).29 Within the Arabian Peninsula, Jews were fully integrated within the tribal legal system, including acting as judges (both for Jews and non-Jews).30 There were also Eastern Christian tribes throughout pre-Islamic Arabia.31 Most Christians in the Arabian Peninsula were likely Nestorians or Miaphysites.32 Eastern Christians primarily adjudicated family law issues autonomously.33 Thus, the tribal legal system coexisted with Jewish and Eastern ­Christian law, as well as other legal traditions.

2.2  Sasanian legal system Sasanian dominance in the Arabian Peninsula may have been limited to the collection of taxes in some areas, brief political control over Yemen, and an alliance with the Lakhmids 278

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(a Christian Arab tribe).34 Yet the Sasanian legal system was likely familiar to the inhabitants of the Arabian Peninsula and the subsequent Islamic empire probably continued many Sasanian practices. Zoroastrianism was primarily associated with the Sasanian ‘ruling-class’, but it was integral to the Sasanian legal system.35 The integration of Zoroastrian law in Sasanian state law suggests that there was no distinction between divine law and state law.36 Indeed, Zoroastrian clergy were influential in the Sasanian state.37 Zoroastrian jurisprudence relied on the Zoroastrian scripture (the Awesta [sixth century]), oral legal traditions, and legal opinions (including consensus) of jurists.38 Still, Zoroastrian jurisprudence and the practice of Sasanian courts sometimes overlapped and sometimes differed.39 The Sasanian state applied Zoroastrian criminal law,40 which included capital punishment (often decapitation by sword)41 and recognized both individual and collective liability.42 Apostasy from Zoroastrianism was criminalized because Zoroastrianism was equivalent to the Sasanian ‘political ideology’.43 Much like their Muslim successors, Sasanians collected a poll tax.44 (And also like their contemporaries and successors, the Sasanian state criminalized illicit sexual relations.45) Jews were represented by both the exilarch (chief representative) and the scholars; the exilarch appointed local rabbinic judges.46 The Sasanians recognized a Christian catholicos who had powers similar to that of the Jewish exilarch.47 Non-Zoroastrians had access to both the Sasanian/Zoroastrian courts (which functioned as state courts) and their own communal courts.48 As in the case of the tribal legal system, the Sasanian legal system accommodated multiple, overlapping legal traditions.

2.3  Byzantine legal system Although the Byzantine Empire (330–1453) did not rule directly over the Arabian Peninsula, the Byzantines did form alliances with some tribes (such as the Ghassanids, a Christian Arab tribe) and thereby exerted indirect political control. More importantly, there were extensive interactions between pre-Islamic Arabs and Byzantines.49 While Byzantine law was taught formally in Syria and in Egypt, it is likely that Byzantine legal ideas spread beyond the limited confines of law schools.50 Byzantine law did not differentiate between state law and Church law, each of which shaped the other.51 Justinian I (r. 527–565) oversaw the formation of four legal sources: the Codex Justinianus, the Digest, the Institutes, and the Novellae Constitutiones. In the decades immediately preceding Islam’s beginning, Byzantine jurists focused on the Institutes and abridgments of the Novels, thereby somewhat neglecting the Codex and the Digest.52 Byzantine ecclesiastical law (specifically, Eastern Orthodox canon law) was a significant aspect of Byzantine legal activity. Two of the more important sources from the period immediately preceding Islam include Collection in Fourteen Titles (sixth century) and Collection in Fifty-One Titles (seventh century; Syria). A crucial component of legal authority in Byzantine canon law is tradition.53 While the poll tax is a known Roman legal category, it is not clear if the Byzantines collected a pre-Islamic poll tax in Egypt and possibly other areas under Byzantine rule.54 Rabbinic courts operated under the Byzantine Empire, but Byzantine law imposed several restrictions on Jews.55 Still, as was the case with the tribal and Sasanian legal systems, the Byzantine legal system coexisted with multiple legal traditions.

2.4  From pre-Islamic to Islamic state legal systems Each of these three state legal systems (tribal, Byzantine, and Sasanian) officially or unofficially aligned itself with a majority community (pagan Arabian, Zoroastrian, or Christian) while acknowledging the legal traditions of minority communities. (I use the terms ‘majority’ and ‘minority’ in terms of power, rather than number.) I suspect that the pre-modern 279

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equivalent of ‘tolerance’ does not explain why these states allowed minority communities to operate their own courts or to determine certain internal legal issues. I propose that these states recognized jurists as the generators of law and viewed states as hosts of juristic legal traditions – whether a majority or a minority legal tradition. In ‘Near Eastern’ legal culture, jurists (or sages, or scholars) were the main producers of law in their respective communities. These specialists in law were socially recognized as responsible for interpreting legal traditions (or scriptural texts) and for transmitting oral law. Master jurists taught their disciples law (often in legal circles) and differences of opinion among master jurists were recorded and studied. Jurists determined consensus and customary legal practices, two significant sources in these regional legal traditions.56 When Islamic legal activity began, it unsurprisingly operated like the other legal traditions in the region: Muslim and non-Muslim jurists were recognized as the craftsmen of their legal traditions. In turn, the Islamic state accepted Muslim and non-Muslim jurists – rather than the state itself – as conveyers of the law. In other words, the absence of a state monopolization on the production of law had significant implications for the nature of ‘Near Eastern’ legal pluralism.

3  Orthodox Islamic sources The relationship between pre-Islamic and Islamic legal traditions is not a topic that concerns only modern or Western scholars. Pre-modern Muslim scholars debated the possibility that Muh․ ammad obeyed a pre-Islamic legal tradition prior to beginning the Islamic movement. In so doing, they classified the Prophet’s potential pre-Islamic legal adherence as observance of Abraham’s laws, Moses’ laws, Jesus’s laws, or the laws of all the prophets.57 (That Muslim scholars focused on Muh․ ammad’s observance of divine laws may reflect an attempt to legitimate his prophecy vis-à-vis non-Muslims.) For the most part, this literature does not address the historical reality of the Prophet’s adherence to a non-divine legal tradition: prior to his beginning the Islamic movement, Muh․ ammad lived in a tribal society and presumably would have abided by tribal law. Moreover, tribal law shaped how the Prophet himself adjudicated issues in his community.58 While there is a dearth of sources explicitly addressing the application of tribal law in the beginnings of Islamic legal history, this dynamic can nevertheless be reconstructed from historical sources. Rather than exploring the diverse variety of pre-Islamic legal traditions, orthodox Islamic literature primarily dealt with divine pre-Islamic laws. Many Islamic texts identify three categories of these laws: those that were upheld, modified, or mentioned.59 First, Islamic scriptural sources upheld some pre-Islamic laws either explicitly or implicitly. For instance, monotheism, paying charity, and fasting were recognized as pre-Islamic practices that were upheld by Islamic law.60 Second, Islamic scriptural sources modified some pre-­ Islamic laws. For example, Qurʾa¯ n 16:115 modifies Jewish dietary laws by prohibiting fewer categories of foods.61 Jurists generally agreed about pre-Islamic practices that were upheld or modified in Islamic scriptural sources; these two categories of pre-Islamic laws were accepted as part of Islamic law. There was relatively more disagreement about the third category, pre-Islamic laws that were merely mentioned in the Qurʾa¯ n and tradition-reports. This third category includes the Qurʾa¯ nic references to the biblical notion of ‘an eye for an eye’ (Q. 5:45) and to the Talmudic notion of unjust killing being equivalent to killing all of humanity (Q. 5:32).62 Some Muslim jurisprudents explored the question of the potential legal value of pre-­ Islamic laws that were not explicitly rejected or accepted in Islamic scriptural sources.63 Some medieval Islamic jurisprudential texts addressed this topic in a section on ‘legal sources 280

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subject to disagreement’ or ‘preceding divine laws’. To be precise, Muslim jurists who dealt with this topic debated the precedential value of pre-Islamic divine laws, primarily those that were mentioned in the Qurʾa¯ n or tradition-reports. (As previously noted, these pre-Islamic divine laws were considered to be authentic or verified, as compared to pre-Islamic divine laws recorded in non-Islamic texts.) Among orthodox Islamic legal schools, there is a diversity of opinions on the precedential weight of these laws.64 H ․ anafı¯s, Ma¯ likı¯s, and the majority of Sha¯ fiʿı¯s held that non-abrogated pre-Islamic laws mentioned in Islamic scriptures are legal sources for Muslims.65 By comparison, there are conflicting opinions within the H ․ anbalı¯ school.66 That orthodox Muslim jurists considered both the validity and the obligation of pre-Islamic divine laws is evidence of one of the techniques of Islamic legal recycling. Along with these explicit discussions of pre-Islamic divine laws, one might add the less systematically studied category of ‘rejected pre-Islamic laws’. Islamic literature documents several pre-Islamic customary practices that were deemed illegitimate and nullified by the Prophet or late antique Muslim community.67 Late antique Islamic law explicitly rejected female infanticide, idolatry, usury, and sexual relationships leading to uncertain paternity. Future scholarship should examine further what pre-Islamic laws Muslims viewed themselves as nullifying and why. An additional way in which Islamic law recycled pre-Islamic legal traditions is through narratives in tradition-reports. Specifically, some Muslim traditionists who had converted from Judaism or who were familiar with Jewish texts reported biblical and rabbinic narratives and scriptural hermeneutics in what came to be identified as ‘Israelite stories’ (isra¯ ʾı¯liyya¯ t).68 Initially, these stories were integrated in Islamic hermeneutics with little comment; but, over time, some Muslim scholars would reject these reports because of their content or perceived ‘foreignness’.69 No systematic study has examined how Israelite stories informed Islamic legal doctrines; moreover, it is not possible to determine to what extent Islamic law adapted Jewish law through Israelite narratives. Nonetheless, complementing the explicit juristic discussion of pre-­Islamic divine laws, some orthodox Islamic sources convey information about more subtle processes of Islamic legal recycling.

Conclusion The intermixing of pre-Islamic legal traditions constituted the legal starting point for Islamic law’s flourishing. Rather than investigating specific legal doctrines in order to measure the pre-Islamic content of Islamic law, we should focus our attention on how the Islamic legal tradition reveals the shape of pre-Islamic legal cultures and socio-historical situations. In this chapter, I summarized a significant, but understudied dimension of how pre-Islamic and Islamic traditions relate to each other. Pre-Islamic and Islamic legal traditions share a particular form of legal pluralism in which jurists play crucial roles in the articulation of law (including state law). I also have highlighted the importance of considering how orthodox Islamic sources dealt with the topic of pre-Islamic legal traditions. Instead of seeking to identify which pre-Islamic laws became Islamic, I contend that we should explore relationships between pre-Islamic and Islamic legal traditions by asking different types of questions. For example, among the legal cultures of the ‘Near East’, some traditions condemned torture and others permitted it; how does the orthodox Islamic legal prohibition against torture relate to these pre-Islamic traditions?70 Scriptural sources and oral law were at the core of legal hermeneutics in several ‘Near Eastern’ legal traditions.71 Why did the Islamic tradition develop a relatively more formulaic orthodox jurisprudential methodology (us․u¯l al-fiqh) than pre-Islamic legal traditions? This chapter offered broad suggestions on more productive 281

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scholarly questions about the relationship between pre-Islamic and Islamic legal traditions. Understanding the pre-Islamic context of Islamic law necessitates exploring far-reaching patterns in ‘Near Eastern’ legal culture.

Notes 1 I differentiate between ‘legal tradition’ and ‘legal system’. The former is a broader historical and geographic category than the latter; the latter presumes an enforcement mechanism. 2 The ‘Near East’ is a British colonial term; I use it in this chapter for the sake of convenience, but with quotes to indicate that it is problematic. 3 On Arabian law as ‘Near Eastern’, see Patricia Crone, Roman, Provincial and Islamic Law: The O ­ rigins of the Islamic Patronate (Cambridge: Cambridge University Press, 2002), 93 (‘To some extent law in Arabia would thus appear to have been Near Eastern law’); David S. Powers, ‘The Islamic ­Inheritance System: A Socio-Historical Approach’, in Islamic Family Law, ed. Chibli Mallat and Jane Connors. Arab and Islamic Law Series (London: Graham & Trotman, 1990), 15 (‘Near Eastern Provincial Law’); Robert Roberts, The Social Laws of the Qorân: Considered and Compared with Those of the Hebrew and other Ancient Codes (London: Curzon Press, 1971), 2 (‘There are many customs which are common to all Eastern nations and cannot be traced to the code of any particular people’). See also Wael B. Hallaq, ‘Review: The Use and Abuse of Evidence: The Questions of Provincial and Roman Influences on Early Islamic Law’. Journal of the American Oriental Society 110(1) (1990): 79–91. 4 Samuel A. Jackson, A Comparison of Ancient Near Eastern Law Collections Prior to the First Millennium BC (Piscataway, NJ: Gorgias Press, 2008). 5 I introduced this metaphor in my book, Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016). 6 Lena Salaymeh, ‘Every Law Tells a Story: Orthodox Divorce in Jewish and Islamic Legal Histories’. UC Irvine Law Review 4(1) (2014): 19–63; Lena Salaymeh, ‘“Comparing” Jewish and Islamic Legal Traditions: Between Disciplinarity and Critical Historical Jurisprudence’. Critical Analysis of Law, New Historical Jurisprudence 2(1) (2015): 153–72; Salaymeh, The Beginnings of Islamic Law; Lena Salaymeh and Zvi Septimus, ‘Temporalities of Marriage: Medieval Jewish and Islamic Legal Debates’, in Talmudic Transgressions: Essays in Honor of Daniel Boyarin, ed. C. Fonrobert, et al. (Leiden: Brill, 2017). 7 The case studies are the even-numbered chapters in Salaymeh, The Beginnings of Islamic Law. 8 I began exploring distinctions within areas of Islamic law in ibid. 9 Salaymeh, The Beginnings of Islamic Law, Chapter 6. 10 Historical circumstances explain many of the similarities observed by János Jany, Judging in the ­I slamic, Jewish and Zoroastrian Legal Traditions: A Comparison of Theory and Practice. Cultural Diversity and Law Series (Oxford: Routledge, 2012), 200. 11 As I have explained elsewhere, my use of the term ‘state’ does not refer to the modern nation-state. Instead, ‘[t]he state, or pattern of rule, is the contingent product of diverse actions and political struggles informed by the beliefs of agents rooted in traditions’. Mark Bevir and R. A. W. Rhodes, The State as Cultural Practice (Oxford: Oxford University Press, 2010), 99. I explored some of the state-based dimensions of the Islamic legal tradition in Lena Salaymeh, ‘Taxing Citizens: Socio-­ Legal Constructions of Late Antique Muslim Identity’. Islamic Law and Society 23(4) (2016): 333–67. 12 For a more thorough examination of this scholarship, see Salaymeh, The Beginnings of Islamic Law. 13 For a concise overview of this body of scholarship, see Knut S. Vikør, ‘The Origins of the Shari’ah’, in The Ashgate Research Companion to Islamic Law, ed. Rudolph Peters and P. J. Bearman (Farnham, Surrey: Ashgate, 2014). 14 See Chapters 5 and 6 of Salaymeh, The Beginnings of Islamic Law. 15 Patricia Crone and Adam Silverstein ‘The Ancient Near East and Islam: The Case of Lot-Casting’. Journal of Semitic Studies 55(2) (2010): 432. 16 Walter Young, ‘Stoning and Hand-Amputation: The Pre-Islamic Origins of the ․hadd Penalties for zina¯ and sariqa’ (Master’s thesis, McGill University, 2005), 7. 17 Ibid., 8. 18 For example, Hjerrild suggests that Ima¯ mı¯ Shı¯ʿı¯ acceptance of temporary marriage reflects Sasanian precedents. Bodil Hjerrild, ‘Islamic Law and Sasanian Law’, in Law and the Islamic World: Past and 282

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22 23 24 25 26 27 28 29 30 31

32 33 34 35 36 37 38 39

Present, ed. Christopher Toll and Jakob Skovgaard-Petersen (Copenhagen: Royal Danish Academy of Sciences and Letters, 1995), 54. I would argue, however, that Zoroastrians were not the only group to practise temporary marriage, since Jews and pagan Arabs also likely practised some form of it. See Salaymeh and Septimus, ‘Temporalities of Marriage’. For a summary of this scholarship, see Vikør, ‘The Origins of the Shari’ah’. For a more specific example, see Jokisch’s claims about Islamic legal ‘borrowings’ from Roman law in Benjamin Jokisch, Islamic Imperial Law: Harun Al-Rashid’s Codification Project, ed. Lawrence I. Conrad. Studien zur Geschichte und Kultur des islamischen Orients Series (Berlin and New York: Walter de Gruyter, 2007). On contemporary propagandizing against Islamic law and the tripartite trope of violence, women and minorities, see Lena Salaymeh, ‘The Politics of Inaccuracy and a Case for “Islamic Law”’, The Immanent Frame (7 July 2011), http://blogs.ssrc.org/tif/2011/07/07/the-politics-of-­inaccuracyand-a-case-for-islamic-law (accessed 24 July 2018); Lena Salaymeh, ‘Commodifying “Islamic law” in the U.S. Legal Academy’. Journal of Legal Education 63(4) (May 2014): 640–6; Lena Salaymeh, ‘Propaganda, Politics, and Profiteering: Islamic Law in the Contemporary U.S.’, Jadaliyya (2014), http://www.jadaliyya.com/pages/index/19408/propaganda-politics-and-profiteering_islamic-law-i (­accessed 24 July 2018). On continuity in political administration, see H. M. T. Nagel, ‘Some Considerations Concerning the Pre-Islamic and the Islamic Foundations of the Authority of the Caliphate’, in Studies on the First Century of Islamic Society, ed. G. H. A. Juynboll. Papers on Islamic History Series (Carbondale: Southern Illinois University Press, 1982); Petra Sijpesteijn, Shaping a Muslim State: The World of A Mid-Eighth-Century Egyptian Official (Oxford: Oxford University Press, 2013). Sadik Kirazli, ‘Conflict and Conflict Resolution in the Pre-Islamic Arab Society’. Islamic Studies 50(1) (2011): 25–53. On pre-Islamic arbitration, see Muhammad Yusuf Guraya, ‘Judicial Institutions in Pre-Islamic Arabia’. Islamic Studies 18(4) (1979): 341–5. Ibid., 330. Ibid., 333. Mura¯ d Masʿu¯da¯ nı¯. Ta¯ rı¯ kh al-qad ․ a¯ ʾ ʿinda al-ʿarab: min al-ʿas․r al-ja¯ hilı¯ ․h attá al-ʿas․r al-ʿabba¯ sı¯ ­al-isla¯ mı¯ . (Beirut: Da¯ r al-Kutub al-ʿIlmı¯ yah, 2014). On the confessional affiliations of the Arabian Peninsula’s inhabitants, see Robert G. Hoyland, Arabia and the Arabs: From the Bronze Age to the Coming of Islam (London: Routledge Press, 2001), 146. Gordon Newby, A History of the Jews of Arabia: From Ancient Times to Their Eclipse under Islam (­Columbia: University of South Carolina, 1988), 54. This claim is in contrast to Lecker’s comments, in Michael Lecker, ‘A Note on Early Marriage Links between Qurashı¯s and Jewish Women’. Jerusalem Studies in Arabic and Islam 10 (1987): 17–39. Newby, A History of the Jews of Arabia, 77. Eastern Christians included Orthodox, Miaphysites (also known as Monophysite), Nestorians, and Maronites. These groups generally adhered to the Apostolic canons, the Corpus Canonum. Trimingham explains that ‘[a]t the time of the rise of Islam, all the northern Arabs of Syria and Mesopotamia, cultivators and nomads alike, were not merely monotheists but offered some measure of allegiance to Jesus Christ’. John Spencer Trimingham, Christianity among the Arabs in Pre-Islamic Times (London: Longman Group Limited, 1979), 6. Hoyland identifies Christian tribes in eastern, southern, and northern parts of the Peninsula. Hoyland, Arabia and the Arabs, 147. Ghada Osman, ‘Pre-Islamic Arab Converts to Christianity in Mecca and Medina: An Investigation into the Arabic Sources’. The Muslim World 95(1) ( January 2005): 67–80. Lev E. Weitz, Between Christ and Caliph: Law, Marriage, and Christian Community in Early Islam (Philadelphia: University of Pennsylvania Press, 2018) Michael Lecker, ‘The Levying of Taxes for the Sassanians in Pre-Islamic Medina (Yathrib)’. ­Jerusalem Studies in Arabic and Islam 27 (2002): 109–26. Michael G. Morony, ‘Religious Communities in Late Sasanian and Early Muslim Iraq’. Journal of the Economic and Social History of the Orient 17(2) (1974): 115. Jany, Judging in the Islamic, Jewish and Zoroastrian Legal Traditions. János Jany, ‘The Four Sources of Law in Zoroastrian and Islamic Jurisprudence’. Islamic Law and Society 12(3) (2005): 304. Ibid. Ibid., 326. 283

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40 41 42 43 4 4 45 46 47 48 49 50 51 52 53 54

55 56 57 58 59 60 61 62 63 64 65 66 67 68

János Jany, ‘Criminal Justice in Sasanian Persia’. Iranica Antiqua XLII (2007): 347–86 (349). Ibid., 352. Ibid., 371. Ibid., 360, 384. The overlap between state ideology and confessional affiliation may also explain mass conversions from Zoroastrianism to Islam. On the relationship between citizenship and Muslim identity, see Salaymeh, ‘Taxing Citizens’. Morony, ‘Religious Communities in Late Sasanian and Early Muslim Iraq’, 119. Jany, ‘Criminal Justice in Sasanian Persia’, 370. The Sasanian Empire authorized and recognized rabbinic courts. Uriel I. Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam. Divinations: Rereading Late Ancient Religion Series (Philadelphia: University of Pennsylvania Press, 2011), 51. Ibid. Ibid., 47. See Irfan Shahı¯d, Rome and the Arabs: A Prolegomenon to the Study of Byzantium and the Arabs (­Washington, DC: Dumbarton Oaks Research Library and Collection, 1984). On ‘Roman Provincial Law’ as the hybrid form of Byzantine law in the region, see Crone, Roman, 13–15. George Mousourakis, Roman Law and the Origins of the Civil Law Tradition (Cham, Switzerland: Springer, 2015), 215. Ibid. David Wagschal, Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883. Oxford Early Christian Studies Series (Oxford: Oxford University Press, 2015), 280. On Byzantine taxation, see Angelo Segrè, ‘Studies in Byzantine Economy: Iugatio and Capitatio’. Traditio 3 (1945): 101–27. On the possibility that the Byzantines did not collect a poll tax, see Petra M. Sijpesteijn, ‘The Arab Conquest of Egypt and the Beginning of Muslim Rule’, in Egypt in the Byzantine World, 300–700, ed. Roger S. Bagnall (Cambridge: Cambridge University Press, 2007), 445. Solomon Grayzel, ‘The Jews and Roman Law’. The Jewish Quarterly Review 59(2) (October 1968): 93–117. Jany, Judging in the Islamic, Jewish and Zoroastrian legal traditions, 49. ʿAbd al-Rah․ ma¯ n ibn ʿAbd Alla¯ h Darwı¯sh. al-Shara¯ ʾiʿ al-sa¯ biqah wa-madá ․h ujjı¯ yatiha¯ fı¯ al-sharı¯ʿah al-isla¯ mı¯ yah (Riyadh: al-ʿUbaikan, 1989), 274. By way of example, the treaty that established the Muslim community in Medina followed tribal practices. See Michael Lecker, The ‘Constitution of Medina’: Muh․ammad’s First Legal Document. Studies in Late Antiquity and Early Islam Series 23 (Princeton, NJ: The Darwin Press, 2004). Kamali summarizes these three categories. Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. edn (Cambridge: Islamic Texts Society, 1991), 230–1. Darwı¯sh, al-Shara¯ ʾiʿ al-sa¯ biqah, 255–6. This example is cited in Kamali, Principles, 231. On Jewish and Islamic dietary regulations, see ­David M. Freidenreich, Foreigners and Their Food: Constructing Otherness in Jewish, Christian, and Islamic Law (Berkeley: University of California Press, 2011). These two examples are cited in Kamali, Principles, 232. The phrase ‘eye for an eye’ appears in ­E xodus 21:24 and the Talmudic discussion of unjust killing appears in Mishnah, Sanhedrin 4:5 and in Babylonian Talmud, Sanhedrin 37a. See Anwar Shuʿayb ʿAbd al-Sala¯ m. Sharʿ man qablana¯ abma¯ hı¯yatuhu wa-h․ujjı¯yatuhu wa-nashʾatuhu wa-d․awa¯ bit․uhu wa-tat․bı¯qa¯ tuh (Kuwait: Lajnat al-Taʾlı¯ f wa-l-Taʿrı¯ b wa-l-Nashr, 2005); Darwı¯sh, alShara¯ ʾiʿ al-sa¯ biqah. Kamali suggests that a majority of Hanafi, Maliki, and Hanbali jurists, as well as some Shafiʿi jurists, considered pre-Islamic laws mentioned in Islamic scripture to be binding. Kamali, Principles, 232. However, I follow Darwı¯sh, who suggests a different configuration of the juristic disagreement. Darwı¯sh, al-Shara¯ ʾiʿ al-sa¯ biqah, 321–8. Ibid., 329–33. I am unaware of any systematic study that identifies ‘ ja¯ hilı¯’ laws that were considered nullified by Islamic law. Roberto Tottoli, ‘Origin and Use of the Term Isra¯ ʾı¯ liyya¯ t in Muslim Literature’. Arabica 46(2) (1999): 193–210.

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69 Lowin explains that, in the 14th century, isra¯ ʾı¯liyya¯ t came ‘to designate dubious traditions which were to be rejected because of either objectionable content or its non-Muslim origin’. Shari L. Lowin, ‘Abraham in Islamic and Jewish Exegesis’. Religion Compass 5(6) (2011): 225. 70 ʿAbd al-Sala¯ m Jumʿah Za¯ qu¯d. Taʿdhı¯b al-insa¯ n: dira¯ sah fı¯ it․a¯ r al-sharı¯ʿah al-isla¯ mı¯yah wa-l-qa¯ nu¯n al-­duwalı¯ li-h․uqu¯q al-insa¯ n (Riyadh: Maktabat al-Qa¯ nu¯n wa-l-Iqtis․a¯ d, 2013). Jany observes that ­Zoroastrian law allowed torture in criminal procedures, but Jewish and Islamic law prohibited it. Jany, Judging in the Islamic, Jewish and Zoroastrian Legal Traditions, 201. 71 Although I disagree with many of the details, Jany offers a useful chart comparing Islamic, ­Jewish, and Zoroastrian legal traditions, in Judging in the Islamic, Jewish and Zoroastrian Legal Traditions, 199–207.

Selected bibliography and further reading ʿAbd al-Sala¯ m, Anwar Shuʿayb. Sharʿ man qablana¯ : ma¯ hı¯yatuhu wa-h․ujjı¯yatuhu wa-nashʾatuhu wa․dawa¯ bit․uhu wa-tat․bı¯qa¯ tuh (Kuwait: Lajnat al-Taʾlı¯ f wa-l-Taʿrı¯ b wa-l-Nashr, 2005). Darwı¯sh, ʿAbd al-Rah ․ ma¯ n ibn ʿAbd Alla¯ h. al-Shara¯ ʾiʿ al-sa¯ biqah wa-madá ․hujjı¯yatiha¯ fı¯ al-sharı¯ʿah ­al-isla¯ mı¯yah (Riyadh: Al-ʿUbaikan, 1989). Hallaq, Wael B. The Origins and Evolution of Islamic law (Cambridge: Cambridge University Press, 2005). Jany, János. Judging in the Islamic, Jewish and Zoroastrian Legal Traditions: A Comparison of Theory and Practice. Cultural Diversity and Law Series (Oxford: Routledge, 2012). Jany, János. ‘The Four Sources of Law in Zoroastrian and Islamic Jurisprudence’. Islamic Law and Society 12(3) (2005): 291–332. Morony, Michael G. ‘Religious communities in Late Sasanian and Early Muslim Iraq’. Journal of the Economic and Social History of the Orient 17(2) (1974): 113–35. Salaymeh, Lena. The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge: ­Cambridge University Press, 2016). Salaymeh, Lena. ‘Taxing Citizens: Socio-Legal Constructions of Late Antique Muslim Identity’. ­I slamic Law and Society 23(4) (2016): 333–67. Salaymeh, Lena. ‘“Comparing” Jewish and Islamic Legal Traditions: Between Disciplinarity and ­Critical Historical Jurisprudence’. Critical Analysis of Law, New Historical Jurisprudence 2(1) (2015): 153–72. ­ rigin Schacht, Joseph. ‘Pre-Islamic Background and Early Development of Jurisprudence’. Chap. II in O and Development of Islamic Law, ed. Majid Khadduri and Herbert J. Liebesny (Washington, DC: Middle East Institute, 1955), 28–56. Simonsohn, Uriel I. A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam. ­Divinations: Rereading Late Ancient Religion Series (Philadelphia: University of Pennsylvania Press, 2011).

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16 The place of custom in ­Islamic law Past and present Ayman Shabana

Introduction The relationship between law and custom has been one of the enduring questions that jurists in different legal cultures had to contend with. Not only has custom often been recognized as one of the main sources of law, but it has also shaped the definition of law itself.1 In the Western legal tradition, discussions over the customary foundations of law, or the pre-law phase, can be traced to the distinction in Greek and Roman sources between written and unwritten origins of the law, where the latter were usually associated with the notion of custom. Subsequently, custom continued to play an important role in European legal history, both in the civil law tradition and to a greater extent in the common law tradition.2 Similar discussions on the role of custom in legal systems can also be found in other legal traditions such as those of India, China and Africa.3 In order to determine the exact legal status of custom, these discussions often address important questions such as its relationship with other sources, as well as requisite conditions for legal validation or recognition of certain customs. Central to these discussions is the fundamental difference between mere habit of a particular group in a particular culture and a binding custom, as well as the necessary conditions required for the transformation of the former into the latter.4 Ultimately, despite modern misgivings about custom and its role in the rational process of law making, some legal philosophers argue that custom remains the most important source for solving practical problems since ‘moral principles, written laws, legal doctrines and philosophical writing are all articulations of pre-­ existing customs’.5 In the Islamic legal tradition, the relationship between Shariʿah and custom is quite distinctive due to several epistemological and hermeneutical considerations. On the one hand, the divine textual foundations of Shariʿah imply a fixed legal structure, but its claim to continued universal validity not only necessitated adaptation of preceding conventions but also require ongoing accommodation of changing customs, on the other. Questions pertaining to the place and function of custom in Islamic law are not limited to the classical tradition, reflecting the primacy of Shariʿah as the main source of legal norms within a Muslim polity, but they remain as important and relevant in the modern period also, although in a completely changed legal landscape. The development of the concept of custom in the Islamic legal tradition illustrates juristic engagement with the important notions of continuity and change, and is, therefore, important for understanding the process of Islamic legal construction. The task 286

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of adapting and accommodating common customs illustrates one of the main tensions that jurists, both past and present, have to grapple with; namely, the need to enhance the flexibility of law without compromising its distinctive character and normative foundations. This chapter seeks to highlight the role of custom in Islamic legal discourses during the pre-modern period and also to explore later developments in the modern context.

1  Conceptualization of custom In Arabic the concept of custom is associated with two main terms: ʿUrf and ‘a¯ da. ʿUrf is derived from the root that means ‘to know’ and stands for what is known or what is recognized. ‘A¯da is derived from the root that means ‘to return’ or ‘to repeat’ and it stands for a recurrent or habitual behaviour. Although they are often used as synonyms, significant differences have also been noted between ʿUrf and ʿa¯ da. The term ʿa¯ da (pl. ʿa¯ da¯ t) covers both individual as well as collective habits, while ʿUrf (pl. aʿra¯ f ) covers only collective ones. Moreover, the term ʿa¯ da denotes a habitual or recurrent course of action regardless of whether it is based on any type of rational justification, while the latter is considered important for the definition of ʿUrf.6 The term ʿUrf occurred twice in the Qurʾan,7 while various other derivatives of the two terms occurred frequently in both the Qurʾan and the Sunna of the Prophet. In particular, the term maʿru¯f and its opposite munkar are perhaps the most famous examples. The term maʿru¯f literally means ‘what is known’ but is used also in the sense of ‘what is morally good’. Similarly, the term munkar literally means ‘what is unknown’, but it is used in the sense of ‘what is morally bad’. Both maʿru¯f and munkar are used in this technical moral sense in the Islamic normative tradition, which is captured in the fundamental moral principle of commanding the good and forbidding the evil (al-amr bi-l-maʿru¯f wa-l-nahy ‘an al-munkar). These two terms were used in the pre-Islamic period to signify (dis)approved cultural or moral standards. In the Islamic foundational texts, the source of the morality underlying these terms became the will of God rather than pre-Islamic Arabian standards.8 The moral definition of the term maʿru¯f raises the issue of moral justification and whether the source of this justification would be limited to divine revelation or whether it could also be extended to include reason. The question of moral epistemology in the Islamic normative tradition was the subject of an extensive and also extended debate, particularly in theology and legal theory, which eventually became one of the main points of distinction between rationalist and traditionalist orientations within this tradition. The linguistic and cultural background of these terms is crucial for understanding the role of custom, in the sense of common or recurrent practice, in the Islamic legal tradition. The semantic association between ‘what is known’ and ‘what is morally good’ in the meaning of terms such as ʿUrf and maʿru¯f may help explain the general juristic attitude towards custom, which could be characterized as prima facie recognition. Especially in the later phases of the tradition after the concept of custom became well established, jurists often note that unless a common custom conflicts with one of Shariʿah’s fundamental principles, it should be recognized as a source of legal derivation. But this does not mean that juristic discussions over custom were restricted to its role as a legal source. In fact, the concept was employed in various other ways in different types of legal genres.

2  Shariʿah and custom in the formative period Repeated references to ʿUrf and maʿru¯f, in the sense of both what is commendable and what is customary within the foundational sources, inspired juristic discussions on a wide range of issues under the general theme of the relationship between Shariʿah and custom. 287

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For example, several verses in the Qurʾan refer to ʿUrf as a standard of evaluation as is the case with the proper amount of maintenance to be provided for breastfeeding mothers (2:233) as well as assessment of equitable mutual rights and duties between spouses (2:228). In addition to these direct and explicit references to ʿUrf, several other texts make implicit references to ʿUrf for the clarification of undefined categories such as average standard of living (5:89; 65:7) and the definition of moral standards expected of acceptable witnesses (65:2).9 Similarly, several Prophetic reports include references to custom as a basis for certain rules. One of the most famous examples is the case of salam, which is a type transaction in which the price is paid in advance for a commodity to be delivered at a future date. Although this type of transaction goes against a general rule prohibiting the sale of commodities that are not readily available at the time of contract, it was deemed permissible on the basis of common custom. In fact, reports indicate that the Prophet made this concession in the case of salam when he emigrated to Medina because it was a well-known transaction. The case of salam was used by later jurists in order to justify the permissibility of istis․na¯ ʿ (contract of manufacture), which involves commissioning a craftsman to produce a particular item. On the basis of textually based examples such as salam as well as other derived examples such as istis․na¯ ʿ, jurists developed custom as a principle for the construction of numerous subsequent rules. Initially, these and many other similar examples were subsumed under the general theme of istih․sa¯ n, which was usually contrasted with analogical reasoning when the latter results in burdensome conclusions. A jurist may resort to istih․sa¯ n in order to avoid such burdensome conclusions on the basis of another text, Ijma¯ ʿ, custom, or necessity. Although istih․sa¯ n has consistently been associated with the Hanafi school, the Maliki school was also famous for its use of this doctrine.10 It is important to note here that some jurists predicate the permissibility of istis․na¯ ʿ on consensus, while others do so on the basis of general custom. This in turn reveals the close relationship between Ijma¯ ʿ and custom in jurisprudential debates.11 The roots of this relationship go back to a particular report that is usually cited to prove the authority of these two concepts: ‘What Muslims deem good is good in the sight of God’. This report, however, is traced to its narrator, the companion ʿAbdullah b. Masʿud rather than the Prophet himself. The jurists, however, distinguish between Ijma¯ ʿ and ʿUrf on several grounds: Ijma¯ ʿ refers to the agreement of qualified jurists while ʿUrf refers to the agreement of people in general; Ijma¯ ʿ is considered binding for subsequent generations, while ʿUrf is considered binding only for those who recognize it; Ijma¯ ʿ requires considered deliberation on the issue in question, while ʿUrf emerges in society and it is adopted on the basis of its popularity and circulation; jurists cannot violate an established Ijma¯ ʿ, while parties to a contract can stipulate a condition that contradicts a common practice; a valid Ijma¯ ʿ is one that is based on a textual source, while ʿUrf does not have to. Another related concept has been the Medinan practice (ʿamal), which was formulated by Malik b. Anas and remained one of the main distinctive features of the Maliki school. For Malik, a prevalent practice in the hometown of the Prophet should be considered normative because it must be indicative of a Prophetic Sunna either explicitly or implicitly.12 It should be noted that the Medinan ʿamal, which is considered normative, is the one that was established during the lifetime of the Prophet. The term, however, continued to be used within the Maliki school to refer to prevalent practices which are considered normative in general even subsequently outside of Medina. It is ʿamal in this sense that is often compared to ʿUrf and even used as its synonym.13 Apart from references in the foundational sources to custom (ʿUrf ) in the sense of common practices, particularly in the area of transactions (muʿa¯ mala¯ t), other meanings gradually emerged with the cumulative development of the normative tradition, particularly in the 288

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area of legal theory. One important example was the concept of custom (ʿa¯ da) in the sense of established and recurrent norms in the universe. It was used as a type of rational proof in several debates on issues such as religious-legal obligation (taklı¯f ). These debates were for the most part inspired by early theological debates centring around the general theme of defending revelation and religious claims on rational grounds. Early theologians often made the argument that the veracity of religious beliefs has to be proven primarily by reason because revelatory sources cannot be used to prove themselves. For example, the AshʿariShafiʿi theologian-jurist Imam al-Haramayn al-Juwayni (d. 478/1085) divided the sources of religious knowledge into three main types: reason, miracles and textual sources (i.e. the Qurʾan, Sunna and Ijma¯ ʿ respectively).14 While reason establishes necessary (intuitive) knowledge, miracles prove the veracity of Prophets, and subsequently religious texts. The role of custom is evident in the fact that the veracity of miracles is dependent on their ability to break with the ordinary, the conventional and the customary.15 One of the important theological debates highlighting this use of custom in verifying the Prophets’ miracles is the debate on causality. Since the Qurʾan speaks repeatedly about the God-given ability of the Prophets to break the conventional order of the universe in the form of miracles, Muslim theologians, particularly the Ashʿaris, discussed the relationship between causes and effects in terms of customary association by means of which effects occur with, rather than because of, their causes.16 God can break this customary association at will, and therefore, this causal connection between causes and effects should not be seen as necessary or independent (of God’s will). This divine cosmic custom manifested in the relationships governing the different natural objects was also extended to include the human condition as well as the human experience of the created world. Recognition of this notion of custom as a type of rational proof in juristic discourses can be explored in debates concerning verification of reports, particularly of the successive type (mutawa¯ tir) and also on establishing the authority of consensus (Ijma¯ ʿ). While these two concepts are often vindicated on the basis of textual grounds, some jurists appealed to custom in order to establish their feasibility and also authority. For example, in his discussion on the types of reports, al-Juwayni distinguished three main types: reports that can be categorically trusted; reports that can be categorically rejected; and reports that cannot be either trusted or rejected categorically. The first type includes definitive reports denoting necessary knowledge and those that are conveyed through continuous successive narration (tawa¯ tur) as supported and confirmed by established conventions and credible circumstantial evidence. A successive report is one that was conveyed by such a large number of narrators that it would be inconceivable to discredit all of them. It is this type of reports that is used to support the Prophets’ miracles as they were successively reported from one generation to the other.17 The role of custom in verifying and supporting Prophets’ miracles, therefore, is twofold. On the one hand, custom indicates the distinctive character of a miracle; namely, its ability to break conventional norms and common customs. On the other hand, custom also supports the veracity of a miracle; namely, its reliance on customarily credible reporting through succession (tawa¯ tur). The second (discredited) type includes reports that contradict what is deemed necessary knowledge, conventional norms; or established customs. For example, if a report purports to convey a major event that requires a large number of witnesses, it must be corroborated by multiple supporting reports by several narrators rather than a single isolated report. If it fails to secure such corroborative evidence, it must then be rejected due to its contradiction of common conventions. The third type includes the majority of solitary (a¯․ha¯ d) reports that denote speculative rather than definitive knowledge.18 In major part, the argument used to support the rational feasibility and also authority of tawa¯ tur is also used to support 289

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the feasibility and authority of Ijma¯ ʿ especially with regard to major fundamental principles rather than individual speculative rulings. But even in the case of the latter, Ijma¯ ʿ would not be inconceivable. For example, in support of the feasibility of Ijma¯ ʿ, al-Juwayni put forth the argument that consensus of the jurists goes against the general tendency of reasonable individuals to disagree rather than to agree. Earlier precedents of consensus must, therefore, be based on strong credible supporting evidence. He does not even rule out the possibility that this original supporting evidence might itself over time be lost or forgotten while the resultant consensus remains intact.19

3 Custom in the legal tradition: classifications, authority and applications Juristic discussions over the concept of custom reveal the numerous classifications that the jurists developed on the basis of different considerations. For example, with regard to its source, custom is divided into two main types: customs initiated by Shariʿah and customs initiated by people. Shariʿah-based customs refer to specific meanings and usages of particular terms in the idiom of Shariʿah such as the specific meanings of words such as prayer (s․ala¯ t) and fasting (s․awm). When these words are used within the context of juristic discussions, they refer to their idiomatic meaning within Shariʿah rather than their literal meanings indicating supplication and abstention respectively. Human customs, on the other hand, denote customs originating in people’s actions and common practices. While Shariʿah-based customs are mainly linguistic in nature due to their articulation within the foundational sources, human customs include, in addition to linguistic conventions, also practice-based customs. This, in turn, marks one of the important binary classifications of custom on the basis of its originating cause: verbal or linguistic custom (ʿUrf qawlı¯) and practical custom (ʿUrf ʿamalı¯ or fiʿlı¯). In general, linguists recognize custom as one of the main sources for the definition of meaning and signification of terms. For example, while the term da¯ bba can refer to any animal, it is conventionally used to refer either to a horse or a donkey. Similarly, while the Qurʾan uses the word lah ․m (meat) to refer to fish, its conventional usage does not include this type of meat.20 The role that this linguistic dimension of custom plays in the construction of legal rules has been recognized almost unanimously as one of the main manifestations of custom in the Islamic legal tradition. Linguistic conventions are further divided into two main types: singular (e.g. da¯ bba and lah․m) and compound (e.g. idiomatic expressions and phrases). For example, when the Qurʾan speaks about prohibition of female relatives, what is meant is prohibition of marrying one’s female relatives.21 Practical customs, on the other hand, refer to common practices, which would include both people’s habitual practices in their private or social lives on the one hand and common practices involved in their civil transactions, on the other. Examples of the former include what people eat, how they dress, and how they communicate with each other. Similarly, many etiquettes in the area of social ethics are defined by common (expected) customs such as proper treatment of guests, neighbors and friends. Famous examples in the area of transactions that are often cited in juristic discussions involve definition of unspecified variables such as: length of stay at public bathhouses; ancillary rights associated with the sale of certain types of property; average amounts; and means of measurement.22 Both linguistic and practical customs are divided, in terms of their scope and degree of circulation, into two main types: general and specific. The former includes universal customs that are prevalent among Muslims or throughout Muslim lands. The latter includes customs that are specific to certain regions, communities or professional groups. 290

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In addition to these main classifications of custom, further classifications were also devised on the basis of other considerations such as their compatibility with Shariʿah and continuity. With regard to their compatibility with Shariʿah, customs are divided into three main categories: compatible, incompatible and unstated. Compatible customs include pre-Islamic Arabian customs that were approved by the Prophet and were subsequently incorporated within the Islamic normative system, such as placing responsibility for blood money on one’s agnatic relatives. Incompatible customs include the ones that were condemned by the Prophet and were therefore rejected, such as certain types of marriage, female infanticide, drinking wine and dealing in usury. Unstated customs include the ones that are not clearly specified in Shariʿah and that require close analysis in light of the fundamental principles of Shariʿah as well as its relationship to other approved and disapproved customs. Abu Is haq al-Shatibi (d. 790/1388) divides this type into two categories. The first are fixed habits (ʿa¯ da¯ t), which he links to basic human instincts and natural propensities such as one’s need to eat, drink and communicate. Such fixed habits are implied in the various rulings of Shariʿah. The second are changing habits, which include a wide range of customs associated with particular cultural contexts (e.g. dress code), geographical conditions (e.g. age of maturity) or economic standards (e.g. type of currency).23 Clearly these various classifications of custom bear a significant degree of overlap but they demonstrate the extent to which custom has been embedded in the wide spectrum of both legal theory and substantive law. Most significantly these classifications are often invoked within the context of discussions addressing the various applications of custom in the legal tradition. Surveys of this subject often indicate several important applications of custom, which include: its use as a subsidiary legal source; its use in the articulation and construction of general legal rules; and its use as a type of circumstantial evidence.24 The perception of custom as a subsidiary legal source signifies one of the most famous roles that custom is assumed to play. This qualified designation of custom as a legal source is meant to rule out its use as an absolute or independent legal source, which would run counter to the role of Shariʿah as the supreme legal source, by means of its embodiment of the divine will. In support of this view of Shariʿah, Muslim jurists often make the argument that people develop both good and bad customs, as can be demonstrated throughout the course of human history. Within an Islamic normative system, Shariʿah should serve as the ultimate judge to determine agreeable and disagreeable customs. This role of custom is illustrated by numerous examples, such as istis․na¯ ʿ, in which custom is in essence supported by another source such as juristic consensus. Subsequently, some jurists also used the original justification of consensus, such as people’s need, in order to make similar applications of custom. In other words, people resort to certain practices due to particular needs, which over time turn into common practices or customs. This approach was particularly pursued in cases of contested consensus. This original justification may also include other general considerations such as necessity, removal of hardship or harm, or original permissibility. This function of custom as a subsidiary legal source is substantiated by numerous references in legal manuals and is also captured in legal maxims such as: ‘What is established by custom is in essence established by a sharʿı¯ evidence’.25 Another important application of custom is its role in the construction of particular rulings in light of general legal principles. Although most of the examples demonstrating this function of ʿUrf relate to financial transactions (e.g. the concept of the average), many other examples are also found in the various legal sections. An illustrative example from the penal system is determination of a suitable type of discretionary punishment for a particular legal infraction. Islamic criminal law specifies three types of punishments: stipulated crimes and 291

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their punishments (h․udu¯d); retaliation (qis․a¯․s); and discretionary punishments (taʿzı¯r). Unlike the first two types, discretionary punishments are not clearly delineated. They are left to be determined by experts in light of contemporary circumstances in a manner that serves the intended goals of the penal system (e.g. deterrence).26 Reference to custom as a type of circumstantial evidence represents another important usage of the concept. Such usage is meant to obviate the need to provide explicit articulation for certain presumed details. For example, the food presented by a host to a guest involves an implicit permission to eat it even without further explicit reference. This contextual evidence is based on common customs pertaining to etiquettes of hospitality. Similarly, this usage of custom is invoked to define customary standards governing various legal rules across the wide spectrum of the Islamic legal corpus. For example, in the area of transactions it is used within the context of the sale or lease of certain types of property, either separately or in combination with other associated items.27 The domain of legal implementation has been one of the important contexts illustrating the role of custom in the continued process of legal construction, as demonstrated in the fatwa and judgeship literature. To begin with, knowledge of and familiarity with custom has been one of the important qualifications of a competent mufti or judge. Moreover, it has been emphasized that custom-based rules ought to change once the underlying customs change.28 Within the heritage of the various legal schools, numerous examples demonstrate how later jurists modified certain legal rules to keep up with changing socio-historical circumstances.29 For example, one of the conditions for the validity of instituting a charitable endowment is that it must be done on a permanent basis (taʾbı¯d), which is usually taken to apply to immovable properties. Later Hanafi jurists, however, adopted the opinion attributed to Abu Yusuf and al-Shaybani allowing the endowment of movable items, including cash waq f, on the basis of common custom.30 Similarly, determination of the units of measurement for the six items subject to the prohibited usury (gold, silver, wheat, barley, dates and salt) is based on Prophetic reports indicating that while gold and silver are to be measured by weight, the other items are to be measured by volume. The majority of jurists held, on the basis of this Prophetic report, that these units of measurement should remain indefinitely as the standard units of measurement. Later Hanafi jurists, however, adopted the opinion of Abu Yusuf that such units of measurement should be determined on the basis of the common custom. Abu Yusuf argued that reference to weight and volume in the Prophetic report was based on the common custom in Medina at the time of the Prophet. In other words, the report merely cited these standard units and did not necessarily mean to fix them indefinitely. Accordingly, if these units were to change, due to changing circumstances, the rulings associated with them have to change as well.31 Eventually, in light of the above-mentioned classifications and applications, custom emerged as one of the five main legal maxims underlying and guiding the various Shariʿahbased rulings, often rendered as: custom is to be used as a basis for judgement (al-ʿa¯ da muh ․akkama). This principal maxim inspired a number of derivative maxims, which cover its main legal applications within the legal corpus of the various legal schools.32 The example of the Ottoman Majalla (Mecelle) and its codification of a Hanafi-based civil law demonstrates the gradual consolidation of custom within the legal maxims genre. The work opens with a list of 100 maxims governing the various rulings that it contains, out of which ten highlight the role of custom. In addition to the main maxim mentioned above, other relevant maxims include: widespread usage is authoritative and must be acknowledged; what is customarily impossible is impossible in reality; change of rules in different time periods cannot be denied; real or literal meaning of linguistic expressions can be superseded by customary indications; 292

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custom is acknowledged only if it is recurrent or prevalent; reliance should be on what is common, not what is rare; what is known by custom is equal to what is known by (contractual) stipulation; what is known among merchants is equal to explicit stipulations; and (implicit) determination by custom is equal to explicit determination.33 Turning to the question of the authority (h․ujjiyya) of custom, it can be explored in two main contexts. The first investigates the textual evidence invoked to support and justify its legitimacy (as discussed above with regard to associated terms under conceptualization of custom). The second investigates its relationship to other legal sources, especially in cases of conflict. Starting with textual sources, the jurists make a distinction between a concurrent or contemporaneous custom and a subsequent one. With regard to the former, the jurists are in agreement that specific textual indications cannot be trumped by custom. The only exception made for this scenario is the case of a text whose ruling is justified by custom, as is the case with the opinion of Abu Yusuf on the criteria for the determination of measurement units. They are also in agreement on the authority of linguistic conventions to specify general textual indications. They, however, disagreed on the authority of practical customs to specify general textual indications. While the majority of jurists argue that practical customs cannot specify the indication of general texts, the Hanafis and Malikis reportedly allowed this possibility, especially if the custom in question is a general rather than a specific one.34 On the other hand, if the custom in question is subsequent to the foundational text, the jurists are in agreement that the former cannot trump the latter in cases of conflict.35 Beyond the domain of textual sources, cases of conflict between custom and other types of legal sources are usually discussed under the general theme of juristic preference (istih ․sa¯ n), especially in light of the fact that custom is considered one of the important grounds on the basis of which an argument for juristic preference is made. On the basis of the various scattered discussions on custom in the pre-modern legal tradition of the various legal schools, modern scholars deduced several conditions for the recognition of a given custom. Most sources emphasize that a valid custom is one that is: recurrent (mut․․tarid) and widely circulated (gha¯ lib); not incompatible with a clear Shariʿah-based text; well established at the time of its invocation; and not contradicted by an explicit (contractual) statement. In addition to these four main conditions, some sources also indicate that a custom must be general or universal, not specific. 36 Disagreement on this condition is traced back to a debate among pre-modern jurists, particularly within the Hanafi and the Shafiʿi schools.37

4  Shariʿah and custom in the modern period The gradual and incremental development of the role of custom in the Islamic legal tradition, as outlined above, continued to evolve in the modern period despite the sudden eclipse of Shariʿah, which was precipitated by European colonial structures. By the end of the First World War, most Muslim-majority countries came under direct or indirect European colonial influence, which in most cases resulted in total overhaul of indigenous legal systems and introduction of European codes. For example, in the Middle East, the declining Ottoman Empire strove to meet increasing demands for reformation by introducing several reform edicts, known as tanzimat, but the mounting pressures proved more challenging and eventually caused the abolition of the caliphate and disintegration of the Ottoman Empire. In fact, some recent studies trace the beginning of legal modernization in this region not to European influences going back to the 18th and 19th centuries but rather to earlier Ottoman reforms, particularly during the 16th century. These early Ottoman reforms brought about 293

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gradual institutionalization of the law, which in turn translated into more control of the legal process by the state through the issuance of unified state laws or qawa¯ nı¯n.38 This is illustrated, for instance, by the first civil marriage law of 1521, which demanded that all marriage contracts be registered before a court judge.39 What is interesting to note here is that not only was custom able to survive these recurrent legal reform efforts but it remained one of the main sources for their implementation. Within these earlier Ottoman modernization efforts, communal custom had a complex relationship with the unified qawa¯ nı¯n as it continued to represent local social and cultural patterns against the empire’s attempt to enforce legal centralization and standardization.40 Starting with the colonial era, the tension between custom and qa¯ nu¯n gradually morphed into a tension between custom and Shariʿah itself as illustrated in the Egyptian Civil Code of 1949, which placed custom as its second main source preceded only by legislation and followed by the principles of Shariʿah and lastly by the principles of natural law and equity.41 Writing in 1953 on the status of civil codification in the Arab world, the leading Egyptian jurist ʿAbd al-Razzaq al-Sanhuri (author of the civil code in Egypt as well as several other Arab countries) distinguished two main models across the Arab world: countries that developed civil codes following the French example such as Egypt, Syria, Lebanon, Tunisia, Algeria and Morocco; and countries that developed civil codes on the basis of the Ottoman Majalla such as Iraq, Jordan and Palestine. Apart from these two main models, a few countries continued to follow the Islamic common (uncodified) law such as Saudi Arabia and Yemen.42 In the Indian colonial context, the tension between Shariʿah and custom was manifested in the creation of the Anglo-Muhammadan Law, which was applied in British colonial courts. It was based mainly on translated and codified Hanafi legal treatises but it also involved the subjective interpretation of British judges, which was informed largely by the English common legal tradition. Not only did this codification process isolate Islamic law from its historical and interpretive context, but it also amounted to further limitations on its ability to engage creatively with local custom, which was pejoratively classified as tribal and primitive.43 In Southeast Asia, Shariʿah was often compared and even confused with the local ʿa¯ da¯ t law. Eventually the Dutch colonial administration elevated the status of ʿa¯ da¯ t over that of Shariʿah and insisted that the former, upon its documentation, should be the main source of the legal system.44 These various modes of engagement between Shariʿah and custom during the colonial period constitute the historical context within which current legal systems emerged in the post-colonial era. In most cases, Shariʿah has been displaced and replaced by legal codes following modern European models. The main exception has been the area of personal status law, which continues to derive from the rules of Shariʿah. Apart from this interface between Shariʿah and positive legislation within the framework of national legal systems in Muslim-majority countries, another important area for the exploration of this interface has been the Muslim-minority context.45 This new context raises questions on the extent to which Islamic legal practice can be impacted by the social and cultural realities that Muslims living as minorities have to contend with. Although this is not a new phenomenon as can be attested by pre-modern juristic discourses on Muslim minorities,46 the modern situation poses several new questions pertaining to equal citizenship, limits of democratic rule and accommodation of religious demands under secular legal jurisdiction. Muslim presence in places such as Western Europe and North America has inspired an increasing amount of scholarly literature exploring the various aspects of this presence.47 The growing realization that Muslim immigrants are not going back to their countries of origin coincided with heightened awareness of the communal dimensions of this presence. Both factors were behind the establishment of specialized institutions to support the needs of the growing Muslim communities such as mosques, educational facilities and cemeteries. 294

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Until recently, Muslim minorities used to rely on external resources and institutions from Muslim majority countries for religious education and counselling before they took initiatives to develop home-grown institutions, which they felt would be more attentive to their particular needs and circumstances. Currently, several reputable juristic councils already exist in Europe and in North America, which tend to focus on the specific questions facing Muslims living as minorities in these places. Close examination of the deliberations that take place at these institutions on questions such as political participation or status of marriage upon conversion to Islam by only one spouse reveal the emergence of phrases such as European or American ʿurf.48 At the intellectual and scholarly level, the impact of these modern political, social and legal realities in Muslim majority countries are clearly reflected in the scholarly literature exploring the place of custom in the Islamic legal tradition. On the one hand, within the Muslim context, Muslim writers tended to emphasize the role of custom as an important feature that classical Muslim jurists employed in order to ensure the continued flexibility and functionality of Shariʿah. Consequently, custom has been a standard feature in works of legal theory (us․u¯l al-fiqh) within which it almost always occupies its place among the secondary sources of the law. In addition to works of legal theory, many other works single out custom as a subject of independent study either from a comparative interschool perspective or within the framework of a particular school. It is important to note, however, that the main approach that most of these works adopt is normative rather than historical, and is heavily dependent on classical juristic discourses. Moreover, in light of the growing influence of Western positive law, a large portion of the published literature examines custom from a Western historical or secular legal perspective. On the other hand, within the Western context, the issue of custom has received a great deal of attention in modern Islamic legal studies due to its close connection with important debates over questions such as the origins and nature of Islamic law.49 At the conclusion of this chapter it is important to reflect on the trajectory of the relationship between Shariʿah and custom in light of the overall impact of modernity and also in light of the significant social, cultural and scientific forces that it heralded. Although Islamic law has largely lost its privileged status as the main or sole legal system in Muslim majority countries since the legal reformation movement, which was undertaken under European colonial pressure, it continued to maintain its influence not only in its preserved enclave of personal status legislation but also through its ritual and moral dimensions. It was through these dimensions that Islamic law kept its vibrancy and vitality, which may also explain its invocation in major moral questions facing Muslims in the modern period. Some of the most pressing questions include, for example: inter-gender relations before the law; political freedoms, constitutional rights and human rights concerns; modern forms of commercial transactions; and modern applications of biomedical technology and bioethical dilemmas.50 These modern social, cultural and scientific forces have immensely transformed social reality. Their ability to generate new social patterns and customs pose important questions to the inherited Islamic legal structure. To what extent then can these new customs fit the classical classifications that the pre-modern jurists devised? To what extent do they satisfy the conditions that the jurists stipulated for the recognition of a valid custom? And ultimately, how do they fit within the current hybrid legal landscape? The fact that these modern transformations change not only social reality but also people’s consciousness of themselves and of the world requires that these questions should not be limited to the narrow legal domain but must rather be addressed at a deeper theological and philosophical level. 295

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Acknowledgement This publication was made possible by NPRP grant # NPRP8-1478-6-053 from the Qatar National Research Fund (a member of Qatar Foundation). The statements made herein are solely the responsibility of the author.

Notes 1 See, for example, Harold J. Berman and Samir Saliba, The Nature and Function of Law (New York: Foundation Press, 2009), 16–24. The authors compare the definition of law according to three main legal schools: the analytical-positivist school, the philosophical-moralist school, and ­the ­h istorical-traditionalist school. While the first school emphasizes the role of a sovereign political authority in the definition of law, the second emphasizes the role of morality as well as agreement with the dictates of natural law and the third school emphasizes the role of the social-historical context within which a legal system emerges. Instead of supporting any one of these perspectives, the authors suggest a more integrative approach that incorporates these three dimensions and concentrates on the function of the law as a social institution that aims primarily to preserve social order. 2 A. Arthur Schiller, ‘Custom in Classical Roman Law’, in Folk Law: Essays in the Theory and Practice of Lex Non Scripta, ed. Alison Dundes Renteln and Alan Dundes (Madison: University of Wisconsin Press, 1994), vol. 1, 35. Alan Watson notes that the two main elements in European law – in the post Roman period to the beginning of the 18th century – have been Roman law and custom because during this intermediary period European lawyers were mainly concerned with harmonizing these two elements; see Alan Watson, ‘An Approach to Customary Law’, ibid., 141. 3 For surveys of the role and place of custom in these legal systems, see ibid. 49–110. 4 David J. Bederman, Custom as a Source of Law (Cambridge: Cambridge University Press, 2010), 4. 5 Amanda Perreau-Saussine and James Bernard Murphy, ‘The Character of Customary Law: An Introduction’, in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, ed. Amanda Perreau-Saussine and James Bernard Murphy (Cambridge: Cambridge University Press, 2007), 1. 6 Ahmad Fahmi Abu Sunna, Al-ʿUrf wa-l-ʿAda fi Raʾy al-Fuqahaʾ (Cairo: Dar al-Bashaʾir, 2004), 31. 7 In 8:199 it is used as a synonym of maʿruf and in 77:1 it is used in the sense of maʿruf again, or as an adverb meaning following each other; see Al-Raghib al-Isfahani, Al-Mufradat fi Gharib al-Qurʾan (Beirut: Dar al-Maʿrifa, n.d.), 332. For more on the meaning of the term ʿUrf, its origin and derivatives, see Ibn Manzur, Lisan al-ʿArab, 18 vols (Beirut: Dar Sadir, 2008), vol. 10, 112. 8 Toshihiko Izutsu, Ethico Religious Concepts in the Qurʾa¯ n (Montreal: McGill–Queen’s University Press, 2002), 214. 9 For a discussion of these references in the foundational sources, see my Custom in Islamic Law and Legal Theory (New York: Palgrave, 2010), 45–58. 10 Mohammad Fadel, ‘Istih ․sa¯ n is Nine-tenths of the Law: The Puzzling Relationship of Us․u¯l to Furuʿ in the Ma¯ liki Madhhab’, in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 161. 11 ʿUbaydullah b. ʿUmar al-Dabbusi, Taqwim al-Adilla fi Usul al-Fiqh (Beirut: Dar al-Kutub al-­ ʿIlmiyya, 2001), 404–6; Muhammad Amin b. ʿAbidin, ‘Nashr al-ʿArf fi Binaʾ Baʿd al-Ahkam ʿala al-ʿUrf ‘ in Majmuʿat Rasaʾil Ibn ʿAbidin, 2 parts in 1 vol. (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, n.d.), 2: 114. 12 See Yasin Dutton, The Origins of Islamic Law: The Qurʾan, the Muwattaʾ and Madinan ʿAmal (New York: Routledge, Curzon, 2002), 32–52; see also Umar F. Abd-Allah, Ma¯ lik and Medina: Islamic Legal Reasoning in the Formative Period (Leiden: Brill, 2013). 13 ʿUmar b. ʿAbd al-Karim al-Jidi, al-ʿUrf wa-l-ʿAmal fi al-Madhhab al-Maliki wa Mafhumuhuma lada ʿUlamaʾ al-Maghrib (Rabat: Wazarat al-Awqaf wa-l-Shuʾun al-Islamiyya, 1982), 393–6. 14 ʿAbd al-Malik b. ʿAbdullah al-Juwayni, Al-Burhan fi Usul al-Fiqh, ed. ʿAbd al-ʿAzim al-Dib, 2 vols (Mansoura: Dar al-Wafaʾ, 1999), vol. 1, 116. 15 Al-Shatibi, Al-Muwafaqat, 2: 239. 16 See Al-Shatibi, al-Muwafaqat, 1: 158. 17 Al-Juwayni, Kitab al-Irshad ila Qawatiʿ al-Adilla fi Us․ul al-Iʿtiqad, ed. Muhammad Yusuf Musa and ʿAli ʿAbd al-Munʿim ʿAbd al-Hamid (Cairo: Maktabat al-Khanji, 2002), 345. 18 Al-Juwayni, al-Burhan, vol. 1, 378–88. 296

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19 Al-Juwayni, al-Burhan, vol. 1 431–8. From a different perspective, a similar argument has also been used within the modern Shiʿi context to support the argument that a lay practitioner must follow the opinion of a learned scholar in Shari’ah-related matters (taqlid). The rational argument used is the common custom that the ignorant often turns to the learned for advice. See L. Clarke, ‘Shiʿi Construction of Taqlid’, Journal of Islamic Studies 12(1) (2001): 43. 20 Ibrahim ibn ʿAli al-Shirazi, Al-Lumaʿ fi Usul al-Fiqh, ed. Muhyi al-Din Dib Mistu and Yusuf ʿAli Bidiwi (Beirut: Dar al-Kalim al-Tayyib, 1995), 40–2. 21 Ahmad ibn Idris al-Qarafi, Kitab al-Furuq, eds., Muhammad Ahmad Siraj and ʿAli Jumʿa Muhammad, 4 vols (Cairo: Dar al-Salam, 2001), vol. 1, 307. 22 Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿA¯mm, 2 vols (Damascus: Dar al-Qalam, 2012), vol. 2, 876–94. 23 Al-Shatibi, al-Muwafaqat, 2: 242–3. For more on Al-Shatibi’s treatment of custom, see my ‘ʿUrf and ʿAdah Within the Framework of al-Shatibi’s Legal Methodology’, UCLA Journal of Islamic and Near Eastern Law (2006–2007): 87–100. 24 Abu Sunna, Al-ʿUrf wa-l-ʿAda, 60–100. 25 ‘Al-tha¯ bit bi-l-ʿUrf tha¯ bit bi-dalil sharʿi’, ibid. Another legal maxim indicates that ‘forcing people to ignore their customs constitutes great hardship’ ( fi nazʿ al-na¯ s ʿan ʿa¯ da¯ tihim haraj ʿazim). 26 Abu Sunna, Al-ʿUrf wa-l-ʿAda, 84. For a discussion on the role of custom within the structure of the Islamic penal code, see Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2014); and Luqman Zakariyah, ‘Custom and Society in Islamic Criminal Law: A Critical Appraisal of the Maxim “al-ʿAda Muhakkamah” (Custom is Authoritative) and its Sisters in Islamic Legal Procedures’, Arab Law Quarterly 26 (2012): 75–97. For example, Rabb discusses the role of Medinan practice in the definition of punishable crimes according to the Maliki school (ibid., 160). Linguistic convention was also used to determine the hand to be amputated in the punishment for theft (ibid., 174). 27 See Al-ʿIzz b. ʿAbd al-Salam, Al-Qawaʿid al-Kubra, al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam, ed. Nazih Kamal Hammad and ʿUthman Jumʿa Dumayriyya (Damascus: Dar al-Qalam, 2000), 2: 225–37; Ibn ʿAbidin, ‘Nashr al-ʿArf ’, 136. 28 Al-Qarafi, Kitab al-Furuq, vol. 1, 314; Ibn al-Qayyim, Iʿlam al-Muwaqqiʿin ʿan Rabb al-ʿAlamin, 2 parts in 4 vols (Cairo: Dar al-Hadith), 2: 5. 29 Wael Hallaq, ‘From Fatwas to Furuʿ: Growth and Change in Islamic Substantive Law’, Islamic Law and Society 1 (1994): 50. 30 See Muhammad Amin Ibn ʿAbidin, Radd al-Muhtar ʿala al-Durr al-Mukhtar, Sharh Tanwir al-Absar, ed. ʿAdil Ahmad ʿAbd al-Mawjud and ʿAli Muhmmad Muʿawwad, 13 vols (Riyadh: Dar ʿAlam al-Kutub, 2003), vol. 6, 555–6; Abu Sunna, Al-ʿUrf wa-l-ʿAda, 242; Miriam Hoexter, ‘Qa¯ di, Mufti and Ruler: Their Roles in the Development of Islamic Law’, in Law Custom, and Statute in the Muslim World, ed. Ron Shaham (Leiden: Brill, 2007), 73. 31 Ibn ʿAbidin, ‘Nashr al-ʿArf ’, 118; Abu Sunna, Al-ʿUrf wa-l-ʿAda, 244. 32 See for example, Jalal al-Din ʿAbd al-Rahman al-Suyuti, Al-Ashbah wa-l-Nazaʾir, 2 parts in 1 vol., ed. Muhammad Muhammad Tamir and Hafiz ʿAshur Hafiz (Cairo: Dar al-Salam, 2004), 1: 221. Al-Suyuti discusses the meaning of this legal maxim and its applications in the Shafiʿi school. Zayn al-ʿAbidin b. Ibrahim b. Nujaym, Al-Ashbah wa-l-Nazaʾir, ed. ʿAdil Saʿd (Cairo: al-Maktaba al-­Tawfiqiyya, n.d.), 101. Similarly, Ibn Nujaym discusses the meaning of this legal maxim and its applications in the Hanafi school. While al-Suyuti lists five cardinal maxims (actions are judged according to the intentions of their agent, certainty cannot be removed by doubt, hardship triggers ease, harm cannot be removed by harm, and custom is to be used as a basis for judgement), Ibn Nujaym lists six (adding: no reward without intention). For more on custom as one of the main legal maxims, see Yaʿqub b. ʿAbd al-Wahhab al-Bahusayn, Qaʿidat al-ʿAda Muhakkama (Riyadh: Maktabat al-Rushd, 2004). 33 ʿAli Haydar, Durar al-Hukka¯ m, Sharh Majallat al-Ahka¯ m, trans. Fahmi al-Husayni, 4 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 2010), vol. 1, 40–7. 34 Ibn ʿAbidin, ‘Nashr al-ʿArf ’, 114–15; Al- Zarqa, Al-Madkhal, vol. 2, 908–18. 35 Al-Zarqa, Al-Madkhal, vol. 2, 919. 36 Al-Zarqa, Al-Madkhal, vol. 2, 897–902; Abu Sunna, Al-ʿUrf wa-l-ʿAda, 105–23; Al-Mawsuʿa al-­ Fiqhiyya, 2nd edn, 45 vols (Wazarat al-Awqaf wa-l-Shuʾun al-Islamiyya, 2009), vol. 30, 58–60. On the basis of his analysis of Ibn ʿAbidin’s treatise on custom, Ahmad Atif Ahmad concludes that Ibn ʿAbidin developed a tripartite doctrine of custom on the basis of which a valid social custom must be of: ‘(1) universal circulation, (2) residing nature, and (3) capacity to be reconciled with basic 297

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37 38 39 40 41 42 4 3

4 4 45 46 47 48

49

50

Qurʾanic and Sunnaic doctrines’. See Ahmad Atif Ahmad, Islam, Modernity, Violence, and Everyday Life (New York: Palgrave Macmillan, 2009), 102. Al-Suyuti, Al-Ashbah wa-l-Nazaʾir, 229; Ibn Nujaym, Al-Ashbah wa-l-Nazaʾir, 110; Ibn ʿAbidin, ‘Nashr al-ʿArf ’, 116; Haydar, Durar al-Hukkam, 41, 132. On the definition of qanun, see Khaled Abou El Fadl, ‘Qanun’, in Encyclopedia of Islam and the Muslim World, ed. Richard Martin (New York: Macmillan Reference USA, 2004), vol. 2, 560–1. Reem Meshal, Shari’ah and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo (Cairo: The American University in Cairo Press, 2014), 155. Meshal, Shari’ah and the Making of the Modern Egyptian, 214. ʿAbd al-Razzaq al-Sanhuri, ‘Al-Qanun al-Madani al-ʿArabi’, in Islamiyyat al-Sanhuri Basha, 2 vols, ed. Muhammad ʿImarah (Mansoura, Egypt: Dar al-Wafaʾ, 2006), vol. 2, 541. Ibid., 540. Wael Hallaq, Shariʿa, Theory, Practice, Transformation (Cambridge: Cambridge University Press, 2009), 376; Mustafa Baig and Robert Gleave, ‘Customary Law’, in Encyclopedia of Islam and the Muslim World, ed. Richard Martin (New York: Macmillan Reference USA, 2016), vol. 2, 647–9. Hallaq, Shariʿa, 394. Said Fares Hassan, Fiqh al-Aqalliyat: History, Development and Progress (New York: Palgrave Macmillan, 2013). Khaled Abou El Fadl, ‘Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries’, Islamic Law and Society 1(2) (1994): 141–87. See, for example, Julie Macfarlane (ed.), Islamic Divorce in North America: A Shariʿa Path in a Secular Society (Oxford: Oxford University Press, 2012) and Rubya Mehdi and Jorgen S. Nielsen (eds), Embedding Mahr in the European Legal System (Copenhagen: DJORF Pub., 2011). Alexandre Caeiro, ‘Transnational Ulama, European Fatwas, and Islamic Authority: A Case Study of the European Council for Fatwa and Research’, in Producing Islamic Knowledge, Transmission and Dissemination in Western Europe, ed. Martin Van Bruinessen and Stefano Allievi (New York: Routledge, 2011), 135. For a representative list of these works, see my Custom in Islamic Law, 17–42 and ‘Custom in the Islamic Legal Tradition’, in The Oxford Handbook of Islamic Law, ed. Anver Emon and Rumee Ahmed, (Oxford: Oxford university Press, 2018), 231–48. http://www.oxfordhandbooks.com/ view/10.1093/oxfordhb/9780199679010.001.0001/oxfordhb-9780199679010-e-35 (accessed 24 July 2018). For example, on gender issues, see Ahmad, Islam, Modernity, Violence, and Everyday Life, 106 (raising a question about the possibility of arguing for equal privileges in the Islamic law of divorce in light of Ibn ʿAbidin’s treatment of custom). For constitutional and human rights concerns, see Khaled Abou El Fadl, ‘Cultivating Human Rights: Islamic Law and the Humanist Imperative’, in Law and Tradition in Classical Islamic Thought, ed. Michael Cook et al. (New York: Palgrave Macmillan, 2012), 170 (observing that ‘before becoming effective laws, human rights are embedded in individual consciences and collective wills expressed as cultural practices’). See also, in general, Abdulaziz Sachedina, Islamic and the Challenge of Human Rights (Oxford: Oxford University Press, 2009). On economic issues, see Alexandre Caeiro, ‘The Social Construction of Shariʿa: Bank Interest, Home Purchase, and Islamic Norms in the West’, Die Welt des Islams 44(3) (2004): 351–75 (analysing a fatwa by the European Council for Fatwa and Research on the topic of home mortgages). On modern bioethical issues, see Abdulaziz Sachedina, Islamic Biomedical Ethics (Oxford: Oxford University Press, 2009).

Select bibliography and further reading Abd-Allah, Umar F. Ma¯ lik and Medina: Islamic Legal Reasoning in the Formative Period (Leiden: Brill, 2013). Abou El Fadl, Khaled. ‘Qanun’. In Encyclopedia of Islam and the Muslim World, ed. Richard Martin, 1st edn, 2 vols (New York: Macmillan Reference USA, 2004), vol. 2, 560–1. Abou El Fadl, Khaled. ‘Cultivating Human Rights: Islamic Law and the Humanist Imperative’. In Law and Tradition in Classical Islamic Thought, ed. Michael Cook, Najam Haider, Intisar Rabb and Asma Saayeed (New York: Palgrave Macmillan, 2012).

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Abu Sunna, Ahmad Fahmí. Al-ʿUrf wa-l-ʿAda fí Raʾy al-Fuqahaʾ (Cairo: Dar al-Basaʾir, 2004). Ahmad, Ahmad Atif. Islam, Modernity, Violence, and Everyday Life (New York: Palgrave Macmillan, 2009). Bahusayn, Yaʿqub b. ʿAbd al-Wahhab al-. Qaʿidat al-ʿAda Muhakkama (Riyadh: Maktabat al-Rushd, 2004). Baig, Mustafa and Robert Gleave. ‘Customary Law’. In Encyclopedia of Islam and the Muslim World, ed. Richard Martin, 2nd edn, 2 vols (New York: Macmillan Reference USA, 2016), vol. 2, 647–9. Bederman, David J. Custom as a Source of Law (Cambridge: Cambridge University Press, 2010). Berman, Harold J. and Samir Saliba. The Nature and Function of Law (New York: Foundation Press, 2009). Caeiro, Alexandre. ‘The Social Construction of Shari’a: Bank Interest, Home Purchase, and Islamic Norms in the West’. Die Welt des Islams 44(3) (2004): 351–75. Dabbusi, ʿUbaydullah b. ʿUmar al-. Taqwím al-Adillah fí Usul al-Fiqh (Beirut: Dar al-Kutub al-ʿIlmiyya, 2001). Dutton, Yasin. The Origins of Islamic Law: The Qurʾan, the Muwattaʾ and Madinan ʿAmal (New York: Routledge Curzon, 2002). Fadel, Mohammad. ‘“Istih․ sa¯ n is nine-tenth of the Law”: The Puzzling Relationship of Us․u¯l to Furu¯’ in the Ma¯ likı¯ Madhhab’. In Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 161–76. Hasanayn, Hasanayn Mahmud. ‘Maf hum al-ʿUrf fi al-Shariʿa al-Islamiyya’. Majallat al-Shariʿah wa-lQanun 3 (1989): 97–146. Hassan, Said Fares. Fiqh al-Aqalliyyat: History, Development and Progress (New York: Palgrave M ­ acmillan, 2013). Haydar, ʿAli. Durar al-Hukkam, Sharh Majallat al-Ahkam, trans. Fahmí al-Husayni, 4 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 2010). Ibn ʿAbidin, Muhammad Amin. Radd al-Muhtar ʿala al-Durr al-Mukhtar, Sharh Tanwir al-Absar, ed. ʿAdil Ahmad ʿAbd al-Mawjud and ʿAli Muhmmad Muʿawwad, 13 vols. (Riyadh: Dar ʿAlam al-­Kutub, 2003). Ibn ʿAbidin, Muhammad Amin. ‘Nashr al-ʿArf fi Binaʾ Baʾd al-Ahkam ʿala al-ʿUrf ’. In Majmuʿat Rasaʾil Ibn ʿAbidin, 2 parts in 1 vol. (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, n.d.), 2: 112–45. Ibn al-Qayyim. Iʿlam al-Muwaqqiʿin ʿan Rabb al-ʿAlamin, 4 parts in 2 vols (Beirut: Dar al-Kutub al-­ ʿImiyya, 1991). Izutsu, Toshihiko. Ethico Religious Concepts in the Qur’a¯ n (Montreal: McGill–Queen’s University Press, 2002). Jidi, ʿUmar b. ʿAbd al-Karim al-. Al-ʿUrf wa-l-ʿAmal fí al-Madhhab al-Maliki wa-Mafhumuhuma lada ʿUlama al-Maghrib (Rabat: Wizarat al-Awqaf wa-l-Shuʾun al-Islamiyya, 1982). Juwayni, ʿAbd al-Malik b. ʿAbdullah al-. Al-Burhan fi Usul al-Fiqh, ed. ʿAbd al-ʿAzim al-Dib, 2 vols (Mansoura, Egypt: Dar al-Wafaʾ, 1999). Juwayni, ʿAbd al-Malik b. ʿAbdullah al-. Kitab al-Irshad ila Qawatiʿ al-Adilla fi Usul al-Iʿtiqad, ed. Muhammad Yusuf Musa and ʿAli ʿAbd al-Munʿim ʿAbd al-Hamid (Cairo: Maktabat al-Khanji, 2002). Macfarlane, Julie (ed.). Islamic Divorce in North America: A Shariʿa Path in a Secular Society (Oxford: ­Oxford University Press, 2012). Mehdi, Rubya and Jorgen S. Nielsen (eds). Embedding Mahr in the European Legal System (Copenhagen: DJORF Pub., 2011). Meshal, Reem. Shari’ah and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo (Cairo: The American University in Cairo Press, 2014). Perreau-Saussine, Amanda and James Bernard Murphy. ‘The Character of Customary Law: An Introduction’. In The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, ed. Amanda Perreau-Saussine and James Bernard Murphy (Cambridge: Cambridge University Press, 2007), 1–10. Sanhuri, ʿAbd al-Razzaq al-. ‘Al-Qanun al-Madani al-ʿArabi’. In Islamiyyat al-Sanhuri Basha, ed. Muhammad ʿImara, 2 vols (Mansoura, Egypt: Dar al-Wafaʾ, 2006), vol. 2, 537–58. (Originally published by the Arab League in 1953 and republished in Majallat al-Qadaʾ al-ʿIraqiyya in 1962.) Schiller, A. Arthur. ‘Custom in Classical Roman Law’. In Folk Law: Essays in the Theory and Practice of Lex Non Scripta, ed. Alison Dundes Renteln and Alan Dundes (Madison: University of Wisconsin Press, 1994), vol. 1, 33–47.

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Shabana, Ayman. ‘ʿUrf and ʿAdah Within the Framework of al-Shatibi’s Legal Methodology’. UCLA Journal of Islamic and Near Eastern Law 6 (2006–2007): 87–100. Shabana, Ayman. Custom in Islamic Law and Legal Theory (New York: Palgrave, 2010). Shabana, Ayman. ‘Custom in the Islamic Legal Tradition’. In The Oxford Handbook of Islamic Law, ed. Anver Emon and Rumee Ahmed, (Oxford: Oxford university Press, 2018), 231–48. http:// www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199679010.001.0001/oxfordhb9780199679010-e-35 (accessed 24 July 2018). Shirazi, Ibrahim b. ʿAli. Al-Lumaʿ fi Usul al-Fiqh, ed. Muhyi al-Din Dib Mistu and Yusuf Ali Bidiwi (Beirut: Dar al-Kalim al-Tayyib, 1995). Watson, Alan. ‘An Approach to Customary Law’. In Folk Law: Essays in the Theory and Practice of Lex Non Scripta, ed. Alison Dundes Renteln and Alan Dundes (Madison: University of Wisconsin Press, 1994), vol. 1, 141–57. Zakariyah, Luqman. ‘Custom and Society in Islamic Criminal Law: A Critical Appraisal of the Maxim “al-‘Adah Muh․akkamah” (Custom is Authoritative) and its Sisters in Islamic Legal Procedures’. Arab Law Quarterly 26 (2012): 75–97.

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17 Jihad, sovereignty and jurisdiction The issue of the abode of Islam Ahmed Al-Dawoody

Introduction Jihad is in the eye of the beholder! To a great extent this phrase reflects the current state of the attempts to answer the question of what is jihad as understood from the Islamic normative sources and/or as practised by Muslims throughout Islamic history. As an Islamic doctrine, jihad developed in the earliest Islamic formative periods with the aim of fulfilling certain objectives in specific contexts or, put differently, in response to certain contexts. Since jihad (literally struggle, exerting effort) must be fı¯ sabı¯ l Allah (in the path of God), namely to struggle to achieve an objective that is desirable to God, it has theological, legal and ethical aspects, not necessarily separated, but even generally intertwined. Achieving such objectives could be done spiritually/peacefully (al-jiha¯ d al-akbar, the greater jihad) or violently (al-jiha¯ d al-as․ghar, the lesser jihad), and individually or collectively. In the Qurʾan, derivatives of jihad occur 41 times both during the Meccan and Medinan periods and only 12 occurrences refer to fighting contexts.1 In the Meccan period, Muslims lived as a persecuted religious minority who were unable to practise their religion freely and were not permitted to use force as a means of self-defence. But after the Muslims’ hijra (flight) to Medina, jihad in the sense of an armed struggle was permitted to the persecuted Muslim community against their enemies and within a little over a decade of Prophet Muhammad’s life in Medina, the use of jihad as a defensive war helped the survival of the nascent Islamic state established by the Prophet in Medina. In a word, in this formative period, the Prophet’s lifetime, the incidents of jihad fı¯ sabı¯ l Allah in the sense of an armed struggle were used merely as a defensive war. However, this chapter argues that a core factor that lies in the heart of the Sunni classical and some modern Muslim jurists’ discussions of the doctrine of jihad during both the second formative period (the first four centuries of the Islamic era) and the post-colonial era is the implementation and application of Islamic law. Therefore, the overarching factor in the twofold or tripartite divisions of the world devised by the classical Muslim jurists and one of the main duties of the establishment of the institution of the caliphate is the application of Islamic law. This factor gives new parameters to the study of the Islamic tradition of war and indicates the significance of the contemporary calls for the establishment of the Islamic state/caliphate.

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1  Justification for jihad The history of the interaction, and more specifically the fighting incidents that took place, between the Muslims and their enemies during Prophet Muhammad’s lifetime and the Qurʾanic texts addressing this subject form the basis upon which Muslims derive the Islamic justifications and regulations for going to war. Classical Islamic jurists considerably succeeded in developing the Islamic regulations for going to war, while paying little attention to the question of the justifications for going to war because a state of hostility was the norm in their pattern of international relations unless a peace treaty was bilaterally concluded. Moreover, early Islamic history shows that the advent of Islam created a wave of hostility and aggression against the believers in Islam because it endangered the religio-socio-political power of the Arab idolaters. The Prophet’s following words indicating rejection of the Meccans’ temptations to give up the call for the religion of Islam is quite revealing: ‘By God, if they [the Meccan idolaters] put the sun in my right hand and the moon in my left so that I abandon this matter [the religion of Islam], I will not until God establishes it or I perish’ (emphasis added). Muslims were unable to practise their religion freely during the Meccan period and, by way of example, they were unable for the first 13 years of the advent of Islam to build a mosque in Islam’s birthplace, Mecca. Only after the flight to Medina did Muslims manage to build a mosque and establish their religion. The flight to Medina was an attempt to survive persecution and, no less importantly, practise/establish the religion of Islam. The first permission to engage in fighting was given to the Muslims following their flight from Mecca to Medina in the following Qurʾanic text: Permission to [engage in fighting] is given to those against whom war is waged because they have been wronged; verily God is able to give them victory. Those who have been expelled from their homes unjustly and only for saying: God is our Lord; had not God permitted people to defend themselves against [the aggression of ] others, monasteries, churches, synagogues and mosques, wherein the name of God is oft-mentioned, would be pulled down; certainly God will support those who support Him; indeed God is AllStrong, All-Mighty.2 This text clearly indicates that jihad is justified in cases of religious persecution, not only the physical attacks directed against the individual followers of the above religions, but also against the establishment of these religions since the above houses of worship are mentioned as symbols of the establishment of the respective religions they belong to. Other text 3 asks the Muslims to go to war to rescue the oppressed weak Muslim minority who were also subjected to oppression because of their religious beliefs. Furthermore, the controversially interpreted concept of fitna is given as a justification for going to war in many Qurʾanic texts.4 Fitna is interpreted by some exegetes and jurists as torture and religious persecution of Muslims to force them to apostatize from Islam, while it is interpreted by some as unbelief in God. These two interpretations diametrically change jihad from a defensive just war to prevent religious persecution, according to the first interpretation, to an offensive holy war to force unbelievers in God to accept Islam, according to the second. But the exegetical theory of abrogation which means that a Qurʾanic ruling abrogates its previous ruling(s) caused a trend among Muslim jurists to unwarrantedly adopt a rather purely methodological approach to the determination of the Qurʾanic justifications for war. Utilizing the principle of abrogation, this trend argues that since the Qurʾanic texts 9:5 and 9:29 are the last revelations on the subject of the justifications for going to war in Islam, this trend advocates that the Qurʾanic text 9:5 indicates that polytheists are to be fought until they become Muslims, while the Qurʾanic text 9:29 indicates that the people of the book are to be 302

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fought if they reject Islam and the payment of jizya (tax levied to exempt eligible males from conscription). This sharp mathematical theory ignores the totality of the Qurʾanic message and contradicts the practise of the Prophet and the succeeding Muslims generations. But the majority maintains, as expressed specifically in the words of modern Muslim scholars, that jihad is a defensive war to defend: 1) the occupation of the Muslim territories; 2) fitna (persecution) of Muslims;5 and 3) the prevention of preaching Islam. Preventing the proselytization of Islam as a justification for going to war is quite revealing because it indicates the unique and central place of establishing and practising the religion of Islam in the Islamic just war tradition. It is worth adding here that classical Muslim jurists divided jihad into two categories: jiha¯ d al-dafʿ (defensive war) and jiha¯ d al-t․alab (military campaigns to convey the message of Islam in non-Muslim territories). Apart from jiha¯ d al-dafʿ, the interesting question here is how Muslim scholars justified the jiha¯ d al-t․alab and will it be permitted for Muslims to resort to this type of jihad in the present time. Since Islam is a message for all humanity and Muslims are required to preach it to the rest of the world, the early Islamic state resorted to jiha¯ d al․talab or what is described in Islamic history as the futuh ․a¯ t (militarized missionary campaigns) because preaching Islam was not permitted in the non-Muslim territories at that time. It is worth adding here that the decision to initiate a jiha¯ d al-t․alab is left to the caliph and must be conducted under his command. But at present, anyone can preach Islam in or to any part of the world even without having to physically be present in such territories. In addition to the fact that the modern world recognizes the right of freedom of religion and freedom of expression, Muslims can preach Islam via the internet or other media of mass communication. According to Islamic law, any act taken under duress is null and void and hence accepting Islam under duress is not valid6 and, by the same token, apostatizing from Islam under duress is pardonable.7 Hence, in the jiha¯ d al-t․alab, Muslims are obliged to start with introducing the religion of Islam to the non-Muslim territories and if they reject it, then they are to pay the jizya to the Islamic state in return for the protection it guaranteed to such territories. In fact, the acceptance of the payment of jizya – which is a pre-Islamic tradition – indicates the absence of hostility between the concluding members and that they have the right of the practice of their religion. Had the motive of jihad been to force non-Muslims to accept Islam, jizya should not have been accepted from them. Although this refutes the claim that jihad is a tool to force non-Muslims to accept Islam, this still leaves the question of the nature of the jiha¯ d al-t․alab unsettled. That is because if the above discussion refutes the claim of the universalization of the religion of Islam, it may indicate, first, that the Islamic state aimed at the universalization of Islamic rule or, second, merely the collection of the jizya tax and other economic advantages or, third, as argued by many modern Muslim scholars whether labelled as reformers, apologetics or otherwise, at removing the oppressive Persian and Roman empires who were ruling over most of the world at the time of the Islamic futuh․a¯ t. It should be added here that this chapter focuses on the Islamic normative sources and not on the history of the Islamic state practices. However, it is very likely that many Muslim rulers waged socalled jihad in non-Muslim territories because of their ambition to annex more territories to their rule. This is especially the case in light of the fact that many of the internecine wars that took place among Muslims were motivated by the urge to rule. It is interesting to find that the above three motives for jihad in addition to the refuted claim for the universalization of Islam by force find their proponents both from within and from outside the Islamic belief. But a quick look at the Islamic jus in bello rules (regulations on the use of force) gives some indications into, and invalidate some of the above, justifications for jihad. Fortunately, classical Muslim jurists developed detailed and comprehensive rules that regulate the recourse to war both in international armed conflicts (war against 303

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non-Muslims) and non-international armed conflicts (inter-Muslim fighting). Their sources are mainly scriptural and regulated their primitive war situations. However, their deliberations, agreements, disagreements, and rulings understandably reflect a genuine concern for humanizing the military conflicts by not jeopardizing the lives of non-combatants and not causing unnecessary damage to enemy property while at the same time making sure that the Islamic restraints on the use of force will not prevent Muslims from winning the war. First and foremost, a full-blown non-combatant immunity developed by the classical Muslim jurists indicates that fighting is not justified against non-Muslims because of their unbelief in Islam, but because of their belligerency. The non-combatant immunity extended to the enemy clergy – provided that they do not engage in acts of hostilities – is just a case in point. Furthermore, the humane treatment provided for the non-Muslim prisoners of war and the lack of any rules that would put any kind of pressure on them to convert to Islam also disprove the claim for the universalization of Islam by force. The Islamic restraints on the use of force also includes prohibitions on the use of indiscriminate weapons and tactics such as shooting mangonels at, or flooding, enemy fortifications, the use of poison-tipped arrows, poisoning enemy water, attacking the enemy by night, or shooting at the human shields. In all of these cases, there are different interpretations of the texts, deliberations, and negotiations among classical Muslim jurists. Some jurists permit the use of such indiscriminate weapons and tactics either because their readings of the texts lead to this permission or because their priority is winning the war and any casualty would be justified by the military necessity or as a collateral damage. Other jurists maintain the prohibition of such weapons and tactics because of their strict adherence to the texts and/or the general prohibition on jeopardizing the lives of non-combatants. These approaches led to a wide range of conflicting rulings on the restraints on the use of force and as a consequence many contemporary terrorist groups and individuals cherry-picked certain classical rulings to justify their terrorist acts against non-Muslim as well as Muslim victims. In addition to the sanctity of the lives of enemy non-combatants, the Islamic jus in bello rules indicate the sanctity of enemy property, which must be protected during hostilities unless in case of dire military necessity. Understandably, classical Muslim jurists also differed here in identifying what constitutes dire military necessity in various war situations, but at least a general sense of protecting enemy property existed in the Islamic tradition of war. For example, the prohibition on the use of indiscriminate weapons such as those mentioned above is also based on the concern of not damaging enemy property. The instructions of the First Caliph Abu Bakr (r. 632–634) to his army leader includes: ‘do not cut down fruit-­ bearing trees; do not destroy buildings; do not slaughter a sheep or a camel except for food; do not burn or drown palm trees’.8 It is interesting to add here that al-Shafiʿi (d. 204/820) differentiated between lifeless and animate creatures possessed by the enemy because the latter suffers the pains and thus any suffering that is not dictated by the military necessity will be a sort of torture for which a person will be questionable before God. However, animals used by the enemy in combat, such as horses, can be killed during the fighting. Otherwise, unnecessary killings of animals or wanton destruction of enemy property falls under the heinous crime described in the Qurʾan as causing destruction in the earth.9 Furthermore, and pragmatically speaking, the fact that defeated enemy property in pre-modern Islamic era used to be spoils of war should have alleviated the degree of damage to enemy property. To show the sanctity of enemy property, it is suffice to mention here by way of example that classical Islamic law books discussed whether it is permissible in case they are short of food that the Muslim soldiers can eat and give fodder to the animals of the Muslims’ army from the property of the enemy.10 Although the permissibility is given on the basis of 304

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military necessity, the Islamic jus in bello rules prove the inviolability of enemy property. In short, the above discussion reveals that these structured rules, which originally developed as self-imposed on the Muslims, cannot simply be motivated by the urge for economic purposes and, without a doubt, could have the greatest impact in humanizing the use of force. But the hypothesis of the universalization of rule of the Islamic state as a justification for jihad will be examined below.

2  Divisions of the world With the incredible widespread rule of the Islamic state over territories that expanded in three continents – Asia, Africa, and Europe – within less than a century of the advent of Islam, second/eighth century Muslim jurists devised an interesting division of their world. These divisions give indications into this classical Islamic paradigm of international relations and reinforce the thesis of this chapter regarding the justifications for jihad. The interesting question here, which is directly linked to the main thesis of this chapter, is, what do these divisions demarcate? Do they demarcate a religious or geographical division? At the outset, it should be pointed out that since immediately after the Prophet’s demise until its abolition in 1924, Muslims lived under the institution of the caliphate which, at least theoretically, unified its citizens apart from the rest of their world. But to answer these questions, the definitions of these divisions as adopted by the Muslim jurists must be examined. In fact, there are some jurists that divided their world into three divisions, namely, da¯ r al-Isla¯ m, da¯ r al-h ․arb, and da¯ r al-s․ulh ․, while others were content with only the first two. Da¯ r al-Isla¯ m (house of Islam), also called da¯ r al-sala¯ m (house of peace) or da¯ r al-ʿadl (house of justice), is defined in three different ways by classical Muslim jurists. First, according to the majority of Muslim jurists representing the four schools of Sunni Islamic law, which includes Shaybani (d. 189/805) and Abu Yusuf (d. 182/798) from the Hanafi, Maliki, Shafiʿi, and Hanbali schools, da¯ r al-Isla¯ m is defined as the territory where Islamic law is applied, ․zuhu¯r al-Isla¯ m or ․zuhu¯r ah․ka¯ m al-Isla¯ m (literally emergence of Islam or emergence of Islamic law). These jurists differed tremendously, however, on the limits of the application of Islamic law. While some maintained that it is limited to the territory where Islam is freely proclaimed and practised, others were only content with the implementation of even a single Islamic ritual in a territory to be classed as da¯ r al-Isla¯ m. It appears that, for those who were content with the partial application of Islamic law, the lack of persecution for the practice of Islam was suffice for a territory to be considered as a part of the da¯ r al-Isla¯ m. That is because one of the examples classical Muslim jurists gave here is that if Muslims are able to perform prayers freely, then a territory is considered a da¯ r al-Isla¯ m. However, in the post-colonial era and following the westernization of the Islamic legal systems in most of the Muslim world, some radical Islamist groups argued that the current Muslim states are not a da¯ r al-Isla¯ m because they do apply wholly Islamic law, quoting the Qurʾanic text 5:44: ‘And those who do not rule by what God has revealed, such are the unbelievers’. Hence, Muhammad ʿAbd al-Salam Faraj (d. 1401/1981), executed in 1982 for his role in the assassination of President Sadat of Egypt, claimed that what he called the neglected duty, i.e., jihad, must be waged against what he called the ‘near enemy’, i.e., the Muslim rulers until they rule by Islamic law. This new development to the concept of jihad from a war against non-Muslims to an internal war to enforce the application of Islamic law reinforces the thesis that the ․zuhu¯r al-Isla¯ m (the establishment of the religion of Islam and its laws) is a core justification of jihad regardless of the diverse understandings of what constitutes the acceptable limits of the ․zuhu¯r al-Isla¯ m. It should be mentioned here that a da¯ r al-Isla¯ m is not necessarily exclusively inhabited by Muslims since 305

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dhimmis (non-Muslim permanent citizens of the Islamic state) have been always a part of the da¯ r al-Isla¯ m and, according to classical Islamic law, they have the right to apply certain aspects of their respective legal systems. Second, according to a minority group, including Shawkani (d. 1255/1834), a territory is a da¯ r al-Isla¯ m if it is ruled by Muslims. Obviously what lies behind this stipulation is that since authority is in the hands of the Muslims, Islamic law is applied and Muslims can reside and apply their religion freely. However, will a territory be called a da¯ r al-Isla¯ m if it is ruled by Muslims but Islam cannot be practised and its Muslim population are persecuted because of their religion? The answer would be in the negative. Similarly, the more interesting question here is that, if a territory that is ruled by non-Muslims, but Muslims enjoy the freedom to practise their religion, would this territory be called a da¯ r al-Isla¯ m? The rational answer, as can also be deduced from the third position below, is that such a territory would be a da¯ r al-Isla¯ m, though sovereignty is in the hands of non-Muslims. Third, according to Abu Hanifa (d. 150/767), da¯ r al-Isla¯ m is a territory in which Muslims and dhimmis are secure and can practise their religion with no persecution.11 In a much clearer way than the preceding two positions, Abu Hanifa’s words indicate that what determines whether a territory is a da¯ r al-Isla¯ m or not is the lack of enmity against both Muslims and dhimmis, permanent non-Muslim citizens of the Islamic state. If the element of security exists in any territory, then it deserves to be categorized also as a da¯ r al-sala¯ m (house of peace) or da¯ r al-ʿadl (house of justice). In this context, it is worth adding here that classical Muslim jurists stated that if Muslims are unable to perform their religion without persecution, then following the Prophet’s and the Companions’ practice, hijra (flight) to the da¯ r al-Isla¯ m is obligatory. Sheikh al-Azhar Mahmud Shaltut (d. 1383/1963) argues that the Qurʾanic command 5:79 for Muslims to flee in case of persecution because of their religion from any territories – whether ruled by Muslims or non-Muslims – still applies in the contemporary world.12 Although these three positions are expressed in different ways, they basically reinforce the same idea: da¯ r al-Isla¯ m is not a territory that is identified by geographical boundaries or the religious affiliation of the rulers or inhabitants. It is a theoretical division that emerged in a period where hostility and the lack of religious freedom signified the pattern of international relation at the time. So, in addition to the intrinsic right of self-defense against aggression against one’s territories, by this division of the world, classical Muslim jurists were identifying the state or the home that is peaceful to the religion of Islam. Additionally, as can be seen from the discussion below, this division is not about demarcating territories that Muslims are to annex to the Islamic state or non-Muslims that are to be fought until they are converted by force to Islam, but it is a division that has legal ramifications regarding, for example, the issue of the jurisdiction of Islamic law. Based on the above definitions, or parameters, of what constitutes a da¯r al-Isla¯m, a da¯r al-h ․arb (house of war), also called da¯r al-kufr (house of unbelief ) or da¯r al-jawr (house of injustice), is the territories where the above parameters are lacking. But this does not necessarily mean that the Islamic state has to go to war against such territories partly because, even with the lack of some of these parameters, a territory can still be categorized as a da¯r al-s․ulh ․ (house of peace) if an armistice or a peace agreement is concluded. It is worth recalling here that this division was rather a description of the state of reality at that time when a state of hostility was the norm in international relations. It goes without saying that if a country invades the Islamic territories, it becomes a da¯r al-h ․arb, according to the majority of jurists, and in this case jihad becomes an obligation on every capable Muslim. But in any case, it is of paramount importance to note here that the civilian inhabitants of a da¯r al-h ․arb cannot be targeted during the hostilities. This is because the muh ․a¯ribu¯n (enemy combatants) only can be a legitimate target during military operations 306

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within the Islamic restraints on the use of force briefly touched upon above. Furthermore, if enemy combatants ask in any form, whether verbally or via gesture, for ama¯n (literally safety and protection, while as a legal term it means quarter and safe conduct), they must be granted it. However, this distinction between the civilian population of the da¯r al-h ․arb and the muh ․a¯ribu¯n has been grossly overlooked by terrorist groups who justified their terrorist attacks in non-­ Muslim countries against innocent civilians by wrongly claiming that the lives and property of the inhabitants of the da¯r al-h ․arb are not inviolable. Furthermore, as pointed out above, claiming that the current Islamic states that do not solely apply Islamic law are da¯r al-h ․arb/da¯r al-kufr, hence they claim it is permitted to commit terrorist attacks against government targets to enforce the application of Islamic law. Also non-violent Islamist politicians and thinkers claim that their primary objective is enforcing the application of the Shariʿah in their countries. As for the third division, da¯ r al-s․ulh․ (house of peace), also called da¯ r al-ʿahd (house of covenant) or da¯ r al-muwa¯ daʿa (house of reconciliation), refers to the sovereign of semiautonomous territories with which the Islamic state concluded a peace agreement, an armistice, or a pact of non-aggression. The Islamic state has no control over such territories and therefore does not enforce the implementation and application of Islamic law,13 but such agreements indicate the lack of hostility towards its Muslim community. Notwithstanding the details of such peace arrangements, the mere fact that Islamic law legitimized, and the Islamic state practised, peace agreements with non-Muslim territories prove that the aim of jihad is not the universalization of Islam by force since the inhabitants of the da¯ r al-s․ulh ․ maintain their religions. It also shows that the claim made by Majid Khadduri (d. 1428/2007) that one of the aims of jihad is ‘the establishment of an imperial world state’,14 or what is described as the universalization of Islamic rule, is inaccurate, as argued by Wahbah al-Zuhayli, since what Islam aims at is protecting the enforcement of Islamic Shariʿah.15 Furthermore, it is only a minority among classical Muslim jurists including al-Shafiʿi that accepted this third division, because according to the majority of the jurists, as shown above, irrespective of the limits of its application or practice, if Islam can be freely practised in any territory it becomes a part of the da¯ r al-Isla¯ m and, according to Abu Hanifa, the mere fact that Muslims and dhimmis are secure in a certain territory makes it a da¯ r al-Isla¯ m. In the light of this brief discussion of the figurative territorial divisions of the classical Muslim jurists’ world, it becomes clear that what determines the above three categorizations of the world is the freedom to practise Islam and its laws. As a corollary of that, in addition to aggression and occupation of the Islamic territories, a da¯ r al-h․arb is any territory in which the practice or the application of Islam is persecuted/prohibited. This explains the agreement among Muslim scholars on preventing the proselytization of Islam as a peculiar justification for going to war according to the Islamic tradition of war.16 Moreover, the ten-year encyclopedic research project on international relations in Islam sponsored by the US-based International Institute of Islamic Thought concludes that what determines whether a state of peace or war exists with non-Muslims is their position towards the preaching of Islam.17 But the sharp disagreement between those who are content with the mere safety of Muslims to reside and proclaim their faith in a certain territory to be categorized as a da¯ r al-Isla¯ m and those who claim that the application of non-Shariʿah laws in any territory makes it a da¯ r al-kufr/da¯ r al-h․arb could either make the whole world today either a da¯ r al-Isla¯ m, according to the former, or a da¯ r al-kufr/da¯ r al-h․arb, according to the latter. The significance of the place of Islam in this classical formula of international relations is understood in light of the hostility that characterized the pattern of international relations in which this territorial division emerged. But no less importantly, as shown below, this territorial division theory has legal consequences regarding the sovereignty and the jurisdiction of Islamic law. 307

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3  Sovereignty and jurisdiction In his controversial The Impossible State: Islam, Politics, and Modernity’s Moral Predicament, Wael B. Hallaq writes: Generally, in whichever territory the Sharı¯ʿa is applied as the paradigmatic law, the territory is deemed an Islamic domain, Da¯r al-Isla¯m. Wherever the Sharı¯ʿa does not operate, or in whichever it is relegated to a secondary, inferior status, the territory is deemed Da¯r al-H ․ arb, a territory that is potentially subject to conversion by peace or by war. The ultimate purpose of this conversion is to bring non-Muslims to accept Islam’s law, which is primarily a set of moral principles sustained by legal concepts. Thus, the boundaries and defining concept of the Community is the Sharı¯ʿa. Islam, unless eviscerated, stands or falls on the Sharı¯ʿa.18 These words reinforce the thesis of this chapter about the place of the Shariʿah in determining the Islamic ‘domain’, to use temporarily Hallaq’s term, though the nuances of the deliberations of the classical Muslim jurists as well as the third division are ignored here. That is because, as shown above, the twofold divisions adopted by the majority of the jurists or the threefold divisions adopted by al-Shafiʿi are aimed at ensuring the application of Shariʿah by the Muslim community. The element of safety of Muslims as maintained by Abu ­Hanifa in non-Muslim territories is suffice for a territory to be a da¯ r al-Isla¯ m and permitting the non-Muslim citizens of the Islamic state to be ruled by some of their religious laws as well as the jurisdiction theory treated below refute the claim that the territories ruled by non-­Muslims where obviously Shariʿah ‘does not operate, or in whichever it is relegated to a secondary, inferior status’, are to be forced to accept Islamic law ‘by war’. However, since Islam is a universal religion, Muslims are required to preach it to the rest of the world (Qurʾan 16:125). Agreeing with Hallaq, Khadduri who claims that one of the aims of jihad is ‘the establishment of an imperial world state’, claims that ‘In theory dar al-Islam was always at war with dar al-harb. The Muslims were under legal obligation to reduce the latter to Muslim rule in order to achieve Islam’s ultimate objective, namely, the enforcement of God’s law (the Shariʿa) over the entire world’.19 In his attempt to prove that ‘There never was an Islamic state’,20 Hallaq argues that since sovereignty lies alone in the hands of God and that God is the sole legislator, then Islam aims at ‘building a moral-legal empire’ based on the divine moral will.21 Leaving aside the claim that there can never be an Islamic state in the modern sense of the word because it is not the focus of this chapter, the principle of sovereignty in Islamic constitutional theory is of paramount importance and directly linked to the modern discussion of jihad, particularly since the middle of the 20th century. In fact, Hallaq’s conception of the principle of sovereignty is somewhat a reiteration of the conception of jihad developed by Abu al-Aʿla al-Mawdudi (d. 1399/1979) and popularized by Sayyid Qutb (d. 1386/1966). According to the words of Qutb, since al-h ․a¯ kimiyya (sovereignty) is only for God and therefore His Shariʿah alone must reign over the whole of humanity and that all manmade laws must be abolished, then Islam constitutes a permanent comprehensive revolution against all forms of regimes and governments in order to liberate humanity so that sovereignty returns solely for God. Quoting Qurʾanic texts 3:64, 12:40 and 43:84, and reminiscent of what Hallaq described as ‘a moral-­legal empire’, Qutb maintains that Islam wants to destroy man’s kingdom to establish God’s kingdom on earth. Although apparently self-contradictory and fundamentally utopian, Qutb recognizes that Islam does not accept forced conversion and at the same time he advocates that jihad is not only defensive. Offensive jihad is to be waged until oppressive systems and regimes are removed and then people are to choose their creed freely, Qutb argues.22 308

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The above agreement between Mawdudi-Qutb and Hallaq on resorting to offensive war to ‘bring non-Muslims to accept Islam’s law’ is a revealing development to the doctrine of jihad. Most likely, Faraj, who coined the formula the ‘near enemy’ versus the ‘far enemy’, was influenced by Mawdudi-Qutb’s interpretation of jihad. Hence, it is understandable that Faraj claimed that jihad must be waged a fortiori against the ‘near enemy’, i.e. the Islamic government until Islamic law is wholly applied. In the words of Sohail Hashmi, ‘The focus of [contemporary] fundamentalist argument on war is thus inward, aimed at transforming allegedly hypocritical Muslim societies into true Islamic communities, led by true Muslim leaders’.23 This explains the rise of radical violent Islamist groups who have taken up arms against the regimes in many Muslim states over the last few decades in an attempt to force the Islamization of their societies. In order to achieve this, what Faraj calls ‘the forgotten duty’, i.e. jihad in the sense of armed struggle, must be revived to re-establish the Islamic government system.24 But resorting to offensive war to force the application of Shariʿah law against what Faraj calls the ‘far enemy’, the non-Muslim world, appears out of the question in the literature of even the most terrorist Muslim groups. That is due to, practically speaking, the lack of military force to confront professional armies of the so-called ‘far enemy’. Hence, the re-establishment of the caliphate would be a necessary step to unify the might of the ­Muslims and, according to the claims made by the Islamic State in Iraq and Syria (ISIS), ­Muslims ‘will own the world, and the east and the west will submit to’ them if they re-­ establish the caliphate and renounce ‘democracy, secularism, nationalism, as well as all other garbage and ideas from the west’.25 These recent developments in the doctrine of jihad indicate a drastic and historic change in several respects. First and foremost, apart from invoking jihad by the legitimate authority and/or in case of invasion of the Muslim territory by foreign countries, the jihad in recent decades is mainly undertaken by non-state actors against their own Muslim government. The lack of genuine democratic experiences and the failure to provide services in many of the failed and failing states in the Muslim world lead to radicalization and resort to terrorism. Thus, lamenting this miserable state of most of the Muslim countries, particularly when compared with the past glory of the Islamic civilization, thousands of young Muslims born and/or living in the West have joined terrorist Muslim groups, including, most notably, ISIS. Many acts of terrorism are perpetrated under the guise of so-called jihad by non-state actors who, because of being criminalized and their clandestine nature, resort to sporadic terrorist attacks or guerrilla warfare. In other words, calling such use of force jihad is a misnomer, particularly in light of the complete disregard for the Islamic regulations on the use of force. But the radicalization of young Western Muslims and the call for the adaptation of Islamic laws in Western legal systems necessitate shedding some light on the theory of the jurisdiction of Islamic law. As argued above, the territorial division devised by the classical Muslims jurists aimed mainly at demarcating the territories which are peaceful/hostile to the practice and application of Islam. Therefore one can safely say that these divisions have fallen into abeyance – as generally believed by Muslims – following the establishment of the United Nations and the world’s agreement on the prohibition of offensive war. As a practical consequence of this division, the issue of the jurisdiction of Islamic law came to the forefront of the discussion. Before delving into the issue of the jurisdiction of Islamic law, it should be mentioned here that classical Muslim jurists divided the individuals of their world into four categories: 1) Muslim, whether living in da¯ r al-Isla¯ m or in any other part of the world; 2) dhimmi (a non-Muslim permanent citizen of the da¯ r al-Isla¯ m); 309

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3) mustaʾmin (a non-Muslim temporary resident/visitor of the da¯ r al-Isla¯ m); and 4) ․harbı¯ (a belligerent enemy). It is interesting to find that classical Muslim jurists of the four Sunni schools of Islamic law developed three theories regarding the jurisdiction of Islamic law. According to the first theory, developed by Abu Hanifa, the eponymous founder of the Hanafi school of law, ­Islamic law has jurisdiction inside the da¯ r al-Isla¯ m over only Muslims and dhimmis. Hence, Abu ­Hanifa adopts the principle of the territorial jurisdiction of Islamic law, but at the same time he also does not apply Islamic law to non-Muslim, non-permanent citizens of the Islamic state, i.e. the mustaʾmin and the ․harbı¯ , even for acts undertaken by them inside the da¯ r al-Isla¯ m. Sovereignty over territory and its permanent citizens are both pre-requisites for the jurisdiction of Islamic law according to Abu Hanifa. Thus, Muslims are not punished for crimes committed outside the da¯ r al-Isla¯ m. More interestingly, non-Muslim permanent citizens are allowed, for example, to eat pigs or drink wine because these are permissible in their religions, though prohibited in Islam. Maintaining the territorial jurisdiction theory championed by his teacher Abu Hanifa, judge Abu Yusuf (d. 798) developed the second jurisdictional theory arguing that Islamic law should be applied to non-Muslim temporary residents of the Islamic state. As for the third jurisdictional theory developed by the majority of the Sunni Muslim jurists, in addition to the jurisdiction over any acts committed inside the da¯ r al-Isla¯ m, Islamic law has universal jurisdiction over Muslims and dhimmis irrespective of whether they live in the da¯ r al-Isla¯ m or not.26 Therefore, the claim raised above by Hallaq about forcing non-Muslims to accept Islam’s law is not true because, for example, according to Abu Hanifa’s jurisdictional theory, first, Islamic law does not have jurisdiction over non-Muslim temporary residents/visitors of the da¯ r al-Isla¯ m; second, Islamic law is not strictly applied to non-Muslim permanent citizens and as a result they are allowed by Abu Hanifa to drink wine, for example, which is a major sin and a punishable ․hadd crime for the Muslims; and third, Islamic law does not have universal jurisdiction over Muslims outside of the territories of the da¯ r al-Isla¯ m. Moreover, this succinct presentation of the three Islamic jurisdictional theories and the discussions and deliberations of the classical Muslim jurists prove that the main concern of their discussions of this issue is a practical matter, mainly, developing the rules regulating the actions of both Muslims and non-Muslims within these specific three jurisdictional theories.

Conclusion There is no doubt that the current literature on the subject of jihad is full of sweeping oversimplifications of such complex and purely contextual legal tradition. The above discussions of the four issues of the justifications for jihad, the territorial division of the world, sovereignty, and jurisdiction of Islamic law are key to understanding the nature of the doctrine of jihad. In fact, these four issues are inextricably linked. Apart from defensive jihad against the invasion of Muslim territories, the main justification for the doctrine of jihad is the persecution and oppression of Muslims because of their practice and application of Islam and its law. Hence, classical Muslim jurists devised their two- or threefold figurative territorial divisions of the world according to this criterion. As a practical consequence of these divisions, classical Muslim jurists discussed, deliberated and developed the rulings regulating the interaction between the da¯ r al-Isla¯ m with the da¯ r al-kufr/da¯ r al-h ․arb and da¯ r al-s․ulh ․ in times of peace and war. These rules include, for example, the application of the Islamic penal codes over the crimes committed inside the da¯ r al-Isla¯ m or committed by its citizens outside of its 310

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territories, international trade, and concluding covenants with da¯ r al-kufr/da¯ r al-h ․arb and da¯ r al-s․ulh․. This purely pre-modern contextual structure upon which the doctrine of jihad was based and developed has collapsed following, most prominently, the establishment of the UN. By signing the UN charter, member states agree to abide by the prohibition on the resort to offensive war and to respect and observe human rights and fundamental freedoms. As a consequence, the da¯ r al-kufr/da¯ r al-h․arb ceased to exist and the entire world, even according to the classical territorial division, became either a da¯ r al-Isla¯ m, according to the majority of classical Muslim jurists, or da¯ r al-s․ulh․, according to al-Shafiʿi. Disregarding these changes in the paradigms of international relations between the classical Muslim jurists and the post-UN world is to read jihad out of context and to underestimate the legal heritage of one of the world’s greatest, most complex, and richest legal traditions, pure and simple. Fortunately, the classical Islamic legal literature has left an immensely detailed and humane body of regulations on the use of force, in particular, that can have the greatest impact on preventing non-international armed conflicts and humanizing both international and non-international armed conflicts. Since most cases of jihad following the independence of the Muslim countries were invoked by non-state actors, including radical and terrorist groups mainly in non-international armed conflicts, Islamic rules on the use of force have been misinterpreted and selectively abused by terrorist groups such al-Qaeda and ISIS. This means that the since jihad as the Islamic just war theory will be utilized by Muslims, the question of what constitutes jihad and, more importantly and specifically, the Islamic rules on the use of force in contemporary war situations, which differ considerably from that of the primitive war situations of the classical Muslim jurists, will continue to be debated by Islamic scholars and the just war theorists.

Notes 1 For the fighting contexts see Qurʾan 3:142; 4:95 (3 times); 9:16, 24, 41, 44, 81, 85, 88; 61:11. For the non-fighting context see Qurʾan 2:218; 5:35, 53–4; 6:109; 8:72, 74, 75; 9:19–20, 73, 79; 16:110; 22:78 (2 times); 24:53; 25:52 (2 times); 29:6 (2 times), 8, 69; 31:15; 35:42; 47:31; 49:15; 60:1; 66:9. 2 Qurʾan 22:39–40. All translations of the Qurʾanic texts are mine. 3 Qurʾan 4:75–6. 4 See, for example, Qurʾan 2:191–3, 217; 8:39. 5 Qurʾan 2:190, 193; 4:75; 22:39–40. 6 Qurʾan 2:106. 7 Qurʾan 16:106. 8 See, for example, M. Cherif Bassiouni, ed., A Manual on International Humanitarian Law and Arms Control Agreements (New York: Transnational Publishers, 2000), 9. 9 Qurʾan 2:205. For further exploration, see Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations, Palgrave Series in Islamic Theology, Law, and History, vol. 2 (New York: Palgrave Macmillan, 2011), 126–9. 10 Ibid., 128. 11 Wahbah al-Zuhayli, Athar al-Harb fi al-Islam: Dirasa Muqarana, 3rd edn (Damascus: Dar al-Fikr, 1998), 172. 12 See Mahmud Shaltut, Al-Fatawa: Dirasa li-Mushkilat al-Muslim al-Muʿasir fi Hayatih al-Yawmiyya alʿAmma, 19th edn (Cairo: Dar al-Shuruq, 2009), 375. 13 See ibid., 175. 14 Majid Khadduri, War and Peace in the Law of Islam (Baltimore, MD: Johns Hopkins University Press, 1955), 51. 15 Al-Zuhayli, Athar al-Harb fi al-Islam, 181. 16 See, for example, ʿAbd al-Halim Mahmud, ‘Al-Jihad’, Kitab al-Muʾtamar al-Rabiʿ li-Majmaʿ alBuhuth al-Islamiyya (Cairo: Majmaʿ al-Buhuth al-Islamiyya, 1968), 36; Ismaʿil R. al-Faruqi, ‘Islam and Other Faiths: The World’s Need for Humane Universalism’, in The Challenge of Islam, ed. 311

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17 18 19 20 21 22 23 24 25 26

Altaf Gauhar (London: Islamic Council of Europe, 1978), 100; Tawfiq Wahba, Al-Harb fi al-­I slam wa-fi al-Mujtamaʿ al-Dawli al-Muʿasir, Kutub Islamiyya, Issue 145 (Cairo: Supreme Council for ­Islamic Affairs, 1973), 21ff. See ʿAbd al-ʿAziz Saqr, Al-ʿAlaqat al-Dawliyya fi al-Islam Waqt al-Harb: Dirasa lil-Qawaʿid al-­Munazzima li-Sayr al-Qital, Mashruʿ al-ʿAlaqat al-Dawliyya fi al-Islam 6 (Cairo: Al-Maʿhad al-ʿAlami li-l-Fikr al-Islami, 1996), 7–29. Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2014), 49. Majid Khadduri, ‘Islam and the Modern Law of Nations’, The American Journal of International Law 50(2) (April 1956): 359. Hallaq, The Impossible State, 48. Ibid., 50ff. See Sayyid Qutb, Fi Zilal al-Qurʾan, vol. 3 (Beirut: Dar al-Shuruq, 1982), 1432–47. Sohail H. Hashmi, ‘Islam, Sunni’, in Encyclopedia of Religion and War, ed. Gabriel Palmer-Fernandez (New York: Routledge, 2004), 221. See Muhammad ʿAbd al-Salam Faraj, ‘Translation of Muhammad ʿAbd al-Salam Faraj’s Text Entitled Al-Farida Al-Ghaʾiba’, in J. J. G. Jansen, The Neglected Duty: The Creed of Sadat’s Assassins and Islamic Resurgence in the Middle East (New York: Macmillan, 1986), 159–234. https://ia902505.us.archive.org/28/items/poa_25984/EN.pdf (accessed 29 August 2015). Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, paperback edn (Cambridge: Cambridge University Press, 2006), 177.

Selected bibliography and further reading Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2006). Bassiouni, M. Cherif (ed.). A Manual on International Humanitarian Law and Arms Control Agreements (New York: Transnational Publishers, 2000). Dawoody, Ahmed al-. The Islamic Law of War: Justifications and Regulations. Palgrave Series in Islamic Theology, Law, and History (New York, Palgrave Macmillan, 2011). Faraj, Muhammad ʿAbd al-Salam. ‘Translation of Muh․ ammad ʿAbd al-Sala¯ m Faraj’s Text Entitled ­A l-Farı¯d․ ah Al-Gha¯ ʼibah’. In The Neglected Duty: The Creed of Sadat’s Assassins and Islamic Resurgence in the Middle East, trans. J. J. G. Jansen (New York: Macmillan, 1986), 159–234. Faruqi, Ismaʿil R. al-. ‘Islam and Other Faiths: The World’s Need for Humane Universalism’. In The Challenge of Islam, ed. Altaf Gauhar (London: Islamic Council of Europe, 1978), 196–218. Hallaq, Wael B. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: ­Columbia University Press, 2014). Hashmi, Sohail H. ‘Islam, Sunni’. In Encyclopedia of Religion and War, ed. Gabriel Palmer-Fernandez (New York: Routledge, 2004), 217–21. Khadduri, Majid. War and Peace in the Law of Islam (Baltimore, MD: Johns Hopkins University Press, 1955). Khadduri, Majid. ‘Islam and the Modern Law of Nations’. The American Journal of International Law 50(2) (April 1956): 358–72. Mahmud, ʿAbd al-Halim. ‘Al-Jihad’. Kitab al-Muʾtamar al-Rabiʿ li-Majmaʿ al-Buhuth al-Islamiyya (Cairo: Majmaʿ al-Buhuth al-Islamiyya, 1968). Qutb, Sayyid. Fi Zilal al-Qurʾan (Beirut: Dar al-Shuruq, 1982). Saqr, ʿAbd al-ʿAziz. Al-ʿAlaqat al-Dawliyya fi al-Islam Waqt al-Harb: Dirasa li-l-Qawaʿid al-Munazzima li-Sayr al-Qital. Mashruʿ al-ʿAlaqat al-Dawliyya fi al-Islam 6 (Cairo: Al-Maʿhad al-ʿAlami li-l-Fikr al-Islami, 1996). Wahba, Tawfiq. Al-Harb fi al-Islam wa-fi al-Mujtamaʿ al-Dawli al-Muʿasir. Kutub Islamiyya, Issue 145 (Cairo: Supreme Council for Islamic Affairs, 1973). Zuhayli, Wahbah al-. Athar al-Harb fi al-Islam: Dirasa Muqarana, 3rd edn (Damascus: Dar al-Fikr, 1998).

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18 Fiqh al-aqalliyya¯ t and ­Muslim minorities in the West Said Fares Hassan

1  New minority developed Today, one third of the world’s Muslim population lives in countries where they constitute a minority. This situation in itself is not new. Muslims have experienced minority life since the early years of Islam. The first wave of Muslim immigration to Abyssinia (614–615 CE) is a case in point. Due to political and territorial struggle, Muslims also had minority experiences in places like Spain, Sicily, the Balkans, China and India. This long history of minority experience did not result – on the part of early and pre-modern jurists – in the formulation of a concrete jurisprudential position towards minority Muslim communities.1 Instead, earlier jurists tended to address questions about Muslims living outside the world of Islam as individual cases. They did not systematically or thematically group these questions or work out a methodology to deal with them. Jurists did not feel the need, in their writings and debates, to address the notion of developing constructive Muslim minority life. This does not mean that their debates were superficial or insignificant. Rather they were complex and diverse. Jurists of various schools discussed various ‘minority’ questions and projected different positions based on their geopolitical setting and juridical orientations. They debated the rulings pertaining to immigration, definition of da¯ rs, i.e. land (both da¯ r al-Isla¯ m and da¯ r al-h․arb), the boundaries of Islamic jurisdiction, the limitations of manifesting one’s religion and the role of ama¯ n, i.e. contracts that guarantee the safety of the individuals, in defining Muslims’ relation to the non-Muslim territory. Khaled Abou El Fadl argues that there are three main questions that the juristic debate pertaining to Muslims residing in non-Muslim polities focused upon: Were Muslims permitted to reside in a non-Muslim territory? Were Muslim minorities part of the Muslim Umma or did they constitute a special class of Muslims? What were the obligations of Muslim minorities towards Islamic Law, and towards their host states? These questions are discussed within the framework of four key issues: 1) residence in a non-Muslim land; 2) ability to practise Islam, especially rituals; 3) jurisdiction; and 4) interaction with non-Muslims. Definitely, these three questions have driven the debate with all its complexities and other sub-issues throughout Islamic legal history up until the present time. Muslim immigration in the second half of the 20th century to the Western world presented a new phenomenon in the history of Muslim minority communities. During this time, 313

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Muslims immigrated in unprecedented numbers to Western Europe and North A ­ merica. Although this immigration was of different modes, involving different types of immigrants and representing different forms of relationships with host societies, in general it represented a new reality where Muslims did not migrate from non-Muslim polities to Muslim lands, but instead there was a reverse hijra where Muslims immigrated from the land of Islam to non-Muslim territories. These immigrant Muslims (between the 1950s and the late 1970s) had a mentality of temporal settlement and isolation, and were often waiting to achieve a specific task – to improve their economic situation, escape political persecution, receive an education, etc. – before returning to their home country. They rationalized their isolation by referring to traditional legal doctrines that view with suspicion any interaction with non-Muslims in non-Muslim lands. These doctrines caused immigrants to reject their place of residence due to the belief that they would be subject to non-Muslim rule, add to the strength of a non-Muslim state, and betray the Umma. The assumption was that the best they could do until they rectified their situation was to work to keep their Islamic identity intact and their community protected from assimilation into the non-Muslim culture. This was the function of early Islamic institutions such as mosques and centres that were built in the West in the 1970s and the 1980s. Within a few decades, however, Muslim immigrants realized that the new land had become their new home, and they were the ones who needed to rethink their tradition in light of the changing realities. The attitudes of early immigrants changed, and a solid Muslim community started to carve its way into the Western public sphere. Gradually, Muslim immigrants developed concerns about their Islamic identity. They faced the challenge of how to make their lives ‘Islamic’. Though the meaning and scope of the word ‘Islamic’ varies from one group to another, the underlying aspiration of Muslim immigrants – living according to the teachings of Islam – remains essentially the same. For some, the challenge of constructing an ‘Islamic life’ presented a significant dilemma. On the one hand, submission to their beliefs required them to abide by certain Islamic law rulings, which many Muslims believe to be based on divine texts and/or prophetic commands. At the same time, these immigrants sought to adapt to their new place and adhere to its positive laws, which might contradict some norms of their belief system. It is noted that Islamic law is blended with the culture of its people. With time, it becomes hard to distinguish between the two, i.e. Islam and culture, until one encounters an opposing culture. At this moment the question of the Islamicity of certain acts is raised and strongly debated. In order to resolve such dilemmas vis-à-vis Islam, 20th-century Muslims immigrants often resorted to the advice of imams or muftis. They sought answers to questions about almost every detail of their lives. They questioned their immigration and their acquisition of new citizenship. They asked about food, drink and clothing, and they inquired about work, social interaction and mingling with their non-Muslim fellow citizens. A new genre of fiqh called ‘fiqh al-aqalliyya¯ t’, i.e. fiqh of minorities, started to pave its way to scholarship as a new attempt to revisit immigrants’ questions and reconsider them in light of the new space and time. The experience of Muslim minorities of the second half of the 20th century was also different from the earlier presence of Muslims in non-Muslim polities due to a number of significant shifts in the structure of both the host society and the Muslim communities themselves. With the steady increase of Muslim immigrant numbers and the visibility of their presence, the West’s old historical conflict with Islam, informed by orientalists’ positions and essentializing discourses, was carried into the modern time and revealed various prejudices, the most important of which is that Islam is inherently anti-modern and that its adherents cannot, therefore, be integrated into the modern West.2 Discrimination and biased media 314

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coverage played a role in asserting and disseminating a hostile attitude toward Muslims. Such hostility towards Islam, for some Muslims, resulted in an intensification of their personal attachments to Islam and their affirmation of their Islamic identity. Conscious affirmation of one’s Islamic identity in response to discrimination and victimization was empowered by an external travelling factor, i.e. the spread of the influence of Islamic Awakening in the Muslim world. Two competitive forces of the Awakening, the Muslim Brothers and the Wahhabi-oriented organizations, exerted huge efforts to reach Muslim minorities. A significant number of Muslim Brothers immigrated to the West to escape political persecution. They brought with them their ideologies and established institutions and organized work among the ranks of the Muslim minorities. Wahhabi-oriented organizations dedicated huge funds for Daʿwa purposes in the West. They funded the establishment of many Islamic centres, donated large numbers of Islamic books and materials in foreign languages and provided scholarships to European and American Muslims to study Islam in Mecca or Medina. Both forces made an impact in the early formation of Muslim minority identity in the West. Also in the late 1980s, Muslim communities witnessed the rise of the second and third generations of young Muslims who knew no home other than the Western world. These young Muslims had aspirations and the power to persuade parents dreaming of returning to their home country to stay permanently in the non-Muslim land. Next to these internal changes in the structure of Muslim minority communities, the secular liberal western democracy provided a reasonable space for Muslims to express themselves both as Muslims and as citizens. Given this process of identity construction, threat of Islamophobia, community awareness, the rise of the second and third generations, and the liberal western democratic environment, the traditional answer for minority questions which would basically require immigration to the land of Islam was questioned. Moreover, many Muslim scholars argued for the need of an intellectual juristic renewal and a new methodology to deal with Muslim minority questions.

2  New fiqh created At a conference organized by the Union des Organisations Islamiques de France (UOIF) in 1992, a number of fiqh experts came together to discuss the question of the legality of Muslims’ residence in the west. It is important to note that the real issue for these experts was not whether fiqh would permit Muslims to remain in Europe but how fiqh should be related to the Muslim minority normative obligations in Europe as Muslims and how to relate this fiqh to contextual reality, rather than to textual historical assumptions. Their meetings, though, resulted in a number of positive resolutions, but more importantly a need to develop an institution to cater for legal needs of Muslim minorities was felt. In due time this resulted in the establishment of the European Council for Fatwa and Research (ECFR) in London in 1997 (a few years later, the ECFR was relocated to Dublin, Ireland). During the 1990s, as a result of the ongoing transformation in the Muslim immigrant communities in the West, an enormous body of ‘religious’ questions were directed to imams, muftis and Muslim leaders. Some imams and Muslim leaders compiled their fatwas for Muslim minorities for publication. Dr Darsh’s Questions and Answers about Islam (1997),3 for example, contains a large selection of his biweekly column ‘Questions and Answers about Islam’ which appeared in Q-News International, a Muslim weekly newspaper published in English. By the advent of the 21st century, a number of similar compilations and treatises were published.4 These various publications paved the way for the emergence of a new jurisprudential category that extended beyond fiqh or fatwa cases. Rather it seeks to develop a new genre of 315

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jurisprudence, fiqh al-aqalliyya¯ t. This fiqh aims at providing a general framework of objectives, characteristics and fundamentals for a minority-based fiqh, which considers the distinctive traits of each minority and their position in the new states. In other words, this fiqh intends to change the rulings pertaining to Muslims living in minority situations from rukhas (­licence)-labelled rulings to widely acknowledged established rulings. As early as 2000, the expression ‘fiqh al-aqalliyya¯t’ had come to be an established term, but nobody clearly knows who was the first to coin the term or introduce it. Some claim that al-Qaradawi did so with his early book Al-Halal wa-l-Haram (1960). Others argue that Taha Jabir al-ʿAlawani first introduced it with his papers in various conferences and periodicals, particularly those presented around 1994. A third hypothesis argues that Dr ʿAbd al-Majid al-Najjar or Dr Muhammad Fat-hy Othman was the first. In any case, the publications of al-Qaradawi and al-ʿAlawani led to the term’s acceptance in many scientific and public circles. Their writings shifted the debate from the mere issuing and publishing of fatwas to the creation of a framework on how to deal with ‘religious’ (here, an ambivalent term that has ritual, social, economic and political dimensions) questions of a Muslim minority. In other words, the process of establishing a new category of fiqh called fiqh al-aqalliyya¯t started. In due time, the title ‘fiqh al-aqalliyya¯t’ become institutionalized through its acknowledgement by Muslim local and international juristic councils such as the European Council for Fatwa and Research, the American Muslim Jurists Association, the Islamic Society of North America, ­the Islamic Fiqh Academy, al-Azhar, etc. From reading the available literature published by the proponents of this fiqh, however, no clear definition of the concept of fiqh al-aqalliyya¯ t emerges. In his Fi Fiqh al-Aqalliyya¯ t al-Muslima, al-Qaradawi does not provide a legal definition, focusing instead on the fiqh’s objectives, characteristics and sources. One reason for this disinterest in a legal definition is that al-Qaradawi considers fiqh al-aqalliyya¯ t a part of the general fiqh (al-fiqh al-ʿa¯ mm), the only difference being that this new category of fiqh considers the current political and social changes for which the old fiqh did not account. He argues that if there exists a fiqh of zakat and a fiqh of politics, then there exists room for a fiqh for aqalliyya¯ t.5 His version of a fiqh for minorities calls for reading classical sources, identifying all issues that are relevant for minorities, organizing and analysing these issues and then contextualizing them within the special needs of the minority in question, thereby reaching a better solution and more practical fatwas. Given this interpretation, one can anticipate al-Qaradawi’s sources for his fiqh al-aqaliyyat: the Qurʾan, the Sunnah, Ijma¯ ʿ and Qiya¯ s. After that, consideration of other sources can be identified: ʿUrf, istis․la¯․h, istih․sa¯ n, sadd al-dhara¯ ’iʿ, etc. However, al-Qaradawi qualifies his usage of these sources by arguing that he intends to use them within a framework of Ijtiha¯ d that takes into account the comprehensive rules of fiqh, the exigencies of the time, the interest of the Muslim community (rather than only the individual interest), the consideration of the gradual application of the rulings, the recognition of human contemporary necessities and the liberation of oneself from commitment to any single school of thought.6 One may argue that this methodology operates in al-Qaradawi’s overall discourse and in his projects of ‘Taysı¯ r al-Fiqh’ and ‘Fiqh al-Awlawiyya¯ t’. Fiqh al-Aqalliyya¯ t is essentially a continuation of his methodological framework. Al-ʿAlawani, on the other hand, focused on methodology and attempted to define the meaning of fiqh al-aqalliyya¯ t. His definition, however, also lacks a legal dimension. After defining what constitutes fiqh and minority, he attempted to define fiqh al-aqalliyya¯ t, but, instead, ends up merely justifying the need for that fiqh. He describes it as “a qualitative fiqh that considers the interaction between the Islamic legal rulings and the conditions of the community and the polity in which it lives.” He characterizes it as “a fiqh that applies to a

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limited restrained community living under special circumstances. What might be good for that community may not be so for another.” 7 The sources of fiqh al-aqalliyya¯ t, according to al-ʿAlawani, start with the Qurʾan and the ­Sunnah. The classical fiqh, especially that which in relation to the interaction between ­Muslim and non-Muslims, is historically bound and irrelevant to our present time. The classical fiqh arguments can be taken as precedents but they should not govern our positions.8 Apart from al-Qaradawi and al-ʿAlwani, other Muslim scholars engaged in the debate. ʿAbdullah al-Najjar,9 a member of the ECFR, tried to underline the justifications for the need of fiqh al-aqalliyya¯ t. He argued that the Islamic jurisprudence manuals have little to say about the current situations of Muslims. He gave two reasons for this. First, the detailed rules of religion were based on the supremacy of Islam and the ability of the community to apply its rules collectively under an Islamic state. The case when Muslims lived under non-Muslim rules was discussed under general rules that do not correspond to the current presence of Muslims in non-Muslim nation-states. Second, the historical moment when Muslims were subject to non-Islamic rule were moments of intellectual stagnation and weakness, a matter which did not encourage the establishment of a solid framework for Muslims in a non-­ Muslim polity. Even the current residence of Muslims in the West began at a time when the Muslim world was itself dominated and colonized by the West. However, the new presence of Muslims in the West, under the new geography of the world, has proven an asset for Islam and Muslims that needs to be supported. Although Muslim jurists, he argues, try to respond to the new situations with their fatwas and studies, their efforts lack an essential element, the establishment of legal us․u¯lı¯ rules that consider the peculiarities of the new situation. These new rules will not disregard the general us․u¯lı¯ rules but will add to them a greater focus on the needs of Muslim minorities. These principles would include maintaining the religious life of Muslim minorities, introducing Islam to the wider society, and establishing a civilized and collective fiqh that is not limited to ʿibada¯ t, but rather incorporates all walks of life and determines their relationships with their society, their environment, etc.10 Salah Sultan,11 a member of the Fiqh Council of North America, argues, in the same vein, for the need for methodological principles for fiqh of minority. The most interesting aspect of his research, however, is his argument that the fiqh of minority should be based on strengthening feelings of citizenship and belonging to one’s country. His language represents a paradigm shift from both traditional and contemporary discourses in that he does not begin by establishing a jurisprudential basis for his analysis. Instead he jumps to what some other scholars may consider a conclusion. In other words, Sultan calls on the proponents of that fiqh to make it a positive fiqh rather than a defensive one.12 Analysing the different positions discussed in different sources, one can argue that al-­ Qaradawi represents a trend of traditional reformism that bases its analysis on the general basic rules of traditional fiqh. Al-Najjar and Sultan take the issue a step further by factoring in the context. Al-Najjar concentrates on us․u¯lı¯ rules, while Sultan considers citizenship in the society an us․u¯lı¯ principle that takes priority. Al-ʿAlawani, on the other hand, represents a more intellectually and philosophically oriented school. The discourse of fiqh al-aqalliyya¯ t was primarily developed by Sunni activist-jurists of Arab origin who immigrated to the West in the 1980s and 1990s, or those who had strong connections with those immigrants either due to activists’ circles or governmental support. Although many non-Arab immigrants, especially Indian and Pakistani scholars, have been increasingly participating in the legal debate during the last decade, the discourse itself is dominated by Arab jurists and intellectuals. This may be due to the fact that non-Arab

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immigrants, who are mostly South Asians, have had prior experience with both secularism and minority issues in their home countries, having engaged and worked with non-­Muslims in an open environment. Therefore, they did not have much problem seeking Western citizenships or politically engaging with the non-Muslim polity. But Arabs did not have this experience. Instead, their memories are alive with colonized histories followed by despotic regimes that used puritan forms of religion to control the masses and galvanize them against the ‘liberal’ West. This created an internal dynamic of distancing oneself from the culture and politics of the ‘other’. It took Arab immigrants some time to realize the qualitative difference of their new life and its potential for their advancement, whether in political, economic or even religious realms. Most of those involved in the discourse of fiqh al-aqalliyya¯ t have an affiliation with modern movements of political Islam, especially the Muslim Brothers. As activists in an alien setting, they needed to justify their presence in relation to their faith and to their country of origin. Also as activists within their new residence, they sought to maintain an Islamic vision of life and promote it among their fellow Muslims. This was done through establishing national institutions such as the Muslim Student Association in the United States and the Federation of Islamic Organization in Europe. The more engaging these institutions were with their local and non-Muslim community, the more the need was felt for a specific legal discourse, i.e. fiqh al-aqalliyya¯ t, that responds Islamically to the new challenges. How to relate this new branch of jurisprudence for minorities with ‘traditional’ fiqh? What is the impact that minority fiqh has on traditional fiqh and vice versa? Legal debate shows that jurists mostly consider fiqh of minority as a sub-category of traditional fiqh. They share the same sources, the same legal principles, the same deductive rules, etc. They differ in the consideration of the context that may require a re-ordering of priorities or overweighing a certain juristic position. In such a way, fiqh al-aqalliyya¯ t is a label for a methodology of sifting, compiling and organizing traditional fiqh positions in a way that presents urgent minority questions in a mild accommodating manner. Other jurists, however, redefine the meaning of fiqh, so as not to limit its connotation to legal determinations but to signify the earlier usage of the term to cover theology, law and ethics. Some other jurists relate fiqh al-aqalliyya¯ t to modern understanding of the function of law, i.e. an epistemological field that requires the interaction of various realms: the legal, the sociological, the psychological and the historical. The main concern of the minority jurists is to go beyond the literal adoption of traditional fiqh and look for the general absolute principles of Shariʿah. If certain traditional jurists divided the world into two abodes, the abode of Islam and the abode of War, Shariʿah does not obligate that. If traditional jurisprudence demands Muslims to be loyal only to one entity, Shariʿah allows multiply loyalty, to one’s religion, to one’s residential community, to one’s family, etc. Fiqh al-aqalliyya¯ t uses the rich Islamic legal tradition to provide jurists and leaders of Muslim minorities not only with answers for their questions but also with legal premises that may be utilized on one hand to ethically respond to the claims of a Muslim’s inherent disloyalty to his non-Islamic state and on the other hand to support Muslims’ social bonds and enhance their political influence within the non-Muslim general public. These legal premises include: deepening the feeling of citizenship; responsibility for the welfare of one’s country (even if it is non-Muslim); stressing the civilized dimension of Islamic Law (e.g. jurisprudence for the environment, for human rights, for minority rights, etc.); the practice of collective Ijtiha¯ d; the significance of piety in legal deduction; the consideration of community priorities; and finding legitimate alternatives for forbidden matters in minority contexts. Although these ideas were mainly introduced in the context of minorities, they have been reiterated and affirmed 318

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in some contexts in the majority context, a matter that shows the travel and impact of ideas back and forth between majority and minority Muslim communities. Fiqh al-aqalliyya¯ t has also been used as an intellectual forum to introduce an Islamic perspective on the question of world minorities, which has been one of the challenges encountering modern nation states in the contemporary world. In his study Jamal al-Din ‘Atiyya, Nahwa Fiqh Jadid li-l-Aqalliyyat (Cairo: Dar al-Salam, 2007), for example, Jamal al-Din ʿAtiyya, an Islamic Law scholar and lawyer, examines the question of world minorities, regardless of their ethnic, religious or linguistic origin. He argues that there is no contradiction between the international legal conventions and the Islamic legal tradition on minority questions. Rather, they complete each other. The Islamic vision introduces theoretical basics and practical principles that constitute a substance that international treaties translate into legal commitments, and establishes necessary mechanisms to monitor the application of these commitments. The impact of minority fiqh is not confined to minority communities, but it has an impact on the field of Islamic Law as a whole and the conceptualization of its role in the modern world. As modern Muslim jurists stress the need to ijtiha¯ d, tajdı¯ d and reform, minority jurists found the field of minority jurisprudence a good space to test their ijtiha¯ d methodologies and reform ideas. The advocates of this fiqh had their own ijtiha¯ di projects with a view to making Islam, referred to here as fiqh, relative to the questions and conditions, be they political, social or scholastic, of the present time. Al-Qaradawi, for example, introduced his project of moderation and facilitation, where he attempts to present a moderate vision of how to reclaim the spirit of Islam and how to redefine the role of Muslims in present-day life. Al-ʿAlwani proposed his ijtiha¯ di project of the Islamization of Knowledge, where he aims to revive the universal Islamic philosophy of knowledge by redefining the objectives of the Shariʿah. Jamal ʿAtiyya, an advocate of fiqh al-aqalliyya¯ t, pioneered the project of al-tanwı¯ r al-Isla¯ mı¯ , that is, the Islamic Enlightenment Project. In this project ʿAtiyya calls for a new ijtiha¯ d/revival of the science of the principles of jurisprudence. Those scholars managed to utilize the minority space to apply their reform projects. In another way, those jurists used minority questions to test their reform projects. For example, al-Qaradawi bases his fatwas on the principle of facilitation and removing people’s hardships even if this means not adopting the position of the majority of jurists (see, for example, his fatwa on the conditional permissibility of mortgage). As another example, Al-ʿAlawani applies the principle of islamization through the widening of the scope of fiqh and incorporating interdisciplinary branches of knowledge such as sociology and psychology to answer a minority question (see his fatwa on political participation). The language of the discourse of fiqh al-aqalliyya¯ t is different from the traditional fiqh in its conceptualization of the non-Muslim ‘other’. While traditional fiqh bases its positions on the division of the world and the classifications of people into Muslim, dhimmı¯ , ․harbı¯ and mustaʾman, contemporary minority jurists stress the values of justice, freedom and human rights. This value-based discourse is unusual in the context of Muslims’ discussion of the Western world. Not long ago, and even in some circles today, the West is often seen as an immoral land without values. If contemporary anti-Muslim trends promote a conflict of civilizations, the Muslim literature talks about a conflict of values. To challenge this value conceptualization of the West, fiqh al-aqalliyya¯ t provides Muslim minorities with a different evaluation of the Western value system (of justice, equity, egalitarianism, etc.). In fact, it makes them universal, and as such Islamic. In so doing, fiqh al-aqalliyya¯ t promotes not only a normalization of Muslims’ lives in the West from a juridical point of view, but also from an ethical and moral point of view. This means a moral commitment to maintain the basic political and social values of the non-Muslim society such as justice, freedom, equality, etc. This commitment cannot be maintained until there has been a process of critical investigation and redefinition 319

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of the Islamic classical jurisprudential classification of the world into da¯ r al-Isla¯ m and da¯ r al․harb. Minority jurists hold that this binary division of the world is context-specific and inapplicable to the contemporary world. If there is at all a need to divide the world, the negative identification of an abode is no longer legitimate. Alternatives such as an abode of humanity, an abode of immigration, an abode of citizenship or an abode of co-existence and cooperation, or an abode of contract are more valid than other negative divisions. Consequently, the jurisprudence of minorities is better called jurisprudence of citizenship or co-existence or fiqh al-taʿaruf, i.e. knowing one another. In a practice of adaptation, accommodation and negotiation with contextual realities and a reaffirmation of the changing nature of the Islamic legal system, fiqh al-aqalliyya¯ t aims at four parallel goals. First, it contextualizes the legal tradition by arguing that the classical tradition is a result of its own context. Second, it normalizes a Muslim’s life in the West by providing evidence that Western life is in harmony with Islamic principles. Third, it argues that certain Shariʿah principles do not contradict liberal ethical beliefs. Fourth, it constructs a neo-Muslim identity where law, context and identity converge and balance. The ultimate objective of this process is to normalize Muslims’ life in the West via an Islamicized package that addresses individuals’ religious aspirations, the integrity of traditions, the authority of jurists, the threat of identity erasure in a globalized context, and the theoretical discourse of globalization and liberalization. Kathleen Moore elaborates that diasporic jurisprudence is a form of legal strategy designed to ‘normalize’ Muslims’ presence in the West, not necessarily in terms of the dominant institutions of a society, but internally, through the conscious use of Islamic idioms. The use of Islamic idioms serves multiple purposes: it empowers the identity of Muslims by connecting it to its historical roots; it assures the non-Muslim society that ­Islam has internal dynamics that fit their framework of reference and that Islamophobic claims are not warranted; it provides verification that the discourse participants are legally qualified and authorized to examine the issue; it renders their discourse authoritative enough for the satisfaction of diverse groups; and it constructs normative claims that can serve as principles for future debates.13 These various elements have been evident in the discourse of minorities. One may venture to argue that were it not for this internal discourse, Muslim integration into Western societies would not be complete. At the same time that the debate on the Islamicity of the presence of Muslim minorities in non-Muslim polities was on the rise among Muslim concerned bodies, western-based scholars contributed to the understanding of this phenomenon. Although many of their writings focused mainly on the historical and social setting,14 others, though few, realized the significance of the emerging religious discourse. Koningsveld stressed the significance of fatwas in the formulation of a European Muslim identity.15 Rohe discusses the possibilities and opportunities of accommodation between Muslims, Islamic law and European laws through legal arrangements and religious non-binding verdicts ( fatwa).16 More recently, young western researchers observed the rise of the minority fiqh debates and extensively investigated the growing discourse. Informed by liberal political theory, March illustrates the presence of moral obligation in Islamic law and the possibility of overlapping consensus between liberal principles of citizenship and fiqh al-aqalliyya¯ t.17 Hellyer underlines the parameters of a social setting to build a European identity for Muslim citizens.18 Alexandre Caeiro focuses on the process of fatwa-production in the west and the case of the European Council for Fatwa and Research.19 Hassan recognizes three different approaches (literalist, conservative and renewal) to religious questions of Muslim minorities, each of which would result in different, sometimes competing, world views of the law of Islamic law for Muslim minorities.20 320

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Even with the growth of literature on fiqh al-aqalliyya¯ t on both sides (the internal Muslim legal production and the observing academic investigation), it cannot be argued that the subject of fiqh al-aqalliyya¯ t has taken its final shape. On the Muslim side, jurists and discourse participants argue for the need of transforming the fiqh al-aqalliyya¯ t discourse to fiqh al-­muwat․ana and fiqh al-taʿayush ( fiqh of citizenship and fiqh of co-existence). Attempts are still being made to provide a comprehensive legal theoretical frame for a transformation in Islamic legal thinking that cope with the challenges facing 21st-century Muslims. Also studies are being conducted to see if the space created by fiqh al-aqalliyya¯ t may be further utilized for re-­thinking the role of maqasid, i.e. the objectives of Shariʿah21 in current debates. On the other side, academics and researchers still investigate the impact that this discourse might have on the ongoing changes in the Muslim mind and space. Eyadat, for example, explores to what extent a discourse on fiqh al-aqalliyya¯ t may have an impact on the political scene of the Arab Spring.22

Notes 1 To review the legal historical debate on Muslims in minority situations, see Khaled Abou El Fadl, ‘Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the ­Second/Eighth to the Eleventh/Seventeenth Centuries’, Journal of Islamic Law and Society 1(2) (1994): 143–53. 2 Jocelyne Cesari, When Islam and Democracy Meet: Muslims in Europe and in the United States (­Basingstoke and New York: Palgrave Macmillan, 2004), 21; Muʿtaz al-Khatib, ‘Min al-Ightirab ila Afaq al-Musharaka, al-Muslimun fi al-Gharb’, Al-Manar al-Jadid 15 (Cairo: Dar al-Manar al-Jadid in co-operation with Islamic Assembly of North America, 2001), 49. 3 Dr Sayyid M. Darsh is an Azhar graduate who was the imam at the Regents Park Mosque in ­L ondon for many years. He was also the chairman of the UK Shariʿah Council. 4 See, for example, Khalid Muhammad ʿAbd al-Qadir, Fiqh al-Aqalliyyat al-Muslima (Lebanon: Dar alIman, 1997); Khalil al-Moumni, Al-Fatawa al-Badriyya: Majmuʿah min al-Asʾila fi Mawadiʿ Mukhtalifa wa-Mutanawwiʿa fi al-ʿIbadat wa-l-Muʿamalat wa-l-Akhlaq wa Shuʾun al-Usra waradat ʿala Masjid Badr bi-Wajda wa-Masjid al-Nasr bi-Rotterdam- Hulanda (Casablanca: Dar al-Rashad al-­Hadithiyya, 1998); ʿAbd al-Wadud Shalabi, Ijabat Hasima ila al-Ukht al-Firnsiyya al-Muslima, 2nd edn (Cairo: Mu’assasat Al-Khalij al-ʿArabi, 1989); Muhammad Rassoul, Der Deutsche Mufti (Cologne: Islamische Bibiliotheck, 1997); Tabatabaʾi al-Hakim, Risala Abawiyya wa-masaʾil fiqhiyya tahammu al-Mughtaribin (Parental Advice and Jurisprudence Questions of Significance to the Expatriates), prepared and introduced by Muhammad Jawwad al-Tahiri (Beirut: Muʿassasat al-Murshid, 1994). 5 Yusuf al-Qaradawi, Fi Fiqh al-Aqalliyyat al-Muslima, Hayat al-Muslimin Wasat al-Mujtamaʿat al-Ukhra (Cairo: Dar al-Shuruq, 2001). 6 Ibid., 30ff. 7 Taha Jabir ʿAlawani, Fi Fiqh al-Aqalliyyat al-Muslima, Series of Islamic Enlightenment 52 (Cairo: Nahdat Misr, 2000), 5–6; Taha Jabir ʿAlawani, Towards a Fiqh for Minorities, Some Basic Reflections (Herndon, VA: International Institute of Islamic Thought, 2003). 8 ʿAlawani, Fi Fiqh, 11–12. 9 ʿAbd al-Majid al-Najjar, a Tunisian, has been associated with Zaytuna University since 1975. He is known for his support of the Islamic Movement of Tunisia. He has various publications on the question of Islamic Renewal. He now lives in France. He was a prominent figure in the formation of the ECFR and a member of the editorial committee of ECFR Review. 10 See ʿAbd al-Majid al-Najjar, ‘Nahwa Manha Usuli li-Fiqh al-Aqalliyyat’, Scientific Review of the European Council for Fatwa and Research 3 (n.d.): 43–65. See also: Al-Najjar, ‘Maʾlat al-Afʿal wa-­ Atharuha fi Fiqh al-Aqalliyyat’, Scientific Review of the European Council for Fatwa and Research 4 (n.d.): 149ff. 11 Salah Sultan is an Egyptian scholar who used to live in the United States. He was a faculty member of Cairo University, Egypt, and a founding member of the Islamic American University. He is a member of ECFR and Fiqh Council of North America. 12 Salah Sultan, ‘Al-Dawabit al-Manhajiyya li-Fiqh al-Aqalliyyat’, Scientific Review of the European Council for Fatwa and Research (available online: http://www.e-cfr.org/ar/bo/18.doc). 321

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13 Kathleen Moore, The Unfamiliar Abode: Islamic Law in the United States and Britain (Oxford: Oxford University Press, 2011), 4-ff. 14 Yvonne Yazbeck Haddad, Jane I. Smith and John L. Esposito, Religion and Immigration: Christian, Jewish and Muslim Experience in the United States (Walnut Creek, CA: Rowman Altamira, 2003); Yvonne Yazbeck Haddad, Muslims in the West: From Sojourners to Citizens (New York: Oxford ­University Press, 2002). 15 P. S. van Koningsveld, ‘The Significance of Fatwas for Muslims in Europe: Some Suggestions for Future Research’, Nederlandsch Theologisch Tijdschrift 60(3) (2006): 208–21. 16 Mathias Rohe, Muslim Minorities and the Law in Europe: Chances and Challenges (New Delhi: Global Media Publications, 2007). 17 Andrew F. March, ‘Sources of Moral Obligation to non-Muslims in the “Jurisprudence of ­Muslim Minorities” (Fiqh al-Aqalliyyat) Discourse’, Islamic Law and Society 16 (2009): 34–94; see also ­A ndrew F. March, ‘Liberal Citizenship and the Search for an Overlapping Consensus: The Case of Muslim Minorities’, Philosophy and Public Affairs 34(4) (2006): 373–421. 18 H. A. Hellyer, Muslims of Europe: The ‘Other’ Europeans (Edinburgh: Edinburgh University Press, 2009). 19 See, for example, Alexandre Caeiro, ‘The Social Construction of Shari`ah: Bank Interest, Home Purchase and Islamic Norms in the West’, Die Welt des Islams 44(3) (2004): 351–75; Alexandre Caeiro, ‘The Making of the Fatwa: The Production of Islamic Expertise in Europe’, Archives de sciences sociales des religions 155 (October): 81–100; Alexandre Caeiro, ‘The Power of European Fatwas: The Minority Fiqh Project and the Making of an Islamic Counter-public’, International Journal of Middle East Studies 42(3): 435–49. 20 Said Fares Hassan, Fiqh of Minorities, History, Development and Progress (New York: Palgrave ­M acmillan, 2013). 21 Tauseef Ahmad Parray, ‘The Legal Methodology of Fiqh al-Aqalliyya¯ t and its Critics: An Analytical Study’, Journal of Muslim Minority Affairs 32(1) (March 2012): 88–107; Zainab Alwani, ‘Maqa¯․sid Qurʾa¯ niyya: A Methodology on Evaluating Modern Challenges and Fiqh al-Aqalliyya¯ t’, The Muslim World 104(4) (October 2014): 465–87. 22 Zaid M. Eyadat, ‘Fiqh al-Aqalliyya¯ t and the Arab Spring: Modern Islamic Theorizing’, Philosophy and Social Criticism 39(8) (2013): 733–53.

Selected bibliography and further reading ʿAbd al-Qadir, Khalid Muhammad. Fiqh al-Aqalliyyat al-Muslima (Beirut: Dar al-Iman, 1997). Abou El Fadl, Khaled. ‘Striking a Balance: Islamic Legal Discourse on Muslim Minorities’. In Muslims on the Americanization Path, ed. Yvonne Yazbeck Haddad and John Esposito (Oxford: Oxford University Press, 2000), 47–64. Abou El Fadl, Khaled. ‘Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim ­M inorities from the Second/Eighth to the Eleventh/Seventeenth Centuries’. Journal of Islamic Law and Society 1(2) (1994): 141–86. Abou El Fadl, Khaled. ‘Legal Debates on Muslim Minorities: Between Rejection and Accommodation’. Journal of Religious Ethics 22(1) (Spring 1994): 127–62. ʿAlwani, Taha Jabir al-. Towards a Fiqh for Minorities: Some Basic Reflections. Islamic Methodology Series 17 (Herndon, VA: International Institute for Islamic Thought; Damascus: Dar al-Fikr, 2003). Alwani, Zainab. ‘Maqa¯․sid Qurʾa¯ niyya: A Methodology on Evaluating Modern Challenges and fiqh al-Aqalliyya¯ t’. The Muslim World 104(4) (October 2014): 465–87. Caeiro, Alexandre. ‘The Social Construction of Shari`ah: Bank Interest, Home Purchase and Islamic Norms in the West’. Die Welt des Islams 44(3) (2004): 351–75. Cesari, Jocelyne. When Islam and Democracy Meet, Muslims in Europe and in the United States (Basingstoke and New York: Palgrave Macmillan, 2004). Dawish, Ahmad b. ʿAbd al-Razzaq al-, ed. Fatawa al-Lajna al-Daʾima li-l-Buhuth al-ʿIlmiyya wa-l-Iftaʾ (Riyadh: Dar al-ʿAsima, 1998). Delorenzo, Yusuf Talal. ‘The Fiqh Councilor in North America’. In Muslims on the Americanization Path, ed. Yvonne Yazbeck Haddad and John Esposito (Oxford: Oxford University Press, 2000), 65–86. European Council for Fatwa and Research. Qararat wa-Fatawa al-Majlis al-ʾUrubi li-l-Iftaʾ wa-l-Buhuth (Cairo: Dar al-Tawziʿ wa-l-Nashr al-Islamiyya, 2002). 322

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Eyadat, Zaid M. ‘Fiqh al-Aqalliyya¯ t and the Arab Spring: Modern Islamic Theorizing’. Philosophy and Social Criticism 39(8) (2013): 733–53. Gräf, Bettina and Jakob Skovgaard-Petersen (eds). Global Mufti: The Phenomenon of Yusuf al-Qaradawi (New York: Columbia University Press, 2009). Hassan, Said Fares. Fiqh of Minorities: History, Development and Progress (New York: Palgrave Macmillan, 2013). Hellyer, H. A. Muslims of Europe: The‘Other’ Europeans (Edinburgh: Edinburgh University Press, 2009). Ibn Bayya, ʿAbdullah. Sinaʿat al-Fatwa wa-Fiqh al-Aqalliyyat ( Jeddah, Saudi Arabia: Dar al-Minhaj li-lNashr wa-l-Tawziʿ, 2007). Judayʿ, ʿAbdullah b. Yusuf al-. Taqsim al-Maʿmura fi al-Fiqh al-Islami wa-Atharuh fi al-Waqiʿ (Dublin: European Council for Fatwa and Research, 2007). March, Andrew F. ‘Liberal Citizenship and the Search for an Overlapping Consensus: The Case of Muslim Minorities’. Philosophy and Public Affairs 34(4) (2006): 373–421. March, Andrew F. ‘Sources of Moral Obligation to non-Muslims in the ‘Jurisprudence of Muslim Minorities’ (Fiqh al-Aqalliyyat) Discourse’. Islamic Law and Society 16 (2009): 34–94. Masud, Muhammad Khalid. ‘Islamic Law and Muslim Minorities’. ISIM Newsletter 11 (December, 2002): 17. Moore, Kathleen. The Unfamiliar Abode: Islamic Law in the United States and Britain (Oxford: Oxford University Press, 2010). Parray, Tauseef Ahmad. ‘The Legal Methodology of Fiqh al-Aqalliyya¯ t and its Critics: An Analytical Study’. Journal of Muslim Minority Affairs 32(1) (March 2012): 88–107. Qaradawi, Yusuf al-. Fi Fiqh al-Aqalliyyat al-Muslima (Cairo: Dar al-Shuruq. 2001). Rohe, Mathias. Muslim Minorities and the Law in Europe: Chances and Challenges (India: Global Publication, 2007). Rohe, Mathias. ‘The Formation of a European Shariʿah’. In Muslims in Europe: From the Margin to the Center, ed. Jamal Malik (Munster: LIT Verlag, 2004), 161–184. Sawi, Salah al-. Mawsuʿat Fatawa al-Mughtaribin (Cairo: Al-Faruq al-Haditha li-l-T ․ ibaʿa wa-l-Nashr, 2009). Shawarbi, Muhammad Yusuf al-. Al-Islam fi Amrika (Cairo: Lajnat al-Bayan Al-ʿArabi, 1960). Sultan, Salah. Al-Dawabit al-Manhajiyya li-l-Ijtihad fi Fiqh al-Aqalliyyat al-Muslima (n.p., 2007). Sultan, Salah. Al-Muwatana bayna al-Taʾsil al-Sharʿi wa-Taʿaddud al-Walaʾat al-Diniyya wa-l-T ․ aʾiffiyya wal-ʿIrqiyya (n.p., n.d.).

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19 Family law and succession Irene Schneider

Introduction The terms ‘family law’, ‘succession’ and/or ‘personal status law’ are modern Western categories adopted by contemporary Muslim states in the process of modernizing Shariʿah law and codifying it. Islamic pre-modern law differentiates between matters of ritual and worship (ʿiba¯ da¯ t) versus relations among human beings (muʿa¯ mala¯ t) of which marriage and succession fall, broadly speaking but not exclusively, under the second category.1 The pre-modern fiqh-literature deals with these matters under the headings of nika¯․h (marriage), ․tala¯ q (repudiation) and fara¯ ʾid ․ (lit. allotted portions: succession).2 Family law and succession are extensively dealt with in the Qurʾan and Sunnah. Sexuality outside marriage and legal possession, i.e. sexual relation of a man with his female slave, is forbidden and men and women are equally punished for unlawful sexual relation (zina¯ ) (24:2–4),3 which is God’s right.4 Also mentioned in the Qurʾan are a woman’s right to dower (s․ada¯ q/mahr) (4:4), the man’s prerogative to marry up to four wives (4:3), man as head of the family (4:34), as well as forms of marriage separation (2:226–32; 65:1–5) and the waiting period (ʿidda) (2:228) a woman has to observe after the end of a marriage. Regulations in the Qurʾan can be interpreted as correcting the pre-­ Islamic custom: dower was now given to the woman herself and not to her father, a male’s right to marriage was restricted to four women and levirate marriage was forbidden (4:23), as was the practice of killing new-born baby girls (81:8–9).5 On the other hand, traditions seem to imply that women had more space of movement and sexual freedom in pre-Islamic time, including the existence of different forms of marriage, which seem to have been matrilocal and matrilineal.6 Khadija, the first wife of the Prophet and a rich and self-confident merchant, who hired Muhammad and offered him marriage, is often named in this respect. However, the scarcity and inconsistency of the sources of the first and second centuries do not warrant far-reaching conclusions. With all due caution, it may be said that verses and regulations reflecting gender equality, e.g. zina¯ – punishment for both men and women in the Qurʾan (24:2–4), stand beside verses which reflect gender hierarchy, such as 4:34. A variety of different types of marriages (obviously including matrilocal and matrilineal forms) in pre-Islamic time was replaced by a strict patriarchal, patrilineal and patrilocal form of marriage. The pre-Islamic legal practices were thus corrected and fixed by the Qurʾan. They can be seen as a reflection of the historical situation of seventh-century Arabia. 324

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In the centuries following, these Qurʾanic verses (as well as the Sunnah reports) were interpreted by the jurists, who held the monopoly of exegesis.7 Since the literary period of Islamic law, which started in the middle of the eighth century,8 authoritative fiqh texts were produced by the four Sunni schools and the main Shiʿi school of law, the Imamiyya, and jurists deduced a broad variety of detailed rulings and opinions justifying the classification of Islamic law as ‘jurists’ law’.9 This inherent pluralism of Islamic law is expressed in what the jurists call their ‘difference’ (of opinions) (ikhtila¯ f ) which is institutionally represented in the mentioned schools of law.10 Obviously, the well-known categorization of Islamic law as a ‘holy’ law, in the sense of eternal and therefore immutable, is not in accordance with the wide range and varieties (‘difference’) of opinions deduced from the holy law that are all equally accepted in fiqh. The ‘differences’ may seem small and hairsplitting but from the believers’ perspective they could matter: As traditional doctrine allows a Muslim to change his or her school of law at will, a girl brought up according to the Shafiʿi law school, which did not allow her to marry without a marriage guardian, could claim to have adopted the Hanafi system, which would allow her, having reached maturity, to conclude her own marriage contract.11 Fascinating questions arise as to how these rulings were actually applied in the courts in pre-modern times by the (male) judges.12 How did women deal with it? Did they know about the competing rulings of the schools of law? Considering their family and social as well as legal backdrop, could they just turn to a Maliki judge as in the above-mentioned case from 19th-century British India, which Coulson quotes? There is a vast desideratum for research on legal practices of courts, as well as on actors, due to the comparatively scarcity of sources available on the legal practice in pre-modern times. As the focus of this chapter is on the normative literature, the legal practice cannot be dealt with here. Despite the great variety of rulings and different nuances in the regulations of gender roles in the schools of law, the patriarchal family structure remained, as mentioned above, the basic idea of family and gender relations until the modern age. In what follows, special attention is given to the differences between the schools of law, since a process of ‘picking and choosing’ out of the different opinions of the law schools13 can be observed in the making of modern legislation and codification. The first part of the chapter will deal with the regulation of sexual relations, the second part with family law chronologically from betrothal and marriage to separation, including the legal effects of marriage such as parentage. The third part covers the regulations regarding succession and, finally, a summary will be presented at the end.

1  Sexuality: male, female, third gender The classical Islamic fiqh literature is predominantly based on the concept of two genders (male and female) and their rights and duties. Both have a right to sexual satisfaction, which, in contrast to Christian marriages, is not exclusively connected to procreative purposes but also to enjoyment of sex as such.14 Addressing men, in 2:223, women are referred to as a ‘place of sowing your seed’, whereas in 2:187, men and women are more mutually seen as a ‘garment for each other’.15 In the male-centred terminology of fiqh-literature, a woman becomes permissible (h ․ala¯ l) for a man in two ways: by marriage or possession, i.e. possession of a slave woman (milk al-yamı¯ n).16 The sexual act is identified with penetration (dukhu¯l) (anal or vaginal), the active part being the man/penetrator and the passive part the woman/­penetrated. Besides the active–passive dichotomy of male–rational and female–emotional which was well known to the Muslim jurists, Muslim jurists argued on the basis of the Prophet’s saying 325

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that women have weaker rationality, that women are overpowered quickly by emotions and have an inclination to disturb normal life.17 As sexuality is only permitted in a marriage, free women are expected to be virgins (bikr) before their first marriage and are classified as deflowered (thayyib) when being divorced or widowed. Being deflowered without marriage would mean a free woman would be a za¯ niya, a woman having committed unlawful intercourse (zina¯ ). Preserving virginity before marriage, observing the waiting period and respecting the gender segregation are measures that help to establish and secure the patrilineal lineage (nasab), which is seen as crucial in a patriarchal society. Gender segregation has to be upheld generally between opposite sexes as soon as they reach maturity. The usual exceptions are the mah ․a¯ rim (plural of mah․ram), the ‘non-marriageable persons’, i.e. the nearest relatives (see 4:23) with whom mingling is permissible. The ambiguous meaning of this concept between the sacred and the profane can be recognized when one semantically considers the root of this word, ․h-r-m, meaning ‘holy’, ‘forbidden’. Same-sex relations are legally prohibited. Lagrange has pointed out the impossibility of subsuming the discussion on same-sex relations in pre-modern fiqh-literature with the ­European/Western concept of homosexuality. The classical Arabic term liwa¯․t refers to active anal intercourse.18 Same-sex intercourse is equated to unlawful heterosexual intercourse by most schools of law. Interestingly, some scholars among the Shafiʿis and Hanbalis hold that the death penalty by stoning applies only to the active partner.19 Legal literature also deals with a ‘third gender’, the khuntha¯ (pl. khina¯ th). The term can variously be translated as effeminate, transvestite, transsexual or hermaphrodite, referring to failings to concur with the prevailing normative standards of masculinity. However, it has been identified as a recognized ‘third gender’ in Oman by recent anthropological research.20

2  Marriage and marriage dissolution 2.1  Marriage (nika¯ h., zawa¯ j) The main type of marriage is permanent marriage based on a civil contract conceptualized for life but with the possibility of divorce, which is different from that in pre-modern Christianity. Temporary marriage (mutʿa) is only accepted in Shiʿi law, where it is justified with reference to 4:28. Coulson argues that mutʿa is not simply a nika¯․h with a time limit as an accompanying condition, but a distinct and individual legal institution more or less falling under the heading of hire or lease (ija¯ ra).21 In practice, the Sunnis have the same arrangement, because those who wish to marry only temporarily can circumvent the prohibition of mutʿa simply by agreeing on living as husband and wife only for a certain limited period of time without stipulating it in the marriage contract.22 Mutʿa is contracted for a specific period and in consideration of a specific remuneration/lease (ujra) payable to the woman. The normal impediments to a nika¯․h (see below) apply equally but there is no limit to the number of women with whom a man may conclude mutʿa contracts, with no right of maintenance for the woman and no corresponding duty of obedience falling upon her, as well as no rights of mutual inheritance between the partners. There can be no divorce. As it is possible to stipulate a time period of 99 years, a mutʿa marriage can be turned into a lifelong marriage contract. The prelude to the regular marriage contract is the betrothal (khit․ba), the promise of marriage, which does not in itself constitute a marriage contract and therefore is not binding on either party. The jurists disagree on how much the man may see of the woman’s body at 326

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the betrothal. Malik allowed the face and hands to be seen only, whereas others allowed seeing the whole body with the exception of the private parts.23 Marriage in all its aspects is dealt with extensively in the Qurʾan and therefore can be regarded as an institution rooted in the divine law.24 The main features of marriage which have consequences in modern times are: 1) 2) 3) 4) 5) 6) 7)

marriage as a civil contract and not, as in pre-modern church law, a sacrament; insertion of stipulations into the contract is possible; requirement of the walı¯ , the bride’s guardian in signing the contract; impediments to marriage; general legal effects of marriage; financial effects of marriage;25 offspring: parentage, custody and guardianship.

2.1.1  Contract (ʿaqd) In contrast to Christian law, a marriage contract 26 is not sacrament but a civil contract and ‘at once a legal, religious, economic and symbolic transaction’.27 The jurists compare it in some perspectives to the contract of sale,28 and some jurists such as the Shiʿi al-Hilli (d. 726/1325) define it as a contract that gives the husband ownership (tamlı¯ k) over intercourse.29 As a contract, marriage shows traits that indicate a similarity with a sale contract. Accordingly, the bridegroom concludes the contract with the legal guardian (walı¯ ) of the bride, i.e. the nearest male relative, normally the father or grandfather. However, the fact that the dower is not paid to the walı¯ but to the bride herself makes marriage a distinct contract. It need not be written and must, like a sale or any other contract, be concluded through the two pillars (arka¯ n) of offer (al-ı¯ ja¯ b) and acceptance (al-qabu¯l). This is the only legally relevant act in concluding marriage. However, privacy (khalwa) and consummation (dukhu¯l) are relevant for legal, mainly financial consequences in case the marriage is dissolved. 30 Based on a saying of the Prophet that there can be no marriage without witnesses, the jurists except the Shiʿis agree that witnesses are a condition of the contract.31 ‘Secret marriage’ is not accepted.32 The guardians can conclude marriage contracts between minor(s), 33 in which case consummation of the marriage is expected to take place after the minor(s) reach puberty. This would, according to 21st-century standards, amount to a child marriage and allow girls below nine lunar years and boys below 12 lunar years, the considered minimum ages for sexual maturity, to get married. ʿAʾisha, the beloved wife of the Prophet, is said to have been married off to the Prophet at the age of six or seven, and the marriage consummated when she was nine years old.34 A minor boy coming of age can use his right to repudiation (see below). A girl reaching puberty can, according to some jurists, claim the dissolution of the contract in court according to what is called ‘vote on puberty’ (khiya¯ r al-bulu¯gh). However, the Hanafis, Hanbalis and Imamiyya do not grant her this right if the father or grandfather have given her in marriage.35 Today, in most Muslim states the marriage age has been raised significantly or it has been even been adapted to international human rights regulations, according to which every person below 18 is a child. It is possible to stipulate in the contract that, for example, the woman will have the right to judicial divorce if the husband takes a second wife or that the wife is granted certain rights, such as to work or leave the house. The husband may grant the wife the right of ․tala¯ q ­al-tafwı¯․d, the so-called ‘delegated ․tala¯ q’. In this case, the husband allows the woman to free 327

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herself of the marital bond when a certain event occurs. These stipulations help women but basically depend on the groom’s approval. Generally, marriage contracts are classified into valid (s․ah․¯ı ․h), irregular ( fa¯ sid) and void (ba¯․til), the consequences of which are discussed in detail by the jurists. Only a ․sah․¯ı ․h marriage is a valid and fully effective union. 36 Another important aspect of marriage is kafa¯ ʾa, meaning that man and woman have to be of equal matches with regard to lineage, piety, wealth and profession. It is understood as a right to be exercised by the wife and her guardian. There is consent that the guardian cannot deny a marriage of his ward if it is a marriage based on kafa¯ ʾa.37 The basis for this consent is a saying of the Prophet that a woman is married for four things: her wealth, her lineage, her beauty and her piety, but later jurists also discussed other aspects. Malik permitted marriages between the Arabs and the clients (mawa¯ lı¯ ), whereas Abu Hanifa ruled that a Qurayshi woman can only marry a Qurayshi man. Certain professions were despised and a woman had the right to refuse marriage to a man of such professions.38 The general and unanimous position of all schools of law is that a Muslim man has the right to contract up to four marriages and that he does not require the wife’s permission to do so. This right is not given to women. Today, many Muslim countries impose legal restrictions on polygyny, e.g. by imposing court hearings, but only in Tunisia and Turkey is polygyny legally forbidden.39

2.1.2  Marriage guardian (walı¯ al-nika¯ h.) The majority of jurists agree that a woman needs a marriage guardian. This is based on a tradition by ʿAʾisha, according to which no marriage is allowed for the woman without a walı¯ .40 The Hanafis, however, allow a woman having reached puberty to contract her own marriage. Ibn Rushd states that the jurists disagree whether the marriage guardian is a condition of the validity of the contract. He argues that the verses and traditions quoted by those who say it is a condition as well as by those who say it is not a condition are subject to interpretation.41 The walı¯ is the nearest male relative, normally the father or grandfather. He has to be Muslim, of male gender and mature. A woman cannot be a walı¯ .42 Full brothers and sons can be a woman’s marriage guardian, but Shafiʿi voted against the guardianship of a son for his mother.43 Failing male relatives, the judge himself has to give her in marriage. Between the jurists of the formative era (seventh to ninth centuries) and the classical age (tenth to 12th centuries), Spectorsky finds a discernible tendency on the part of Hanafi and Maliki jurists to further restrict a woman’s capacity to conclude her own contract, so that their positions on this question become virtually indistinguishable from those of the Shafiʿis and Hanbalis.44 With regard to consent, the jurists agree that the consent of a major (ba¯ ligh)45 deflowered (thayyib) woman has to be taken into account, whereas there is discussion about the major virgin’s (bikr) and the minor deflowered woman’s consent. In particular, the virgin is considered as being shy and thus her silence is taken as consent, whereas the deflowered woman is seen as able to speak out for herself, based on the Prophet’s saying: ‘The deflowered woman has a greater right over herself than her guardian (walı¯ ), but the virgin is to be asked about herself and her silence is her permission’.46 Jurists agree that a father can force his minor virgin daughter into marriage but he cannot force a divorced major daughter – again with some exceptions. Ibn Rushd sums up that there is disagreement about the underlying cause of forced consent, whether it is virginity or minority.47 Marriage by proxy is possible and a person of full legal capacity may authorize another person to conduct the marriage on his or her behalf. 328

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2.1.3  Marriage impediments (mawa¯ niʿ) Marriage impediments are either permanent or temporary.48 Permanent prohibitions which are generally agreed upon are descent, relationship by marriage and fosterage, whereas there is disagreement on zina¯ and liʿa¯ n (illegitimate sexual intercourse and imprecation, see below).49 The ‘non-marriageable persons’, i.e. the nearest female relatives, are named in the Qurʾan (4:25–9). The general rule is that any prohibited degree on grounds of kindred is also prohibited on grounds of fosterage (4:23). It is permitted to marry one’s first cousin and the half-brother’s half-sister (from another marriage), but it is forbidden to marry one’s stepmother. Temporary prohibition is based on existing marriage and ʿidda (waiting period, see below), irrevocable divorce or disbelief (kufr) and status of slavery, because an unbeliever can become Muslim and a slave can be manumitted.50 A man is not allowed to be married to more than four wives at the same time and not to two sisters at the same time. A free woman can marry a male slave but there is disagreement about the marriage of a freeman to a female slave.51 The Sunni and Shiʿi jurists are unanimous that no Muslim woman can marry a non-Muslim man, even among the people of the book, i.e. Christians or Jews (2:220).52 The rationale behind this ruling is the patriarchal concept of lineage, which would mean that children born to such a marriage would drop out of Islam and follow their father’s religion.

2.1.4  Rights (h.uqu¯q) From every marriage rights and duties of the spouses arise, especially the permission of sexual relation and the legitimacy of the offspring resulting from this sexual relation.53 Both husband and wife have a right to sexual intercourse. However, the husband’s sexual appetite is supposed to be stronger and he is granted the right to have intercourse whenever he wants while respecting the religious prescription of purity, which prohibits sex during menstruation, in childbed and during fasting days in Ramadan. The woman has a right to sex, too, but, according to some jurists, only every fourth day, so as to ensure that the husband can evenly visit all his wives. This is because the woman has a right to her husband’s justice and equal treatment of her and the other wives.54 A husband’s right, which is not unanimously agreed upon, is the wife’s nursing and taking care of the household.55 The financial rights of the wife will be dealt with below (see section 2.1.5 ‘Dower and maintenance (mahr/nafaqa)’). The husband has not only a right to sexual intercourse, but also, more broadly, to obedience. In pre-modern fiqh, 4:34 has traditionally been interpreted as the husband’s natural leading position in the family above the wives, even including the right to reprimand and beat them. The husband can choose the place of residence and can restrict the wife’s leaving this maternal home. If the woman behaves as a recalcitrant, disobedient woman (na¯ shiza), she will lose her right to maintenance.

2.1.5  Dower and maintenance (mahr/nafaqa) Dower and maintenance are the financial effects of a marriage contract. There is no matrimonial community of goods and separation of property is one of the main characteristics of the pre-modern Islamic marriages well into modern times. It gives women a certain independence in marriage as well as after marriage. However, the husband’s obligation to pay dower56 is one of the conditions of the validity of the marriage.57 This and his obligation to pay maintenance (nafaqa) during the whole marital life have been maintained in modern personal status laws. There is no maximum limit but the minimum limit of dower is disputed.58 329

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A woman has the right not to engage in sexual relation before her dower is paid; it ‘becomes due by consummation (dukhu¯l) or death’.59 Dower is inalienable and taken for granted even if it is not expressly stated in the contract, in which case the dower of the equal (mahr al-mithl) applies. According to Sunnis and Shiʿis alike, the dower may consist of anything that can be valued in money, is useful and is ritually clean.60 Dower can be prompt (mahr muʿajjal) as well as deferred (mahr muʾajjal). The latter seems to have had great practical relevance. The dower becomes payable on the date agreed upon, otherwise on divorce or death. If the marriage is dissolved by ․tala¯ q before the first marital sex, the woman has the right to half of the dower, according to 2:237, if she did not initiate the break-up of the marriage.61 Maintenance (nafaqa) is the second important financial claim and the lawful right of the obedient wife under a valid marriage contract.62 It encompasses food, clothing, housing, toilet necessities, medicine, doctor’s fees, bathing and servants, if the wife is of a social position which does not permit her to dispense with such services, or when she is sick. If the husband does not pay, she can go to court and file a claim for judicial divorce.63 According to Ibn Rushd, the jurists debate whether maintenance is a counter-value for sexual utilization, or a compensation for the fact that she is confined (mah ․bu¯sa, lit. a prisoner64) as in the case of a 65 sick or an absent husband. The maintenance shall be due to the wife if she places herself in the husband’s power, including sexual intercourse, and she loses maintenance when she denies these rights to her husband and is recalcitrant (na¯ shiza).66 The majority of Islamic jurists, Sunnis and Shiʿis, rule that there shall be no maintenance for the wife who goes out to work without the permission of her husband.

2.1.6  Legal effects with regard to the offspring A central concept in this context is nasab, the legal and legitimate lineage. It is of the utmost importance to the child to be born in wedlock and thus with a nasab connecting him or her with his or her father. Marriage establishes the husband’s parentage of the offspring unless there is indisputable evidence to the contrary. It creates mutual inheritance rights (see below).67 No paternity can be established for an illegitimate offspring. The minimum term of pregnancy is reckoned to be six lunar months for legitimate lineage to be established.68 A  child born after separation shall be attributed to the husband if the interval between separation and birth is one lunar year or less. However, the Malikis, especially, recognize gestation periods up to four or five years,69 based on the concept of the ‘sleeping foetus’ (­al-raqı¯ d). According to this perception, the embryo can stop developing in the mother’s womb for a certain amount of time, thus stretching the time of pregnancy and helping to create a legal nasab for the child born considerably after the death of the husband or the divorce of the spouses.70 The category of walad al-zina¯ classifies a child born out of wedlock not only as illegal, but a product of a sin and a crime against God. Still today these children are stigmatized. There is no adoption in Islam but confirmation of paternity by a child’s father is possible and the doctrine of acknowledgement (iqra¯ r) can be used to establish legitimacy, but only when real paternity is plausible.71 The full legal rights and obligations as well as the full legal representation are with guardianship (wila¯ ya) and rest in the hand of the father, including guardianship of the child’s assets and marriage. Furthermore, the child has a right to upbringing and ․had․a¯ na¯ is the mother’s right to personal custody, such as caring for the bodily requirements of the child, feeding and clothing the child, etc. Law schools differ with regard to the age of children who fall under ․had․a¯ na. It is up to around seven years for boys and for girls until they reach puberty. 330

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All schools, Sunni and Shiʿis alike, hold that the mother, whether she is living with the husband or separated, has the claim to the custody of her infant.72 However, if she remarries, she loses this right. After the mother, according to the Hanafis, the right is given to maternal relatives. The mother should foster the child if possible for two years (2:233). Generally speaking, men are responsible for the maintenance of the family. Islamic jurists and modern Arab personal status laws are unanimous that maintenance is a right of minors who possess no property, against their father, and a right of the parents against their children who have means to provide it. Taking care of a foundling is a religious duty and the baby’s finder has the sole right to its guardianship unless he or she is unfit or a non-Muslim and a Muslim disputes that right. A foundling is considered to be a Muslim if found in a Muslim locality, or a Christian or a Jew if found by such a person in his own locality.73

2.2  Forms of marriage dissolution The right to separation is again a male prerogative and women only have restricted access to it.74 Generally, marriage may be dissolved by: 1) the husband in three ways: repudiation (t․ala¯ q), injurious assimilation (z ․iha¯ r) or vow of continence (ı¯ la¯ ʾ); 2) the spouses, either by mutual agreement (khulʿ or muba¯ raʾa) or imprecation (liʿa¯ n); 3) judicial order of separation in a suit filed by the husband or the wife on various grounds ( faskh, khiya¯ r).

2.2.1  Repudiation (t ala¯q) ˙ There is no dispute among the jurists as to the basic right of a husband to unilaterally repudiate his wife at will without any formalities.75 Repudiation may be effected orally or in writing, witnesses are not necessary for its validity and no reasons have to be given. T ․ ala¯ q pronounced in delirium or by a lunatic is invalid; ․tala¯ q of an intoxicated man is disputed and, in the case of culpable intoxication, it is regarded as valid by the majority. T ․ ala¯ q pronounced under pressure is valid, according to the Hanafis, but not according to the Malikis, Shafiʿis and Hanbalis.76 The Shiʿis, however, insist that the pronouncement must be made orally, the precise term ․tala¯ q or some form thereof must be used in the presence of two witnesses and there must be proof of a definitive intention to repudiate. The repudiation is either revocable (rajʿı¯ ) or definite (ba¯ ʾin), depending on the way it is formulated. If the ‘approved’ (see below) expression is used, it is revocable, otherwise (and also if the repudiation is pronounced before consummation of the marriage) it is definite. A revocable repudiation does not dissolve the conjugal community and can be withdrawn during ʿidda (see section 2.2.2 ‘Waiting period (ʿidda)’ below). A definite repudiation dissolves the conjugal community. After a husband has repudiated his wife three times, the former husband and wife can only marry again after the wife has been married to another husband. The ․tala¯ q is classified as either ‘approved’ (t․ala¯ q al-sunnah) or ‘disapproved’ (t․ala¯ q al-bidʿa, lit. innovation).77 T ․ ala¯ q al-sunnah may take the form either of a single repudiation, which is revocable by the husband until the expiry of the ʿidda, or of one repudiation followed by two further confirmatory repudiations in successive months. These repudiations must ideally be made during a time of ‘purity’ (t․uhr), i.e. when the woman is not menstruating and in which 331

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she has had no sexual relations with her husband. T ․ ala¯ q al-bidʿa is the threefold utterance of repudiation in one statement or one period of purity with ‘the advantage, for the husband at least, of simplicity and finality’.78 The triple repudiation has become the normal form and although it is considered a (bad) innovation (bidʿa), it is valid.79 The Imamiyya insists upon strict adherence to the ‘approved’ forms under pain of nullity and thus manifests a desire to confine the husband’s exercise of his power to repudiate within rigidly defined limits.80 As mentioned above, ․tala¯ q can be delegated (t․ala¯ q at-tafwı¯․d) taking the form of a stipulation in the marriage contract. There is also conditional ․tala¯ q (taʿlı¯q al-t․ala¯ q), which is pronounced after the conclusion of the marriage and enforced when the condition occurs.81 T ․ ala¯ q is often translated as ‘divorce’. But as in the case of other legal terms, too, it makes sense to use the Arab terms to differentiate between the different types of marriage dissolutions. Translating ․t ala¯ q as divorce evokes the belief that it is compatible with modern forms of gender-equal judicial divorce, which it is not. For example, the M ­ oroccan legislator used the classical term ․t ala¯ q in art. 78 of the Moroccan Family Law in 2004 and defined it as ‘the dissolution of the bonds of matrimony exercised by the husband and wife, each according to his or her respective conditions’.82 This is an interesting (re)interpretation or cultural ‘translation’ of the classical form of repudiation as the man’s clear prerogative, which now appears to become a gender indifferent concept (‘exercised by the husband and the wife’) but still is not an equal option for man and woman (for translation, see Schneider 83).

2.2.2  Waiting period (ʿidda) The revocable repudiation does not dissolve marriage until the waiting period is expired.84 It lasts three menstrual periods or, in the case of pregnancy, until delivery and is defined as a period of abstinence, or a specified term during which the woman is neither neatly married nor really divorced. The purpose behind ʿidda is twofold: to check whether the woman is pregnant and to provide the husband with an opportunity to take her back.85 The husband can return to his wife (rajʿa)86 at any time during ʿidda, either expressly by word of mouth or implicitly by resuming marital relations, without the necessity of a new contract or dower and without needing the consent of the wife. Al-Quduri (d. 428/1037) says that a man can return to his wife by announcing that he is returning to her, having intercourse with her, kissing her, or gazing at or touching her with lust. It is recommended to have two men as witnesses, according to 65:2, but the jurists did not consider this as legally binding. According to one opinion, no witnesses are required, just as none is required for any of the other rights a husband has over his wife.87 God’s word here is, as Spectorsky puts it, understood barely as a recommendation.88 After the third pronouncement of ․tala¯ q, the marriage bond is irrevocably dissolved and the former wife becomes ․h ara¯ m/forbidden to the former husband. Two further forms of separation are ․ziha¯ r 89 and ¯ı la¯ ʾ,90 which date back to pre-Islamic time and can still be found today in many modern personal status laws, although without playing an important role. In ․ziha¯ r the husband compares his wife to a relative within a prohibited degree of relation, e.g. his mother;91 in ¯ı la¯ ʾ the husband makes an oath of sexual abstinence from the wife for four months or more.92 The Hanafis maintain that ¯ı la¯ ʾ shall be irrevocable after the lapse of the waiting period; the Malikis, Shafiʿis, Hanbalis and the Shiʿis make the dissolution of marriage subject to a pronouncement of repudiation by the husband or to a suit by the wife. It is then deemed revocable, although Malik makes return to the married status contingent on consummation.93 332

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2.2.3  Redemption (khulʿ and mukha¯ laʿa) Redemption94 is a form of marriage dissolution by mutual consent in which the wife redeems herself mostly by returning the dower to the husband.95 Khulʿ refers to Qurʾan 2:183 with a metaphoric description of the spouses as vestments of each other. The dissolution is irrevocable and takes effect forthwith.96 Early Hanafis and Ibn Hanbal did not address the question of two arbiters as part of the process of khulʿ but Malik and Shafiʿi said that the arbiters’ task was either to separate or to reconcile the couple. According to Spectorsky’s comparison between the formative and the classical texts, a ‘trusted man’ was newly included in classical literature whose task was to oversee the couple’s behaviour and try to reconcile the couple. The arbiters were called upon to act only after this reconciliation effort failed.97 This process is not part of Hanafi discussion, but it is covered in Maliki, Shafiʿi and Hanbali texts.98 Khulʿ including the arbiters has regained importance in modern time because in several personal status laws (Egypt 2000, Morocco 2004) it is now understood as a form of judicial separation which gives the woman the right to redemption even against the husband’s will. This is new and grants women access to initiate divorce without having to refer to one of the legal grounds (see section 2.2.4 ‘Court separation (khiya¯ r fi al-nika¯․h)’). Liʿa¯ n99 is the husband’s oath that the wife has committed adultery and that the child born as a result is not his, whereas she affirms under oath the contrary.100 It gives the impression of a gender-equal act, but classical jurists, both Sunni and Shiʿis, agree that liʿa¯ n was the solution of a problem brought to the Prophet by a husband who complained that if he knew for sure that his wife was adulterous, or that her child was not his, he could not accuse her without bringing in four righteous male witnesses to proof her infidelity, or else he would face the penalty of false accusation (qadhf ). The liʿa¯ n was the solution to this situation. In the case of liʿa¯ n the court decides. Liʿa¯ n does not seem to be of much importance in modernity.

2.2.4  Court separation (khiya¯ r fi al-nika¯h., lit. option on marriage) The only kind of separation which women could initiate is separation by court, for which precise reasons are stipulated by the jurists.101 Following Ibn Rushd, the main legal grounds for the courts to dissolve a marriage are: 1) a defect on the part of the husband or the wife; 2) failure on behalf of the husband to pay dower and maintenance; 3) absence of the husband without an acceptable excuse. Defects are certain diseases, especially of the sex organs, as well as impotence or castration, which make sexual relations impossible. A Hanafi wife could obtain a judicial annulment of her marriage only if it could be proven that her husband was totally incapable of consummating the marriage, and on the grounds of putative widowhood if her husband had become a missing person and 90 years had elapsed since the date of his birth.102 Women under Hanafi classical law thus could not easily hope for a separation.103 The other three major Sunni imams, Malik, Shafiʿi and Ibn Hanbal grant the wife the right to apply to the court for divorce on specific grounds, the judge in such a case being asked to act on behalf of the husband. The reason for these regulations is to prevent any harm (d ․arar) to the woman mentioned in connection with sections 2.2.1–2.2.3 above.104 This argument has gained special importance in modern times, based on Maliki and Hanbali pre-modern law. To counteract the husband’s right of polygyny, Hanbali law regarded stipulations against a second marriage as 333

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enforceable. The Maliki concept of ‘harm’ was broad enough to allow an insistent wife a judicial divorce in the event of her husband marrying again.105 Generally after the end of the marriage and the expiry of the waiting period, the woman receives her dower but has no right to other payments. However, in very restricted cases, there is an indemnity payable to a divorced wife provided that no dower has been stipulated, which is called mutʿa.106 This indemnity has gained importance in modern times, as men who abuse their prerogative to ․tala¯ q and divorce a woman without her fault can be condemned by the court to pay mutʿa, in the form of a monthly sum for a certain limited time. To summarize, the divorce regulations in classical fiqh are clearly gendered. The right to repudiation is in the husband’s hands, which he can exercise at will without the woman being present or without informing her immediately. Khulʿ in its pre-modern version is no compensation for or no expression of the female’s corresponding and ‘equal’ right to divorce, as some modernists argue, because in pre-modern times she needs the husband’s consent. D ․ arar is an option for women seeking the dissolution of marriage but it always obliges the woman to prove her claim.

3  Succession Schacht and Layish consider the Qurʾanic reform of succession as an improvement for women who did not inherit anything in pre-Islamic time. Out of the estate of a deceased the costs of the funeral and the debts are paid first. If the debts equal or exceed the assets of the estate of the deceased, the assets are distributed among the creditors. The umm al-walad, the female slave who has borne her master a child, becomes a free person as well as the child on the death of her master. Excluded from succession are slaves and persons who have caused the death of the deceased. Difference in religion and domicile also matter and are disputed. The power to make a legacy is generally limited to one third of the estate. Female relatives generally receive half the share of male relatives of the same degree. The Imamiyya differs in inheritance from the rulings the Sunni schools developed. For the Sunnis, the heirs are: 1) 2) 3) 4)

those entitled to a fixed share ( fard․ ) based on Qurʾan 4:7–14; the ʿas․aba (male agnate relatives); the manumitter; the cognates (dhawu¯ al-arh․a¯ m), etc.107

For the Sunnis, entitlement to succeed on intestacy rests thus on three distinct grounds which produce three separate groups of legal heirs: the Qurʾanic sharers, the male agnate relatives (ʿas․aba) of the deceased, and, failing these two, female and cognate relatives. The Imamiyya recognizes ‘relationship’ (qara¯ ba) as a basis of entitlement. Accordingly, all relatives (with the exception of the spouse relict who always takes his or her Qurʾanic share) are divided into the following classes: 1) the lineal descendants and parents of the deceased; 2) brothers, sisters and their issue together with the grandparents of the deceased; and 3) uncles and aunts as well as their issue. Entitlement, therefore, depends solely upon the position of the claimant heir within this scheme. The system differs vitally from Sunni law in that it affords no distinctive place to the 334

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male agnate relatives. Furthermore, female and cognate relatives who in Sunni law would only succeed in the last resort, are in Shiʿi law integrated within the general framework of classes. For example, the paternal grandfather of the deceased occupies a favoured position in the Sunni scheme in the absence of the deceased’s father. Ranking as a substitute heir for the latter, he will take a Qurʾanic share of one-sixth in the presence of any child of the deceased, while by virtue of his agnate relationship he will be entitled, in addition, to any residue where the only surviving child of the deceased is a daughter, will take twice as much as the deceased’s mother, when in competition with her alone or in company with the spouse relict, and finally will totally exclude any children of the deceased’s daughter. However, in the Imamiyya, the presence of a child, grandchild or mother of the propositus precludes the paternal grandfather from any rights of succession at all.108 As Coulson states, it is not only that females and cognate relatives generally enjoy a more privileged position in Shiʿi law, but rather that Sunni law, in recognizing the claims of the agnate collaterals, embodies a much broader concept of the family group than Shiʿi law, which rests upon the predominance of the narrower tie of relationship existing between a mother and father and their issue.109

4  Summary With regard to an ideal type, Islamic marriage and inheritance belongs, as stated at the beginning, to the patriarchal type. The husband is not only head of the family, he also represents his family in the public and controls the woman’s body, while having certain prerogatives such as polygyny, repudiation right, guardianship and inheriting twice as much as a woman. The separation of property has led Islamist feminists to argue that Islamic law is ‘modern’ because it gives women a right to property.110 However, this has to be seen as a part of the whole picture of gendered relation in marriage. Mahr, even if not stipulated in the contract, has to be paid before the first marital sex and maintenance is withheld from a woman who is na¯ shiza, which is defined by the jurists as a woman refusing to have intercourse with her husband and/or who does not obey him in other areas. The husband is responsible for maintenance and if he is not able to provide it, the wife can ask for the dissolution of marriage. This is corroborated by Ibn Rushd, who argued that maintenance is either seen as a counter-value of sexual utilization (istimta¯ ʿ, lit. enjoyment) or as compensation for the fact that she is confined (mah․bu¯sa, lit. ‘captive’) because of her husband in case of his absence.111 Thus, Islamic marriage can be seen as a relation of money in exchange for sexual service and obedience, the property separation being a special Islamic flavour of patriarchal family structure but not an expression of gender equality. This core and kernel of gender relations have not been changed or dissolved yet. Female and male activists engage in developing new role models and types of masculinity and femininity against the backdrop of development toward a nuclear family as well as the increasing education and professional life of women. They fight for more gender equality and to curtail the husband’s right to polygyny and divorce. Still, central male prerogatives – with the exception of Tunisia and Turkey – have not yet been abolished. In a law passed in 2004, Morocco recognized husband and wife equally as head of the family (art. 4) but polygyny still is possible and dower is still part of the contract. What is the future of Islamic family law? Azza Karam defines three ideal types of feminists in the Muslim world: Islamist feminists, who consider man and woman, not as equal, but as having complementary rights and who (re)define the gender relation in a hierarchical way keeping many male prerogatives; Muslim feminists, who are convinced that gender equality and Islamic law can generally go together – both groups refer to Islamic sources but engage in new interpretations; and secular feminists, who opt for the acceptance of 335

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international human rights standards including gender equality.112 Is there a chance for gender equality to be realized in the Muslim nation states? The development surely depends on the bargaining power these different social groups display. The legislator in Tunisia demonstrated the general flexibility of the Shariʿah more than half a century ago by creating a personal status law based on gender equality, prohibiting polygyny and giving women equal access to divorce. Other states have not followed this radical course but have made smaller steps towards more gender equality by curtailing some of the male prerogatives. It is thus evident that fiqh, the human interpretation of God’s law, is adaptable to different times and regions and that it has shown plurality in its interpretation throughout the pre-modern time as well as in modernity.

Notes 1 Asaf A. Fyzee, Outlines of Muhammadan Law, 4th edn (Dehli: Oxford University Press, 1974), 90. 2 By ‘pre-modern’ I mean the time before the first codification of family law in 1875 by Qadri ­Pasha in Egypt, which was based on Hanafi law. For reasons of convenience, the expression ‘family law and succession’ is used in this chapter. 3 I use the Qurʾan translation of Arthur John Arberry. 4 Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), 53–4, 59–64. 5 See also Irene Schneider, Women in the Islamic World: From the Earliest Times to the Arab Spring (Princeton, NJ: Markus Wiener Publishers, 2014), 22–30. 6 Irene Schneider, Women in the Islamic World, 5–10. 7 Susan Spectorsky has not only compared the broad range of different legal interpretations of the Qurʾan and Sunnah in the four Sunni schools of law but has also found some substantial differences in the legal classifications and arguments between the formative and the classical time of Islamic law. See Susan Spectorsky, Women in Classical Islamic Law: A Survey of the Sources (Leiden: Brill, 2010). 8 Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 40. 9 Irene Schneider, ‘Islamisches Recht zwischen göttlicher Satzung und temporaler Ordnung? Überlegungen zum Grenzbereich zwischen Recht und Religion’. In Recht und Religion in Europa: Zeitgenössische Konflikte und historische Perspektiven, ed. Christine Langenfeld and Irene Schneider (Göttingen: Universitätsverlag Göttingen, 2008), 142–6. 10 In what follows, references are made to one pre-modern ikhtila¯ f text written by Ibn Rushd (d. 1198) and entitled Bidayat al-Mujtahid wa-Nihayat al-Muqtasid. Ibn Rushd, however, takes only the Sunni schools of law into consideration. He will be quoted below with two page references, giving first the reference of the Arabic edition and second the reference of the English translation. 11 Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964), 183. 12 According to the Hanafis, women were allowed to be judges in family law matters but the other schools objected, only the Tabari giving women the right to be a judge in all legal matters. There seem to have been only a few if any women judges in Muslim history. See Irene Schneider, ‘The Position of Women in the Islamic and Afghan Judiciary’. In The Shariʿa in the Constitutions of ­Afghanistan, Iran and Egypt: Implications for Private Law, ed. Nadjma Yassari (Tübingen: Mohr ­Siebeck, 2005), 83–101. 13 Takhayyur. See Noel J. Coulson, A History of Islamic Law, 185–96. 14 Basem F. Musallam, Sex and Society in Islam: Birth Control Before the Nineteenth Century (­Cambridge: Cambridge University Press, 1983), 10–11. 15 Irene Schneider, Women in the Islamic World, 97–102. 16 Ibn Rushd, The Distinguished Jurist’s Primer: A Translation of Bida¯ yat al-Mujtahid, trans. Imran Ahzan Khan Nyazee, vol. 2 (Reading, Berkshire: Garnet, 1994–6), 31/36. 17 Ibid., 73/87; Irene Schneider, Women in the Islamic World, 38. 18 Frédéric Lagrange, ‘Sexualities and Queer Studies’. In Encyclopedia of Women and Islamic Cultures, Edited by Suad Joseph (Leiden: Brill, 2010), 419–22. 19 Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), 61. 336

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20 Frédéric Lagrange, ‘Sexualities and Queer Studies’, 419–22. 21 Noel J. Coulson, A History of Islamic Law, 111; Shahla Haeri, ‘Divorce in Contemporary Iran: A Male Prerogative in Self-Will’. In Islamic Family Law, ed. Chibli Mallat and Jane Connors (­L ondon: Graham & Trotman, 1990), 58. 22 Joseph Schacht and Aharon Layish, ‘Mı¯ra¯ th’. In Encyclopaedia of Islam, 2nd edn, ed. P. ­Bearman et al. (Leiden: Brill, 2012), http://dx.doi.org.encyclopaediaofislam.han.sub.uni-goettingen. de/10.1163/1573-3912_islam_COM_0747 (accessed 24 July 2018); Wilhelm Heffening, ‘Mutʿa’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. (Leiden: Brill, 2012), http://dx.doi. org.­e ncyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_0819 ­(accessed 24 July 2018). 23 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 3/2; Jamal Nasir, The Islamic Law of Personal Status, 3rd edn (The Hague: Kluwer Law International, 2002), 47. 24 David Pearl and Werner Menski, Muslim Family Law, 3rd edn (London: Sweet & Maxwell, 1998), 140; Joseph Schacht and Aharon Layish, ‘Mı¯ra¯ th’; Asaf A. Fyzee, Outlines of Muhammadan Law, 89. 25 Because they are of great importance for the Islamic concept of marriage and family those financial rights and the connected duties are mentioned in a separate paragraph. 26 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 3–8/13–8. 27 Ibn Rushd states that the majority of the jurists agree that marriage is to be subsumed into the religious category of recommended acts, some even see it as obligatory: Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 2/1; Shahla Haeri, ‘Divorce in Contemporary Iran’, 57. 28 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 8/8; Noel J. Coulson, A History of Islamic Law, 111. 29 Shahla Haeri, ‘Divorce in Contemporary Iran’, 57. 30 Joseph Schacht, Ghaus Ansari, Jean Boyd, J. Knappert, Aharon Layish, J. M. Otto, S. Pompe and Ron Shaham, ‘Nika¯ h ․ ’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. (Leiden: Brill, 2012), http://dx.doi.org.encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_ islam_COM_0863 (accessed 24 July 2018). 31 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 17/19–20. 32 Joseph Schacht, An Introduction to Islamic Law, 161; Susan Spectorsky, Women in Classical Islamic Law, 157. 33 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 6/6. 34 Ibid. 35 Ibid., 7/7; Joseph Schacht, An Introduction to Islamic Law, 162. 36 David Pearl and Werner Menski, Muslim Family Law, 143–5; Jamal Nasir, The Islamic Law of Personal Status, 79. 37 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 15–17/17–19. 38 Susan Spectorsky, Women in Classical Islamic Law, 164–70. 39 Irene Schneider, Women in the Islamic World, 63–75. 40 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 8–17/8–17. 41 Ibid., 2, 9/9. 42 Ibid., 12/13. 43 Ibid., 13/14–15; Jamal Nasir, The Islamic Law of Personal Status, 53. 44 Susan Spectorsky, Women in Classical Islamic Law, 151. 45 I.e. having reached puberty. 46 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 4–5/3–5; Susan Spectorsky, Women in Classical Islamic Law, 151). 47 Ibid., 6/5–6. 48 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 32–54/36–59. 49 Ibid., 32/37. 50 Ibid. 51 Ibid., 42/49. 52 Jamal Nasir, The Islamic Law of Personal Status, 69; Asaf A. Fyzee, Outlines of Muhammadan Law, 46. 53 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 54–7/63–7. 54 Ibid., 55/65. 55 Ibid., 56/66. 56 Ibid., 18–32/20–36. 57 Ibid., 18/20. 337

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58 Ibid., 18/21. 59 Ibid., 22/25. 60 Ibid., 27/31. 61 Susan Spectorsky, Women in Classical Islamic Law, 154. 62 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 54–57/63–67. 63 Jamal Nasir, The Islamic Law of Personal Status, 95. 64 It is interesting that the jurists use this terminology for a woman whose husband is absent. They thus seem to recognize her difficult situation but are not, at least not all of them, willing to support her to be freed. 65 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 54/63. 66 Ibid., 55/64. 67 Jamal Nasir, The Islamic Law of Personal Status, 81. 68 Qurʾan 31:14. 69 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 93/112. 70 Jamal Nasir, The Islamic Law of Personal Status, 146. 71 David Pearl and Werner Menski, Muslim Family Law, 400, 408–10. 72 Jamal Nasir, The Islamic Law of Personal Status, 159–61; David Pearl and Werner Menski, Muslim Family Law, 410–38. 73 Jamal Nasir, The Islamic Law of Personal Status, 155. 74 Joseph Schacht and Aharon Layish, ‘Nika¯ h․ ’. 75 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 61–66/71–79. 76 Joseph Schacht and Aharon Layish, ‘Nika¯ h․ ’. 77 Ibid., 63/75. 78 David Pearl and Werner Menski, Muslim Family Law, 281. 79 Joseph Schacht, An Introduction to Islamic Law, 164. 80 Noel J. Coulson, A History of Islamic Law, 112. 81 Joseph Schacht and Aharon Layish, ‘Mı¯ra¯ th’. 82 HREA. The Moroccan Family Code (Moudawana) of February 5, 2004. Global Human Rights Education and Training Centre, http://www.hrea.org/programs/gender-equality-and-womens-­ empowerment/moudawana/ (accessed 24 July 2018). 83 See Irene Schneider, ‘Translational Turn and CEDAW: Current Gender Discourses in the Islamic Republic of Iran’. In Indonesian and German Views on the Islamic Legal Discourse on Gender and Civil Rights, ed. Fritz Schulze, and Noorhaidi Hasan (Wiesbaden: Harrassowitz Verlag, 2015), 133–65. 84 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 88–97/105–117. 85 Jamal Nasir, The Islamic Law of Personal Status, 137. 86 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 85/101. 87 Susan Spectorsky, Women in Classical Islamic Law, 160. 88 Ibid., 161. 89 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 104–14/127–41. 90 Ibid., 99–104/121–7. 91 Qurʾan 58:1–4. 92 Qurʾan 2:336. 93 Jamal Nasir, The Islamic Law of Personal Status, 114. 94 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 66–70/79–84. 95 Qurʾan 2:229. 96 Jamal Nasir, The Islamic Law of Personal Status, 115. 97 Qurʾan 4:35. 98 Susan Spectorsky, Women in Classical Islamic Law, 172–8. 99 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 115–22/140–50. 100 Qurʾan 24:6–8. 101 Ibid., 50–4/58–63. 102 Noel J. Coulson, A History of Islamic Law, 185. 103 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 50–4/58–63. 104 Ibid., 51–2/60–1. 105 Noel J. Coulson, A History of Islamic Law, 207. 106 Ibid., 31–2. 107 Joseph Schacht, An Introduction to Islamic Law, 170. 338

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108 Noel J. Coulson, A History of Islamic Law, 113–14. 109 Ibid. 110 David Pearl and Werner Menski, Muslim Family Law, 184–5. 111 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 63/54. 112 Azza Karam, Women, Islamism, and the State: Contemporary Feminisms in Egypt (New York: St ­M artin’s Press, 1998), 9–14; Irene Schneider, Women in the Islamic World, 173–9.

Selected bibliography and further reading Coulson, Noel J. A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964). Fyzee, Asaf A. Outlines of Muhammadan Law, 4th edn (Dehli: Oxford University Press, 1974). Haeri, Shahla. ‘Divorce in Contemporary Iran: A Male Prerogative in Self-Will’. In Islamic Family Law, ed. Chibli Mallat and Jane Connors (London: Graham & Trotman, 1990), 55–69. Heffening, Wilhelm. ‘Mutʿa’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. http://dx.doi.org. encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_0819 (accessed 24 July 2018). ­ ducation and HREA. The Moroccan Family Code (Moudawana) of February 5, 2004. Global Human Rights E Training Centre. http://www.hrea.org/programs/gender-equality-and-womens-­empowerment/ moudawana (accessed 24 July 2018). Ibn Rushd, Abu al-Walid Muhammad b. Ahmad. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid. Ed. ʿAbd al-Halim Muhammad (Beirut: Dar al-Kutub al-Islamiyya, 1983). Ibn Rushd, Abu al-Walid Muhammad b. Ahmad. The Distinguished Jurist’s Primer: A Translation of Bidayat al-Mujtahid, trans. Imran Ahzan Khan Nyazee, 2 vols (Reading, Berkshire: Garnet Publishing, 1994–6). Karam, Azza. Women, Islamism, and the State: Contemporary Feminisms in Egypt (New York: St Martin’s Press, 1998). Musallam, Basem F. Sex and Society in Islam: Birth Control before the Nineteenth Century (Cambridge: Cambridge University Press, 1983). Nasir, Jamal. The Islamic Law of Personal Status, 3rd edn (The Hague: Kluwer Law International, 2002). Pearl, David, and Werner Menski. Muslim Family Law, 3rd edn (London: Sweet & Maxwell, 1998). Peters, Rudolph. Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005). Schacht, Joseph. An Introduction to Islamic Law (Oxford: Clarendon Press, 1964). Schacht, Joseph and Aharon Layish. ‘Mı¯ra¯ th’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. http://dx.doi.org.encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_­islam_ COM_0747 (accessed 24 July 2018). Schacht, Joseph. ‘T ․ ala¯ ․k ’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. http://dx.doi.org. encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_1159 (accessed 24 July 2018). Schacht, Joseph, Ghaus Ansari, Jean Boyd, J. Knappert, Aharon Layish, J. M. Otto, S. Pompe and Ron Shaham. ‘Nika¯ h․ ’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. http://dx.doi. org.­e ncyclopaediaof islam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_0863 (­accessed 24 July 2018). Schneider, Irene. ‘The Position of Women in the Islamic and Afghan Judiciary’. In The Shariʿah in the Constitutions of Afghanistan, Iran and Egypt: Implications for Private Law, ed. Nadjma Yassari (Tübingen: Mohr Siebeck, 2005), 83–101. Schneider, Irene. Women in the Islamic World. From the Earliest Times to the Arab Spring (Princeton, NJ: Markus Wiener Publishers, 2014). Schneider, Irene. ‘Translational Turn and CEDAW: Current Gender Discourses in the Islamic Republic of Iran’. In Indonesian and German Views on the Islamic Legal Discourse on Gender and Civil Rights, ed. Fritz Schulze and Noorhaidi Hasan (Wiesbaden: Harrassowitz Verlag, 2015), 133–65. Spectorsky, Susan. Women in Classical Islamic Law: A Survey of the Sources (Leiden: Brill, 2010).

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20 Islamic law and the q ­ uestion of gender equality Ziba Mir-Hosseini

Introduction Gender equality is a modern ideal that did not enter Islam’s juristic landscape until the 20th century, along with the expansion of feminist and human rights discourses. Since then it has been the subject of an impassioned debate – a debate that is entangled in the history of the polemics between Islam and the West, and the anti-colonial and nationalist discourses of the first part of the 20th century. With the rise of political Islam in the second half of the century, and the Islamist slogan of ‘Return to Shariʿah’, the debate became part of a larger intellectual and political struggle among the Muslims between two understandings of their religion and two ways of approaching its sacred texts. One is an absolutist, dogmatic and patriarchal Islam that makes little concession to contemporary realities, such as the changed status of women in society. The other is a democratic, pluralist and rights-based Islam that is making room for these realities and values, including gender equality. In the new century, the politics of the ‘war on terror’ and the invasions of Afghanistan and Iraq – both of them partly justified as promoting women’s rights – added a new layer of complexity to the political and rhetorical dimensions of the debate. In this chapter I outline the conceptions of gender evident in Islamic legal tradition, summarizing how classical Muslim jurists, in the dominant interpretations of the Shariʿah, conceived of gender difference and gender relations. I show how 20th-century ­developments  – notably the rise of Muslim nation-states and changed relations between Islamic law, state and practice – challenged these traditionalist conceptions of gender, and led to the debate between two competing contemporary trends, which I have termed neo-­ traditionalist and reformist. I then introduce the work of recent reformist and feminist voices and scholarship in Islam, and the political and hermeneutical challenges they face in their attempts to bring about an egalitarian construction of gender. Finally, I give the example of the work of Musawah, a movement of scholars and activists for justice and equality in the Muslim family.1 Two themes run through the chapter and link its different sections. First, ideas about gender, equality and justice have always been socially constructed; they were shaped and evolved in interaction with ideological, political, socio-economic forces, 340

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and people’s experiences and expectations. The same goes for interpretations of Islam’s sacred texts and the legal rulings that the jurists derived from them. There is a dynamic tension between spiritual-ethical egalitarianism as an essential part of Islam’s message and the patriarchal context in which this message was unfolded and translated into law. This tension has enabled both proponents and opponents of gender equality to claim textual legitimacy for their respective readings and gender ideologies.2 Second, the contemporary quest for gender equality in Islamic law is part of a larger struggle for social justice, which is enmeshed in an intricate dialectic between religion, politics and practice. The democratization of the production of religious knowledge is an essential part of this struggle.

1  Gender in Islamic legal tradition The lively and contentious debate over gender equality and Islamic law, and the vast literature that it has produced, can be grouped around three competing discourses. The first, which I term Traditionalist, is premised on gender inequality as prescribed by classical Muslim jurists, and is still in operation in its unmodified form in only a few Muslim countries, notably Saudi Arabia. The second discourse is the dominant one, developed in the early years of the 20th century and reflected in the legal codes of many Muslim countries. It advocates ‘complementarity’ of rights, often referred to as ‘gender equity’, which, as we shall see, is a new defence and modification of the classical notion of gender ­inequality – hence I term this perspective Neo-Traditionalist. The third discourse, which I call ­Reformist-Feminist, emerged in the last decades of the 20th century and is still in the process of formation; it argues for gender equality on all fronts; while the other two discourses take a protectionist approach to women’s rights, Reformist-Feminists aim to democratize the dynamics of gender relations in law and in practice, both in the private sphere of the family and in society at large.

1.1  Traditionalists: gender inequality Traditionalists take a literal approach to the texts, and their gender discourse is an ahistorical and simplified version of that of classical fiqh texts.3 These texts take male superiority for granted, reflecting the world in which their authors lived. Biology is destiny; there is no overlap between gender roles; a woman is created to bear and rear children as her only contribution to society; her place is at home. Such a notion of women’s roles and duties informs the ideology and practice of the most conservative Islamist political groups, which take it as the indisputable interpretation of the Shariʿah. They are today a small minority, but as they often enjoy substantial financial support from Saudi Arabia they are able to be active in propagating their views in many countries. The gender discourse in classical fiqh was encapsulated in two sets of legal rulings (ah ․ka¯ m): those that defined the marriage contract and those that regulated women’s dress and access to public space. In these matters, the various fiqh schools all shared the same inner logic and patriarchal bias. If they differed, it was in the manner and extent to which their conception was translated into legal rules. A brief examination of these rulings is in order here, as they are at the centre of the debate about gender equality and Islamic law. Here, I must stress, I am only concerned with the ways in which classical jurists understood and defined gender relations;4 whether these rulings corresponded at the time to actual practices of marriage and women’s covering is, of course, another question, and one that 341

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recent scholarship in Islam has started to answer. What this scholarship warns us is not to take the classical fiqh texts at face value; in pre-modern times judicial rules and court practices were quite different, and women had better access to legal justice than has been the case in more recent times; they frequented courts to negotiate the terms of their marriages and divorces and were present in public space.5

1.1.1  Marriage in classical fiqh In classical fiqh, marriage is one of the very acts that cross the boundary between its two categories of rulings: those pertaining to ʿiba¯ da¯ t (ritual/spiritual acts) and those pertaining to muʿa¯ mala¯ t (social/contractual acts). In spirit, marriage belongs to ʿiba¯ da¯ t, in that Muslim jurists spoke of it as a religious duty ordained by God. In form, it comes under the category of muʿa¯ mala¯ t, in that Muslim jurists defined it as a civil contract between a man and a woman such that any sexual contact outside this contract constitutes the crime of zina¯ (fornication), and is subject to punishment. In its legal structure, marriage is a contract of exchange with defined terms and uniform effects and is patterned after the contract of sale (bayʿ), which has served as model for other contracts. Its essential components are: the offer (ija¯ b) by the woman or her guardian, the acceptance (qubu¯l) by the man, and the payment of dower (mahr), a sum of money or any valuable that the husband pays or undertakes to pay to the bride before or after consummation, according to their mutual agreement.6 With the contract, a woman comes under her husband’s ʿisma/qiwa¯ ma (authority, dominion and protection), entailing a set of defined rights and obligations for each party: some with moral sanction and others with legal force. Those with legal force revolve around the twin themes of sexual access and compensation, embodied in concepts of tamkı¯n/taʿa¯ (submission) and nafaqa (maintenance). Tamkı¯n (unhampered sexual access) is a man’s right and thus a woman’s duty, whereas nafaqa (shelter, food and clothing) is a woman’s right and a man’s duty. A woman becomes entitled to nafaqa only after consummation of the marriage, and she loses her claim if she is in a state of nushu¯z (disobedience).7 The contract establishes neither a shared matrimonial regime nor identical rights and obligations between spouses: the husband is the sole provider and owner of the matrimonial resources and the wife is possessor of the mahr and her own wealth. The only shared space is that involving the procreation of children, and even here a woman is not legally required to suckle her child and can demand compensation if she does. A man can enter more than one marriage at a time: up to four permanent ones in all law schools, and in Shiʿi law also as many temporary marriages (mutʿa)8 as he desires, or can afford. He can terminate each contract at will: no specific grounds are needed, nor is the wife’s consent or presence required. Legally speaking, ․tala¯ q, repudiation of the wife, is a unilateral act (iqa¯ ʿ), which acquires legal effect simply by the husband’s declaration. A wife cannot be released without her husband’s consent, although she can secure her release by offering him inducements, by means of khulʿ, often referred to as ‘divorce by mutual consent’. As defined by classical jurists, khulʿ is a separation claimed by the wife as a result of her extreme ‘reluctance’ (karahiya) towards her husband, and the essential element is the payment of compensation (‘iwad ․) to the husband in return for her release. This can be the return of the dower, or any other form of compensation. Unlike ․tala¯ q, khulʿ is not a unilateral but a bilateral act, as it cannot take legal effect without the husband’s consent. If the wife fails to secure his consent, then her only recourse is the court’s intervention and the judge’s power either to compel the husband to pronounce ․tala¯ q or to pronounce it on his behalf. 342

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1.1.2  Hijab in classical fiqh Unlike rulings on marriage, classical fiqh texts contain little on the dress code for women. The prominence of veiling regulations in Islamic discourses is a recent phenomenon, dating to the 19th-century Muslim encounter with colonial powers. It was then that we see the emergence of a new genre of literature in which the veil acquires a civilizational dimension and becomes both a marker of Muslim identity and an element of faith.9 Classical texts – at least those that set out rulings or what we can call ‘positive law’ – ­address the issue of dress for both men and women under ‘covering’ (sitr) in the Book of Prayer, among the rules for covering the body during prayers, and in the Book of Marriage, among the rules that govern a man’s ‘gaze’ at a woman prior to marriage.10 The rules are minimal, but clear-cut: during prayer, both men and women must cover their ‘awra, their pudenda; for men, this is the area between knees and navel, but for women it means all the body apart from hands, feet and face. A man may not look at the uncovered body of an unrelated woman; but a woman may look at an unrelated man. The ban can be removed when a man wants to contract a marriage and needs to inspect the woman he is marrying. The rules concerning covering during prayer are discussed under ʿiba¯ da¯ t (ritual/worship acts), while rules of ‘looking/gaze’ fall under muʿa¯ mala¯ t (social/contractual acts). There are also related rules in classical fiqh for segregation (banning any kind of interaction between unrelated men and women) and seclusion (restricting women’s access to public space). They are based on two juristic constructs: the first is the one that defines all of a woman’s body as ʿawra, pudenda, a zone of shame, which must be covered both during prayers (before God) and in public (before men); the second defines women’s presence in public as a source of fitna, chaos, a threat to the social order. These are, in a nutshell, the classical fiqh rulings on marriage and covering that the Traditionalists claim to be immutable and divinely ordained. They also claim that these rulings embody the Shariʿah notion of gender, and thereby invoke them to legitimate male domination on religious grounds, thus closing the door to any constructive debate.

1.2 Neo-Traditionalists: equity-complementarity Neo-Traditionalists take a more pragmatic approach; they recognize that a way must be found of responding to the challenges of the modern world, to changing social and economic conditions. While they recognize that classical fiqh conceptions of gender are untenable, they see ‘gender equality’ as a ‘Western’ and alien concept that must be resisted. Instead, they argue for ‘gender equity’ or ‘gender complementarity’, which as we shall see, is reflected in the laws of most Muslim majority countries. The majority of Muslims subscribe to these views, which are also reflected in the vast literature that emerged in the early 20th century under the rubric of ‘women’s status in Islam’. The roots of this gender discourse can be traced to the Muslim encounter with modernity, which coincided with the painful and humiliating encounter with Western colonial hegemony. In this encounter, ‘women’s status’ and Islamic law became symbols of cultural authenticity and carriers of religious tradition – a situation that has continued ever since. The first part of the 20th century saw the expansion of secular education, the rise of modern nation-states and the creation of new legal systems inspired by Western models. In many such nation-states, classical fiqh provisions on the family were selectively reformed, codified and gradually grafted onto unified legal systems. With the exceptions of Turkey, which abandoned fiqh in all spheres of law and replaced it with Western-inspired codes, and Saudi 343

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Arabia, which preserved classical fiqh as fundamental law and attempted to apply it in all spheres of law, the large majority of Muslim nations retained and codified fiqh only with respect to personal status law (family and inheritance). The impetus for, and the extent of, reform varied from one country to another, but on the whole one can say that with the exception of the 1956 Tunisian Family Code, which banned polygamy, the classical fiqh rulings were left more or less intact. Reforms were introduced by mixing (talfı¯q) and choosing ­(ikhtiya¯ r) principles and rulings from different fiqh schools, and through procedural rules. They focused on increasing the age of marriage, expanding women’s access to divorce and restricting men’s right to polygamy. This involved requiring registration of marriage and divorce, and the creation of new courts to deal with marital disputes.11 The codification of fiqh provisions on family law transformed the interaction between Islamic legal tradition, the state and judicial practice. Codes and statute books took the place of classical fiqh manuals in regulating the legal status of women in society; family law was no longer solely a matter for private scholars operating within a particular fiqh school, rather it became the concern of the legislative assembly of a particular nation-state. Once it existed in a codified form and was applied by the machinery of the modern nation-state, ‘Islamic law’ itself came to replace the Muslim scholars, the ʿulama, as the main source of legal authority and transferred that power to the state. All this led to the creation of a hybrid family law that was neither classical fiqh nor Western, and a new gender discourse and genre of literature that is neither traditionalist nor modern. Though commonly subsumed under Modernist Islamic discourse, I suggest that ‘Neo-­Traditionalist’ is a better term, because this discourse upholds the classical fiqh rulings while providing a new rationalization for them. Hence the new genre of literature that emerged in the late 19th century but proliferated in the course of the 20th century. Largely written by men – at least until mid-century – the stated aims of these authors are to shed new light on the status of women in Islam and to clarify what they see as ‘misunderstandings’. They re-read the sacred texts in search of solutions – or more precisely, ‘Islamic’ ­a lternatives – to contemporary problems such as women’s aspiration for equality. Despite their variety and diverse cultural origins, what these re-readings have in common is an oppositional stance and a defensive or apologetic tone. Oppositional, because their concern is to resist the advance of what they see as alien ‘Western’ values and lifestyles; apologetic, because they attempt to explain and justify the gender biases which they inadvertently reveal, by going back to classical fiqh texts. However, they have problems responding to the voices of dissent within the Muslim world itself.12 They do not see men’s privileges in marriage, such as polygyny and the unilateral right to divorce, as discrimination but as an admission of the differences in male and female natures and sexualities, and between men’s rational and women’s emotional dispositions. They place their focus on the ethical and moral rules that marriage entails for each spouse, drawing attention to those Qurʾanic verses and hadith that affirm the essential equality of the sexes; ignoring the fact that these ethical rules, in effect, carry no legal sanction, they put forward no argument for translating them into law. As for hijab, they see it as a religious obligation whose function is to protect women and to safeguard public morality, while they keep silent on classical fiqh’s construction of women’s body as ʿawra, the sexual zone. Unwilling to accept that aspirations for gender equality are not just imported from the West but part of 20th-century reality, they find themselves in a contradictory position. On the one hand, they uphold fiqh rulings on marriage and gender relations; on the other, they are aware of and sensitive to current discussions of women’s rights and to criticisms, from both secular and religious women, of the patriarchal biases in Islamic legal tradition. Education and 344

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employment, divorce laws and the question of hijab are the main themes through which they address issues of women’s rights and define a range of positions. It is common to find a single scholar arguing for gender equality on one issue (for example, rights to education and employment), yet rejecting it on another (for example, divorce). In short, in these texts, the inequalities embedded in the classical fiqh construction of marriage and gender relations are defended and rephrased in terms such as ‘equity’ and ‘complementarity of rights and duties’. With the rise of political Islam in the second part of the 20th century, these Neo-­ Traditionalist texts and their gender discourse became closely identified with Islamist political movements, whose rallying cry was ‘Return to Shariʿah’ as embodied in fiqh rulings.

1.3 Reformist-Feminists: gender equality A small but increasingly vocal minority, Reformists hold that the best way to defend Islam in the modern world is by radically re-interpreting the sacred texts, in ways that will be both faithful to the basic principles of Islam and fully take account of time and place, that is of changing and varied social conditions. They do not reject an idea simply because it is Western; they see Islam’s textual sources not as providing a blueprint, an in-built programme of action for the social, economic and political problems of the Muslim world, but rather as giving us ethical guidance and principles for the creation of just laws. The more daring Reformist scholars have offered new interpretations that advocate gender equality; but the principle of gender equality has not yet been fully translated into the legal code of any Muslim majority country.13 Two parallel developments acted as catalysts for emergence of an egalitarian gender discourse. The first was the ways in which the successes of political Islam and the ideological use of Shariʿah transformed relations between religion, law and politics for Muslims. The slogan of ‘Return to Shariʿah’ in practice amounted to little more than attempts to translate into state policy classical fiqh rulings on gender relations and family and some areas of penal law. In late colonial times and the immediately post-colonial middle decades of the century, activist women in Muslim contexts had increasingly come to identify Islam with patriarchy, and to fear that the removal of the latter could not be achieved under a polity and a legal regime dominated by Islam. Towards the end of the century, wherever Islamists gained power or influence – as in Iran, Pakistan and Sudan – their policies proved the validity of these fears. Arguing for patriarchal rulings as ‘God’s Law’, as the authentic ‘Islamic’ way of life, Islamists tried to reverse some of the legal gains that women had acquired earlier in the century; they dismantled elements of earlier family law reforms and introduced morality laws, such as gender segregation and dress codes. But these Islamist measures had some unintended consequences; the most important was that, in several countries, they brought classical fiqh texts out of the closet, and exposed them to unprecedented critical scrutiny and public debate. A new wave of Muslim reform thinkers started to respond to the Islamist challenge and to take Islamic legal thought onto new ground. Building on the earlier reformers, these new thinkers contended that the human understanding of Islam is flexible, that Islam’s tenets can be interpreted to encourage both pluralism and democracy, that Islam allows change in the face of time, place and experience. But instead of searching for an Islamic genealogy for modern concepts like gender equality, human rights and democracy, they placed the emphasis on how religion is understood and how religious knowledge is produced.14 The second development was the expansion of transnational feminism and women’s groups, and the emergence of NGOs, which led to the opening of a new phase in the 345

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politics of gender and Islamic law. Earlier in the century women were largely absent from the process of reform and codification of family law and the debates that surrounded it. But by the end of the century, Muslim women were refusing to be merely objects of the law, but rather claiming the right to speak and to be active participants in the debates and in the process of law making. The changed status of women in Muslim societies, and other socio-economic imperatives, meant that many more women than before were educated and in employment. Women’s rights were by now part of human rights discourse, and human rights treaties and documents, in particular the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), gave women a new language in which to frame their demands. These developments opened new spaces for activism and debate. Women were now finding new ways to sustain a critique, from within, of patriarchal readings of Islam’s sacred texts and the gender biases of fiqh texts. By the early 1990s, there were clear signs of the emergence of a new consciousness, a new way of thinking, and critical voices and scholarship that argued for gender equality on all fronts. Some versions of this new discourse came to be labelled ‘Islamic feminism’ – a conjunction that was unsettling to many Islamists and some feminists. Taking Islam as the source of its legitimacy, Islamic feminists began to question both the hegemony of patriarchal interpretations of the Shariʿah and the authority of those who speak in the name of Islam. Their voices started to draw attention from media and academia, via publications, public meetings and workshops that provided a platform for scholar-activists. The genesis of gender inequality in Muslim legal tradition, these scholars showed, lies in a contradiction between the ideals of Islam on the one hand, and on the other, the male-­ dominated structures in which these ideals unfolded and were translated into legal norms. They have produced an impressive body of scholarship to tackle patriarchal interpretations and text-based sources of gender inequalities and to reclaim Islam’s egalitarian message.15 This literature is extensive and diverse in approach;16 here I can merely outline the argument as to how and why male dominance came to be embedded in Muslim legal tradition. This was done through two sets of related processes. The first set is ideological and political, and has to do with the strong patriarchal ethos that informed readings of the sacred texts, the exclusion of women from the production of religious knowledge, and their consequent inability to have their voices heard and their interests reflected in law. The second set is more epistemological, and involves the processes through which existing social norms, marriage practices and gender ideologies were sanctified, and then turned into fixed entities and legal concepts. That is, rather than considering them as social, thus temporal, institutions and phenomena, they were treated as ‘divinely ordained’, thus immutable. There is an extensive debate in the literature on this, which I will not enter.17 But there are two points of consensus. The first is that the revelatory texts outlawed only some of the existing patriarchal practices of the time (such as burying infant girls alive and coercing women into unwanted marriages) and left others intact (such as polygamy and men’s right to unilateral divorce). As with slavery, the institution of patriarchy was not abolished; what the Qurʾan and the Prophet did was to set in motion a process to transform them in the direction of justice, and to rectify injustices as they were understood at the time. The second consensus is that the further we move from the time of revelation, the more women are marginalized; their voices are silenced and their presence in public space is curtailed and eventually they lose their political clout. Women had been among the main transmitters of the hadith traditions, but by the time the fiqh schools were consolidated, over a century after the Prophet’s death, their critical faculties were so far denigrated as to make their concerns irrelevant to law-making processes.18 As for hijab, in contrast to Neo-Traditionalists, they do not see it as 346

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an obligation but as a right, and defend a woman’s choice whether to adopt it or not. They have shifted the whole premise of hijab, not only the rationale for it. In short, by re-reading textual sources and recovering a hidden history, Muslim feminist scholars are not only reclaiming the egalitarian message of their faith, but also inserting women’s voices in the production of religious knowledge and the process of law making. To give a concrete example of how they do this, I briefly discuss Musawah and its first major research initiative.

2  Musawah: scholarship and activism Musawah as a global movement for equality and justice in the Muslim family was initiated in 2007 by the pioneering Malaysian women’s group, Sisters in Islam, and launched in Kuala Lumpur in February 2009. Inspired by the activism of Moroccan women, and their success in bringing radical reforms in Moroccan family law in 2004, we (I was one of the founders) adopted their slogan, ‘Change is necessary and change is possible’.19 We sought to link research with activism, to develop a holistic framework integrating Islamic teachings, universal human rights law, national constitutional guarantees of equality and the lived realities of women and men. We commissioned a number of concept papers by reformist thinkers, such as Khaled Abou El Fadl, Muhammad Khalid Masud and Amina Wadud, as a way of opening new horizons for thinking, to show how the wealth of resources within Islamic tradition, and in the Qurʾanic verses on justice, compassion and equality, can support the promotion of human rights and a process of reform toward more egalitarian family relations. These papers were published as the book Wanted: Equality and Justice in the Muslim Family;20 we made them available in English, French and Arabic and used them as the basis for a wider discussion with a larger group of Muslim scholars and human rights and women’s rights activists. This discussion, including two further workshops in Cairo and London, followed by constant electronic communication among the members of the committee, led to the Musawah Framework for Action.21 Drawing on the latest Muslim reformist thought and feminist scholarship in Islam, in Framework for Action we ground our claim to equality and arguments for reform simultaneously in Islamic and human rights frameworks. Taking a critical feminist perspective, but most importantly working within the tradition of Islamic legal thought, we invoke two of its main distinctions. The first distinction, which underlies the emergence of the various schools of Islamic law and within them a multiplicity of positions and opinions, is between Shariʿah and fiqh. Shariʿah (‘the way’) in Muslim belief is God’s will as revealed to the Prophet Muhammad. Fiqh (‘understanding’) is Islamic jurisprudence, the process and the methodology for discerning the Shariʿah and extracting legal rules from the sacred sources of Islam: the Qurʾan and the Sunnah (the practice of the Prophet, as contained in ahadith, traditions). Like any other system of jurisprudence, fiqh is mundane, temporal and local. The second distinction, referred to earlier, is that between the two main categories of legal rulings (ah ․ka¯ m): ʿiba¯ da¯ t (ritual/spiritual acts) and muʿa¯ mala¯ t (social/contractual acts). Rulings in the first category, ʿiba¯ da¯ t, regulate relations between God and the believer, where jurists contend there is limited scope for rationalization, explanation and change, since they pertain to the spiritual realm and divine mysteries. This is not the case with muʿa¯ mala¯ t, which regulate relations among humans and remain open to rational considerations and social forces, and to which most rulings concerning women and gender relations belong. These distinctions give us the language, the conceptual tools, to argue for gender equality from within Muslim legal tradition. Our main objective is to re-insert women’s concerns 347

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and voices, which were silenced by the time that the fiqh schools emerged, into the processes of the production of religious knowledge and law making. In this sense what we are doing is part of the larger struggle for the democratization of production of knowledge in Islam, and for the authority to interpret its sacred texts. Two questions are at the centre of our work: If justice and equality are values central to Islam, as we believe they are, why have women been treated as inferior to men in Muslim legal tradition and in Muslim societies? And if equality has become inherent to conceptions of justice in modern times, as many Muslims now recognize, how can it be reflected in Muslim laws? In 2010, Musawah initiated a multi-faceted project to rethink two central concepts that we argue lie at the basis of the unequal construction of gender rights in Muslim family laws. These are qiwa¯ ma and wila¯ ya, which, as understood and translated into legal rulings by Muslim scholars, place women under male control. Qiwa¯ ma denotes a husband’s authority over his wife; wila¯ ya denotes the right and duty of male family members to exercise guardianship over female members (e.g. fathers over daughters when entering into marriage contracts). These two concepts underlie the logic of most contemporary Muslim family laws and are manifested in legal provisions that regulate spousal and parental duties and rights.22 The project has two interconnected elements. The first is the production of new feminist knowledge that critically engages with these concepts and redefines them in line with contemporary notions of justice. The second element of the project involves documenting the life stories of Muslim women and men in different countries with the aim of revealing how they experience, understand and contest these two legal concepts in their lived realities. For the first element, we invited scholars from different disciplines to write background papers that expound and interrogate the construction of qiwa¯ ma and wila¯ ya, their associated religious and legal doctrines, and their place and working in contemporary laws and practices. Then, in the course of several intensive workshops we discussed these background papers and shared their insights with our advocates and those involved in the life stories element. This, of course, took us to Qurʾan 4:34, which constitutes the main textual evidence in support of men’s authority over women, and is often the only verse that ordinary Muslims know in relation to gender relations and family law. It reads: Men are qawwa¯ mun (protectors/maintainers) in relation to women, according to what God has favoured some over others and according to what they spend from their wealth. Righteous women are qanita¯ t (obedient) guarding the unseen according to what God has guarded. Those [women] whose nushu¯z (rebellion) you fear, admonish them, and abandon them in bed, and ad․ribuhunna (strike them). If they obey you, do not pursue a strategy against them. Indeed, God is Exalted, Great. This verse has been the focus of intense contestation and debate among Muslims for over a century. There is now a substantial body of literature that attempts to contest and reconstruct the meanings and connotations of the four Arabic terms above (italicized). Kecia Ali, from whom I have taken the translation of the verse, leaves the emphasized words untranslated, pointing out that any translation of each of these key terms amounts to an interpretation. 23 I have inserted translations that approximate the consensus of classical Muslim jurists and are reflected in a set of rulings (ah․ka¯ m) that they devised to define marriage and marital relations. These rulings rest on a single postulate: that God placed women under male authority. For these jurists, men’s superiority and authority over women was a given, legally inviolable; it was in accordance with a conception of justice that accepted slavery and patriarchy, as long as slaves and women were treated fairly. They naturally understood the verse in this light; 348

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they used the four key terms in the verse to define relations between spouses, and notions of justice and equity. This is what in our project we refer to as the qiwa¯ ma postulate – using ‘postulate’ in the sense defined by Japanese legal scholar Masaji Chiba: ‘A value system that simply exists in its own right’.24 It operates in all areas of Muslim law relating to gender rights, but its impact is most evident in the laws that classical jurists devised for the regulation of marriage and divorce. As outlined earlier, they defined marriage as a contract that automatically places a wife under her husband’s qiwa¯ ma (authority) and presumes an exchange: the wife’s obedience and submission (tamkin) in return for maintenance (nafaqah) by the husband. Yet the term qawwa¯ mu¯n, from which the jurists derived the concept of qiwa¯ ma, only appears once in the Qurʾan in reference to marital relations.25 The closely related term wila¯ ya does occur in the Qurʾan, but never in a sense that specifically endorses men’s guardianship over women, which is the interpretation of the term that is enshrined in classical fiqh.26 Many other verses speak of the essential equality of men and women in the eyes of God and the world. In relation to marriage, two other terms appear numerous times: maʿru¯f (that which is commonly known to be right) and rah․ma wa mawadda (compassion and love). One of the main objectives of the project is to bring the insights from feminist theory and gender studies into conversation with Islamic legal tradition, and to ask new questions: Why and how did verse 4:34, and not other relevant Qurʾanic verses, become the foundation for the legal construction of marriage? What does male guardianship, as translated in the concepts qiwa¯ ma and wila¯ ya, entail in practice? How can we rethink and reconstruct them in line with contemporary notions of justice and maʿru¯f of our time? What do equality and justice entail in family and society? Do they entail identical rights and duties for spouses? These questions are central to the ongoing struggle for equality and justice in Muslim families, and our project seeks to clarify them and suggest some answers. The first product of our research is a collected volume: Men in Charge? Rethinking Authority in Muslim Legal Tradition.27 Its main thesis is that the concepts of qiwa¯ ma and wila¯ ya have mistakenly been understood as a divine sanction for men’s authority over women, with the result that they have become the building blocks of patriarchy within Muslim legal tradition.

3  Justice and equality: changing and contested concepts One of the central challenges that Muslim women face in their struggle for equality is how to address in a meaningful and coherent way the wide gap that exists between modern notions of justice, to which equality is inherent, and the notions of justice that underpin established understandings of the Shariʿah. It is here that the insight of feminist legal theory is important, not least in clarifying the different understanding of ‘equality’. While the Neo-Traditionalists admit the gender equality in the spiritual cosmology (creation and afterlife), when it comes to the social realm, they basically adhere to the classical fiqh model of gender relations according to which women, because of their ‘nature’, are in need of protection. Their main argument goes as follows: equality amounts to a denial of the differences between men and women, and to give them equal rights would be against not only the laws of nature but also the requirements of justice. Such a notion of justice, reflecting the Aristotelian idea of proportional equality, was profoundly challenged during the 20th century by the expansion of the human rights framework. An egalitarian understanding of social justice requires us to go beyond the binary of equality versus difference, to see them not as opposites but as interdependent. As feminist 349

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scholarship made evident, creating a binary opposition between the two creates a false choice when it comes to gender relations: ‘between endorsing either “equality” or its presumed antithesis, “difference”’. Equality is not the elimination of difference, and difference does not preclude equality.28 We need equality as a principle of justice in society, in law, for regulating human relations, including gender relations, precisely because all humans are different in their capacities, access to resources, etc. This way of thinking about equality and difference is reflected in the shift from ‘formal’ to ‘substantive’ models, which take into account differences between the sexes and the direct and indirect discrimination that such differences can produce.29 A formal model of equality, which advocates gender-neutral laws, does not necessarily enable women to enjoy their rights on the same basis as men. This is because it rests on a false premise: that the starting point and the playing field are the same for men and women. Not only do women not have the same access as men to socio-economic resources and political opportunities, but women are not a homogeneous group; they do not experience legal inequality and discrimination in the same ways; class, age, ethnicity, socio-economic situation are all important factors in the ways in which women have been disadvantaged. A substantive approach to equality, by contrast, takes these factors into account. Instead of striving for gender-neutral laws, the emphasis is on the kinds of laws and legal reforms that can ensure equality of opportunity and result; that regulate power relations between men and women in such a way that women are able to enjoy dignity, security and respect in the family, and full participation in society. It is this substantive model of equality that is advocated by members of Musawah and many other Islamic feminists, who, while not denying differences between men and women, yet strive for just outcomes. Inspired by the Qurʾanic vision of justice and gender relations, they contend, equality can only be achieved with laws that transform power relations in the family and in society in the direction of just outcomes. A protectionist approach, on the other hand, by keeping power relations in marriage and society intact, in effect leads to injustice. This is so because it not only perpetuates gender stereotypes, but more importantly it curtails women’s freedom and the sphere of their activities, with the rationale of ‘protecting’ them from harm and wrongdoing. In doing so, it treats them as perpetual minors, which undermines their human dignity (karama¯ t) and prevents them from fulfilling their potential in both spiritual and social realms.

Conclusion The egalitarian position on women’s rights and roles, coming from within an Islamic framework, has yet to make its impact by rectifying the inequalities inherent in orthodox interpretations of Shariʿah, and by eliminating social and cultural practices that oppress and discriminate against women in Muslim societies. Both the egalitarian position and the reformist movement of which it is a part are still in a formative phase, and their fortunes are tied to political developments, both global and local. I end with two observations. First, the very existence of the debate, and the growing literature on ‘women in Islam’ that has emerged since the early years of the 20th century, are signs of the passing of an era. Available in a variety of languages (and much of it now on the internet) and ranging from sound scholarship to outright polemics, this literature displays different positions and different gender perspectives, from those who endorse the classical fiqh rules, to those who seek their modification in the idea of ‘complementarity of rights’, to those who advocate gender equality on all fronts. Irrespective of their position and gender 350

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perspective, all contributors to this literature agree that ‘Islam honours women’s rights’, and that justice and fairness are integral to the Shariʿah; they disagree on what these rights are, what constitutes justice for women, and how to realize it within an Islamic framework. The intensity of the debate, and the diametrically opposed positions taken, are indications of a paradigm shift in thinking about gender rights, Islamic law and politics. We become aware of the old paradigm only when the shift has already taken place, when the old rationale and logic, previously undisputed, lose their power to convince and cannot be defended on ethical grounds. Feminist voices and scholarship in Islam herald the coming of an egalitarian legal paradigm that is still in the making. Second, legal systems and theories are embedded in the cultural, political and social contexts in which they exist and operate. The old fiqh paradigm, with its strong patriarchal ethos, as well as the new feminist readings of the Shariʿah, should be understood in this complex double image, as both expressing and shaping socio-legal norms and practices. It is important to remember that legal theory or jurisprudence develops in interaction with social practices, political, economic and ideological forces and people’s experience and expectations. In other words, most often law follows or reflects practice; that is to say, when social reality changes, then social practice will effect a change in the law. Islamic legal tradition is no exception – as attested by the way both legal systems and women’s lives and social experiences have been transformed in the course of the last century, and in the new one by the feminist challenge from within to patriarchal interpretations of the Shariʿah.

Notes 1 This chapter draws on and expands my arguments in Ziba Mir-Hosseini, ‘The Construction of Gender in Islamic Legal Thought and Strategies for Reform’, Hawwa 1(1) (2003): 1–28; ‘Towards Gender Equality: Muslim Family Law and the Shariʿa’, in Wanted: Equality and Justice in Muslim Family Law, ed. Zainah Anwar (Kuala Lumpur: Sisters in Islam, 2009), http://www.musawah.org/ sites/default/files/Wanted-ZMH-EN.pdf. My warmest gratitude goes to Richard Tapper for his support in the process of writing. 2 Such a tension is present in other scriptural religions, as revealed by feminist scholarship. See, for example, Rosemary Radford Ruether, Sexism and God-Talk: Toward a Feminist Theology¸ 2nd edn (Boston, MA: Beacon Press, 1993) for Christianity; and Susannah Herschel (ed.), On Being a Jewish Feminist: A Reader, 2nd edn (New York: Schocken Books, 2005) for Judaism. 3 By classical fiqh texts I intend those produced before the late 19th century. 4 For such a discussion, see Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, MA: Harvard University Press, 2010) and Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge University Press, 2005). 5 See, for instance, Amira El Azhary Sonbol (ed.), Women, Family and Divorce Laws in Islamic History (Syracuse, NY: Syracuse University Press, 1996); Judith Tucker, In the House of Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 2000); Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford: Oxford University Press, 2011). 6 For a concise discussion of the terms of the marriage contract in classical fiqh texts, see Kecia Ali, ‘Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines’, in The Islamic Marriage Contract: Case Studies in Islamic Family Law, ed. Asifa Quraishi and Frank E. Vogel (Cambridge, MA: Harvard University Press, 2008), 11–45. 7 Nushuz literally means ‘rebellion’ and it implies the abandonment of marital duties. Despite the fact that fiqh sources acknowledged that such abandonment can take place on the part of both spouses, they use the term na¯ shiza (rebellious) only in the feminine form and in relation to maintenance rights; see Kecia Ali, ‘Religious Practices: Obedience and Disobedience in Islamic Discourses’, in Encyclopedia of Women and Islamic Cultures, vol. 5, ed. Suad Joseph (Leiden: Brill, 2007), 309–13. 8 For this form of marriage, see Shahla Haeri, Law of Desire: Temporary Marriage in Iran (London: I. B. Tauris, 1989). 351

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9 Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, CT: Yale University Press, 1992), 144–68. 10 Many terms commonly used today in different countries for ‘the veil’, such as hijab, parda (‘purdah’), chador, burqa, are not found in classical fiqh texts. 11 For codification, see James Norman Anderson, Law Reforms in the Muslim World (London: Athlone, 1976); for reforms, see Fazlur Rahman, ‘A Survey of Modernization of Muslim Family Law’, International Journal of Middle East Studies 11 (1980): 451–65. 12 For a discussion of such writings in the Arab world, see Yvonne Yazbeck Haddad, ‘Islam and Gender: Dilemmas in the Changing Arab World’, in Islam, Gender and Social Change, ed. Yvonne Yazbeck Haddad and John Esposito (Oxford: Oxford University Press,1998), 3–29; Barbara Stowasser, ‘Women’s Issues in Modern Islamic Thought’, in Arab Women: Old Boundaries, New Frontiers, ed. Judith E. Tucker (Bloomington: Indiana University Press, 1993), 3–28. For Iran, see Ziba Mir-­ Hosseini, ‘Women’s Rights and Clerical Discourses: The Legacy of ʿAllameh Tabatabaʾi’, in Intellectual Trends in Twentieth-Century Iran, ed. Negin Nabavi (Gainesville: University Press of Florida, 2003), 193–217. For a sample of texts in English, see Maulana Abul Aʿla Maududi, The Laws of Marriage and Divorce in Islam (Kuwait: Islamic Book Publishers, 1983); Murtaza Mutahhari, The Rights of Women in Islam, 4th edn (Tehran: World Organization for Islamic Services, 1991). For general critique, see Kecia Ali, ‘Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law’, in Progressive Muslims: On Justice, Gender, and Pluralism, ed. Omid Safi (Oxford: Oneworld, 2003), 163–89; Adis Duderija, Constructing a Religiously Ideal ‘Believer’ and ‘Woman’ in Islam: Neo-traditional Salafi and Progressive Muslims’ Methods of Interpretation (New York: Palgrave, 2011); Ziba Mir-Hosseini, ‘Sexuality and Inequality: The Marriage Contract and Muslim Legal Tradition’, in Sexuality in Muslim Contexts: Restrictions and Resistance, ed. Anissa Helie and Homa Hoodfar (London: Zed Press, 2012), 124–48. 13 The 1956 Tunisian and the 2004 Moroccan family codes come close. 14 In this respect, the work of thinkers such as Khaled Abou El Fadl, Nasr Hamid Abu-Zayd, Mohammad Arkoun, Mohammad Iqbal, Mohammad Khalid Masud, Mohammad Mojtahed-­Shabestari, Fazlur Rahman, Tariq Ramadan, Abdolkarim Soroush and Amina Wadud are of immense importance and relevance. For introductions and samples of the work of Muslim reform thinkers, see Charles Kurzman (ed.), Liberal Islam: A Sourcebook (Oxford: Oxford University Press, 1998) and Katajun Amirpur, New Thinking in Islam: The Jihad for Freedom, Democracy and Women’s Rights ­( London: Gingko Library, 2015); for a critical historical analysis, see Nasr Hamid Abu-Zayd, Reformation of Islamic Thought: A Critical Historical Analysis (Amsterdam: Amsterdam University Press, 2006). 15 See, for instance, Aziza Al-Hibri, ‘A Study of Islamic Herstory: How did We Get into this Mess’, in Islam and Women, Special issue of Women’s Studies International Forum 5(2) (1982): 207–19; Riffat Hassan, ‘Equal before Allah? Woman–man Equality in the Islamic Tradition’, Harvard Divinity Bulletin 7(2) ( Jan–May 1987), http://www.globalwebpost.com/farooqm/study_res/islam/gender/equal_ riffat.html (accessed 1 January 2014); Fatima Mernissi, Women and Islam: An Historical and Theological Enquiry, trans. Mary Jo Lakeland (Oxford: Blackwell, 1991); Amina Wadud, Qurʾan and Woman: Rereading the Sacred Text from a Woman’s Perspective (New York: Oxford University Press, 1999); Kecia Ali, ‘Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law’, in Progressive Muslims, ed. Omid Safi (Oxford: Oneworld, 2003), 163–89; Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of the Qurʾan ­(Austin: University of Texas Press, 2002); Saʿdiyya Shaikh, ‘Knowledge, Women, and Gender in Hadith: A Feminist Interpretation’, Islam and Christian-Muslim Relations 15(1) (2004): 99–108. 16 For recent assessments of this literature, see Omaima Abou-Bakr (ed.), Feminist and Islamic Perspectives: New Horizons of Knowledge and Reform (Cairo: Women and Memory Forum with the Danish– Egyptian Dialogue Institute and the Danish Center for Research on Women and Gender, 2013); Fatima Seedat, ‘When Islam and Feminism Converge’, The Muslim World 103(3) (2013): 404–20; Marcia Hermansen, ‘New Voices of Women Theologians’, in Muslima Theology: Voices of Muslim Women Theologians, ed. Ednan Aslan, Elif Medeni and Marcia Hermansen (Frankfurt-am-Main: Peter Lang, 2013), 11–34; Adis Duderija, ‘Toward a Scriptural Hermeneutics of Islamic Feminism’, Journal of Feminist Studies in Religion 31(2) (2015): 45–64. 17 Some argue that the advent of Islam weakened the patriarchal structures of Arabian society, others that it reinforced them. The latter also maintain that, before the advent of Islam, society was undergoing a transition from matrilineal to patrilineal descent, that Islam facilitated this by giving patriarchy the seal of approval, and that the Qurʾanic injunctions on marriage, divorce, inheritance 352

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18

19 20 21 22

23 24 25

26

27 28 29

and whatever relates to women both reflect and affirm such a transition. For concise accounts of the debate, see Jane Smith, ‘Women, Religion and Change in Early Islam’, in Women, Religion and Social Change, ed. Yvonne Yazbeck Haddad and Ellison Banks Findly (Albany, NY: SUNY Press, 1985), 19–35; Denise Spellberg, ‘Political Action and Public Example: ʿAʾisha and the Battle of the Camel’, in Women in Middle Eastern History: Shifting Boundaries in Sex and Gender, ed. Beth Baron and Nikki Keddie (New Haven, CT: Yale University Press, 1991), 45–57. Women remained active in transmitting religious knowledge, but their activities were limited to the informal arena of homes and mosques and their status as jurists was not officially recognized, as Abou-Bakr, ‘Feminist and Islamic Perspectives’, and Asma Sayeed, Women and the Transmission of Religious Knowledge in Islam (Cambridge: Cambridge University Press, 2013) show. Collectif 95 Maghreb-Egalité, Guide to Equality in the Family in the Maghreb. Women’s Learning Partnership for Rights, Development and Peace, 2005, http://learningpartnership.org/guide-toequality (accessed 24 July 2018). Zainah Anwar (ed.), Wanted: Equality and Justice in the Muslim Family (Kuala Lumpur: Sisters in Islam, 2009). See Framework for Action, available in five languages, http://www.musawah.org/about-musawah/ framework-action (accessed 24 July 2018). The project built on an earlier one, ‘New Directions in Islamic Thought’, hosted by the Oslo Coalition for Freedom of Religion or Belief, in which some of us were involved. See Ziba Mir-­ Hosseini, Kari Vogt, Lena Larsen and Christian Moe (eds), Gender Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition (London: I. B. Tauris, 2013). Kecia Ali, ‘Muslim Sexual Ethics: Understanding a Difficult Verse, Qurʾan 4:34’, http://www. brandeis.edu/projects/fse/muslim/mus-essays/mus-ess-diffverse.html (accessed 1 January 2014). Masaji Chiba (ed.), Asian Indigenous Law in Interaction with Received Law (London and New York: Kegan Paul International, 1986). Qawwamun appears in two other verses (4:135 and 5:8), where it has a very different, positive and gender-inclusive meaning. See Asma Lamrabet, ‘An Egalitarian Reading of the Concepts of Khalifah, Wilayah and Qiwamah’, in Men in Charge? Rethinking Authority in Muslim Legal Tradition, ed. Ziba Mir-Hosseini, Mulki Al-Sharmani and Jana Rumminger (London: Oneworld, 2015), 65–87. Wila¯ ya appears in Verse 18:44, where it refers to God’s protection of humans. However, words derived from it, such as wali, appear in many verses as an attribute of God or to describe human beings in particular contexts and stories in the Qurʾan. More importantly, none of the verses on which the jurists based the doctrine of wila¯ ya in regard to marriage guardianship (2:221, 2:232, 2:234, 2:237, 4:2, 4:3, 4:6, 4:25, 24:32, 60:10, 65:4) use the term wali or wila¯ ya; see Mohammad Khalid Masud, ‘Gender Equality and the Doctrine of Wilaya’, in Mir-Hosseini et al. (eds), Gender Equality in Muslim Family Law, 132–3. Mir-Hosseini et al. (eds), Men in Charge? Joan Scott, ‘Deconstructing Equality-versus-Difference: OR, the Uses of Poststructuralist Theory for Feminism’, Feminist Studies 14(1) (1998): 33–50. For instance, Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’, South African Journal of Human Rights 21 (2005): 163–90; Ratna Kapur, ‘Unveiling Equality: Disciplining the ‘Other’ Woman Through the Human Rights Discourse’, in Islamic Law and International Human Rights Law, ed. Anver M. Emon, Mark S. Ellis and Benjamin Glahn (Oxford: Oxford University Press, 2012), 265–90.

Selected bibliography and further reading Abou-Bakr, Omaima (ed.). Feminist and Islamic Perspectives: New Horizons of Knowledge and Reform (Cairo: Women and Memory Forum with the Danish–Egyptian Dialogue Institute and the Danish Center for Research on Women and Gender, 2013). Abou El Fadl, Khaled. Speaking in God’s Name: Islamic Law, Authority and Women (Oxford: Oneworld, 2001). Al-Hibri, Aziza. ‘A Study of Islamic Herstory: How Did We Get into this Mess’. In Islam and Women, Special issue of Women’s Studies International Forum 5(2) (1982): 207–19. Ali, Kecia. Sexual Ethics and Islam: Feminist Reflections on Quran, Hadith and Jurisprudence (Oxford: ­Oneworld, rev. edn, 2016). 353

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Barlas, Asma. Believing Women in Islam: Unreading Patriarchal Interpretations of the Qurʾan (Austin: University of Texas Press, 2002). Mir-Hosseini, Ziba. ‘The Construction of Gender in Islamic Legal Thought: Strategies for Reform’. Hawwa: Journal of Women in the Middle East and the Islamic World 1(1) (2003): 1–28. Mir-Hosseini, Ziba, Lena Larsen, Christian Moe and Kari Vogt (eds). Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition (London: I. B. Tauris. 2013). Mir-Hosseini, Ziba, Mulki al-Sharmani and Jana Rumminger (eds). Men in Charge? Rethinking Authority in Muslim Legal Tradition (London: Oneworld, 2015). Shaikh, Saʿdiyya. ‘In Search of “Al-Insan”: Sufism, Islamic Law and Gender’. Journal of the American Academy of Religion 77(4) (2009): 781–822. Wadud, Amina. Qurʾan and Woman: Rereading the Sacred Text from a Woman’s Perspective (New York: Oxford University Press, 1999).

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Part IV

State and power

21 Islamic law and the state in pre-modern Sunni thought Ovamir Anjum

Introduction Islam began with a political triumph. The conquests of its first generation bequeathed it an empire of its own. As the conquest state fragmented, the Islamic society that it had created survived. One defining feature of that society, or more precisely, that network of kingdoms and cities that ultimately came to span a vast expanse from West Africa to Southeast Asia, was Islamic law. Kingdoms, empires and ethnic and tribal groups that manned them rose and fell. With the exception of the founding state of the Prophet at Medina, the law preceded the ruling regimes both temporally and logically. Whereas this double priority of law over the rulers is hardly disputable since after the third/ninth century (the watershed moment that symbolized the triumph of the Sunni ʿulama was the mihna of Ahmad b. Hanbal), the history of the formative period up to that point is less established. This formative period had witnessed the gradual consolidation of the law and a distinctive elite, the fuqaha¯ʾ (sing. faqı¯h), associated with it, and the role of the state versus private juristic circles and schools. Apart from the tendency of all origins to be shrouded in the paucity of sources, the rapid and continuous revolutions of modernity as well as the ideologies and powers of orientalism have created knotty conceptual problems for Islamic history that more recent scholarship must, if ever imperfectly, strive to resolve.

1 Key concepts 1.1  Umma, ulu ¯ al-amr, siya¯sa A common starting point to discuss the notion of ‘Islamic state’, or, more precisely, ‘Islamic governance’ in the pre-modern period is the assertion that Islamic sources say precious little about norms of governance and the state. It has been suggested that concepts in the Qurʾan are only ‘quasi-political’. This perception of a lacuna may simply be a result of the conceptual imperialism of the modern nation-state on our reception of the Islamic past. In fact, if by ‘political’ is meant the concern for, management and redistribution of resources within a well-defined community, the Qurʾan, not to mention hadith literature, is replete with 357

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political concepts, including even those that are distinctive to Islam, such as rejection initially of honorifics commonly used to refer to kings for centuries in the Near East, such as malik or sult․a¯ n, and the unprecedented use instead of amı¯r and khalı¯fa.1 More importantly, the notion of a community (umma), well defined by the end of the Medinan period, complete with imperatives and measures for the ongoing coherence and unity of the community, with intra-communal rights (e.g. Sura 49) defined distinctly from those pertaining to the outsiders (e.g. Sura 5). This self-understanding is reflected in the so-called ‘Constitution of Medina’, whose import is aptly summed up in Michael Lecker’s meticulous book-length study of the document, which concludes: The Kita¯ b is a unified document rather than a series of documents. It is made of two clearly defined parts, one including the treaty of the Muʾminu¯n, or the Muhajiru¯n and the Ans․a¯ r, and another including a non-belligerency treaty with the Jews. The Arabs of Medina who were still idol worshippers were not part of it, and the same is true of the majority of the Jews of Medina, including the main Jewish tribes Nad․¯ı r, Qurayz․a and Qaynuqa¯ ʿ … The tribal system remained in place; as long as there were tribes there were also agreements, formal and informal, guaranteeing common responsibility and cooperation between their members.2 In sum, the overall teachings of the Qurʾan contextualized against the backdrop of the Prophet’s mission construct the umma as a ‘super-tribe’3 and tacitly approve the prevailing Arab custom with significant and gradual modifications, and as such, a ‘state’ of sorts is constructed, as normative in its import as any other legal institution in the Qurʾan. By the end of the Medinan period, the prevailing tribal system was supplanted by a mitigated form of clan-based but centrally governed society which tolerated a large measure of flexibility and self-government (but not, strictly speaking, autonomy, as norms eventually were all based in the logic of the divine authority). It is evident in the Qurʾanic imperatives pertaining to criminal (2:178, 5:38; 17:33), commercial (e.g. verses prohibiting usury), marital, testamentary and inheritance laws (Sura 4). This was a ‘system’ inasmuch as its various parts cohered with and complemented each other, and worked toward to the singular goal of the realization of ‘the best community raised for humankind’ (3:110). Perhaps the most important, and certainly most discussed, among the Qurʾanic political imperatives was the authority of the ulu¯ al-amr – those in possession of amr (4:59, 4:83). The political upheavals of the first century seem to have led to a gradual depoliticization of Qurʾanic interpretation. The exegetical history of verse 4:59 that commands obeying ‘those in authority from among you’ is revealing in this regard. According to reports in the exegesis of al-Tabari attributed to ʿAbdullah b. ʿAbbas (d. ca. 68/688 or 70/690), this phrase usually indicates the leaders of missions and delegations. Six reports indicate that ulu al-amr refers to leaders or rulers (umaraʾ) and another 12 reports indicate that it refers to scholars. Tabari goes on to conclude that ulu¯ al-amr must indicate rulers on the strength of three general hadith reports that require obeying the ruler.4 From a historical perspective, the latter interpretation could not have been intended at the time of revelation, as no recognizable class of scholars (ahl al-fiqh, ahl al-ʿilm or ʿulama¯ ʾ) existed in the Prophet’s life apart from the leaders of missions and expeditions; only when the Prophet was not available to judge would obedience to ‘those in authority’ make contextual sense. The verse, therefore, is best seen as establishing the principle of deputization of the Prophet’s authority in his absence. The same principle could be extended temporally, that is, after the demise of the Prophet. The conduct of the Prophet’s Companions, reflected in Abu Bakr’s succession as a leader of the umma but not a 358

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prophet, and his war against the backsliders (ahl al-ridda), therefore, is most plausibly seen as being in step with the Qurʾanic political vision. In hindsight, this ‘political system’ hit its first snag in the succession of the Prophet, for which, according to the mainstream Sunni account, there was no specific guidance except if the general command to consult, shu¯ra¯ , is extended to cover this situation. There is no denying that when compared to, say, the meticulously elaborated distribution of inheritance, the Qurʾan is silent on the issue. Whether the Medinan community can be termed ‘state’ depends on which definition one chooses, that of intellectual historians or political scientists. European intellectual historians generally agree that it emerged in Europe between 1300 and 1600 due to a number of specific developments. What set it apart from any prior form of rule is the confluence of a number of conceptions that constructed the state as a ‘an omnipotent yet impersonal power’: 1) the state as a separate legal and constitutional order that governs, abstracted and distinct from the monarch or the officials who hold office; 2) being the sole source of law, exclusive of God, the Church or the Holy Roman Empire, within its own territory; and 3) the sole appropriate object of its citizens’ allegiance.5 Territoriality, abstraction (i.e. impersonality) and sovereignty, are thus held to be the necessary ingredients of the modern state. Unless the state ideology is identified as a national religion, secularity should also be added to the list of the modern state’s attributes. This ­m aximalist definition employed by European historians is to be contrasted with the more widely employed minimalist definitions, such as one offered by Charles Tilly, that sees ‘state’ as ‘coercion-wielding organizations that are distinct from households and kinship groups and exercise clear priority in some respects over all other organizations within substantial territories’.6 There is no doubt that the Medinan order represented such a ‘state’ by the time the Prophet passed away, one that was even further consolidated by the time Abu Bakr was finished with the wars of apostasy. Employing a minimalist definition, while convenient, may blind us to the enormous differences to our modern states that are better attended to by the maximalist definition. Students of Islamic law, even when disregarding the historians’ caution, must remember that the difference between a pre-modern state and the ‘modern state’ is not merely one of quantity (more power, more technology, etc.), but of quality. To sum up, the early Muslim community imagined itself as a single and singular community (umma) that has inherited the prophetic mission, whose affairs are managed by authorities from within it (ulu¯ al-amr), who must govern through consultation (shu¯ra¯ ) – well-known, militarized differences ensued, concerning whether the right to give consultation was shared equally by the believing community or limited to the Prophet’s tribe, Quraysh, or his immediate clan, Banu Hashim. This sense of limited self-government represents a conscious break from the Israelite tradition in the sense that God’s spokesmen now no longer ruled directly. This break is remarkable, for, in most ways, continuity with the Israelite tradition remained the rule. The Qurʾan referred to the Israelites frequently as an earlier community of Muslims from whose examples, both good and bad, Muslims were to learn. Yet, there is evidence in early Islam of the recognition of a categorical difference between Islamic and Israelite attitudes toward government or political power, for Islam’s prophet is the last one and his successors were neither divinely chosen nor guided in a direct sense. This break is expressed in the following hadith report: ‘The Israelites used to be led by prophets (ka¯ nat Banu¯ Isra¯ʾı¯l tasu¯suhum al-anbiya¯ʾ); whenever a prophet died, another followed him. But after 359

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me, there is no prophet, but there will be many deputies (khulafa¯ ʾ)’.7 The root s-w-s employed in this report to refer to the Israelite prophets’ shepherding and leadership of their people also provides the modern Arabic word for politics, siya¯ sa.

1.2  Governance (h.ukm, h.uku¯ma) Even though the modern notion of state as an entity apart from the rulers cannot be said to have existed, sophisticated abstractions and distinctions concerning power and governance did exist. Abu Hilal al-ʿAskari (d. ca. 1005/395 AH), an Arabic literary critic and rhetorician of Persian extraction, distinguishes between authority in abstract (mulk) and the group of individuals who come to possess it: ‘The difference between mulk (dominion, authority) and dawla is that mulk means power, the ability to coerce the majority of people, whereas dawla connotes the transfer of fortune from one group of people to another’.8 A few centuries later, Ibn Taymiyya (d. 728/1328) shifted the focus of legitimacy on the substance of government (i.e. its ultimate mandate to uphold the divine law) rather than the person of the ruler in judging legitimacy and nature of rule. Whereas the earlier Sunni theorists had imagined political legitimacy in terms of the inherited authority of the successors of the Prophet, continued when necessary through formalistic rituals, the Mongol destruction of the Baghdadi caliphate forced Ibn Taymiyya to articulate legitimacy in terms of the norms and mechanisms by which a ruler actually wields the power (al-shawka) necessary to uphold the law. Through a creative deployment of well-known verses and hadiths, he conceived of the people (i.e. Muslims) as a caravan obliged to appoint one of them as its leaders. Thus, to recall Walter Ulmann’s conceptualization of political transformation in early modern Europe, Ibn Taymiyya can be said to have articulated an ascending rather than a descending notion of legitimate Islamic politics.9 One element that decisively sets this evolved political vision apart from the modern concept of state is the latter’s territoriality and the secular sovereignty that is built into it.10 A missionizing super-tribe, ‘raised for humankind’, could accept territorial markers only as a contingency, as a second-order reality. A necessary feature of the modern state being its ability and sole prerogative to define the rights of its citizens in contradistinction to those of all others, there never developed, as far as I am aware, in Islamic law concepts and institutions by which the rights of Muslims of one region can be discriminated from those of others. For the reasons alluded to above, often the attempt to find equivalents of political terms of recent European origin in Islamicate languages without regard to the conceptual framework has led to the omission of crucial facts. The family of words that attended political discourse in Islamic history included terms such as siya¯ sa (politics, policy), sult․a or sult․a¯ n (authority; ruler), khila¯ fa (successorship or deputyship), mulk (dominion, kingship) and dawla (dynasty, reign), and last but not least, al-amr (ulu al-amr, amı¯r, ima¯ ra, imra). This last is the most difficult to accurately translate, for amr could mean any matter, affair or command, but its linguistic generality has often confused unscrupulous readers. For, as Muh․ ammad ʿIma¯ ra (2009) has shown, it was the most frequently used term that was employed to refer to the ‘collective matter’, ‘political rule’ or ‘government’. As for government, the contemporary word for it in contemporary Arabic and other Islamicate languages is ․huku¯ma. The root ․h-k-m in Arabic has the original meaning ‘to restrain or prevent someone from acting in an evil or foolish manner’ or ‘rein in [a horse]’. Since pre-Islamic times, ․hukm (another infinitive noun from the same root) has been used to refer to judgment, arbitration, passing sentence, decision making, and, in later Islamic history, political authority or government. In the Qurʾan, the derivatives of the root ․h-k-m that are 360

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relevant to governance and arbitration are ․hukm, ․hikma and ․hukka¯ m. H ․ ukm connotes the act or power of judgment, which in the ultimate sense is said to belong to God alone. Indeed, it is attributed only to God in the Qurʾan with a few exception where al-h ․ukm refers to the divine wisdom (or set of divine judgments) given to prophets (Q. 6:89, 19:12, 45:16). Since the Seljuq period (fifth/11th century), the term ․huku¯ma denoted the office or function of governorship, usually provincial or local, and this usage continues into the Ottoman period. By the end of the 18th century the word seems to have acquired the more abstract sense of rule, the exercise of political authority, or the institutions of government. In what follows, Islamic history is periodized with respect to the development of political and legal institutions into four eras (early caliphate, imperial caliphate, sultunates and gunpowder empires), which are then outlined, followed by legal developments pertaining to governance in each period.

2  Development of political and legal institutions 2.1  The early caliphate Despite its diversity in different times and places, pre-modern Islamic governance was based on a number of distinctive administrative institutions and practices. Under the governing logic of Islam, these institutions were largely adopted and adapted from the pre-Islamic Arab tribal and monarchical traditions and the Sasanian and the Byzantine empires. The first recognizable administrative institution has been traced to the practice of the second caliph, ʿUmar (r. 634–644), who reportedly established the public treasury (bayt al-ma¯ l), understood as public wealth as opposed to private ownership, by two measures: setting aside conquered lands as property of all Muslims rather than just the participants in the conquest, and establishing a register or bureau (dı¯wa¯ n) after the Sasanian model, in order to deal with the collection of taxes and recording stipends (ʿat․a¯ ʾ) of Muslims. The register increasingly included expanding functions pertaining to the governing and taxing of the conquered sedentary peoples. The Muslim policy of conquest comprised two principles: preventing damage at the hands of the conquering armies – especially the ones fighting the Sasanians, as they consisted of chiefly nomadic tribes not used to relations with city dwellers – to the established Iranian cities and their agricultural system, thus disturbing the conquered populations as little as possible religiously, socially or administratively, and seeking the cooperation of the previous elite in governance. The first principle was underpinned by the Qurʾanic injunction of ‘no compulsion in religion’ (2:255) allowing religious autonomy to the ‘people of the book’, a general pattern actualized by the Prophet himself in his pact with the Jewish and pagan tribes of Medina, to leave each tribe to live by its own religion and tradition and form an alliance of mutual defence with authority of final arbitration resting in the Prophet. The overall effect was that, rather than settle as agriculturalists, Muslims in this era were to engage in governance and carry on further conquests. To prevent the Bedouins from raiding indiscriminately or destroying the productive agricultural lands and to segregate the Muslim Arabs from the conquered non-Muslims, the Bedouins were settled in garrison cities called ams․a¯ r (sing. mis․r), the three earliest ones being Basra and Kufa in Iraq and Fustat in Egypt; a little later, others such as Qayrawan in Tunisia and Marv in Khorasan were established. The old elites and the administrative machinery of the Byzantine and Sasanian empires were incorporated into the new regime. Non-Muslim scribes retained their jobs and served the new rulers. The old landowners, chiefs and headmen kept their authority in the villages and assisted in 361

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collecting taxes. The Umayyads maintained a dı¯wa¯ n al-khara¯ j where revenue was brought in from the provinces and recorded before being deposited in the bayt al-ma¯ l (treasury). Apart from these basic principles and practices, the relationship between the caliphate and the conquered peoples varied, due in part to the treaties and deals that were made with the chiefs or rulers during conquest. The old city-state status that had been the unit of political organization in Mesopotamia, Syria and Egypt since antiquity was replaced by a central administration that appointed governors. The governor oversaw the collection of tributes and taxes, supervised the distribution of stipends, led the Muslims in prayer and war, and disseminated religious knowledge among Muslims. In the more remote areas or where the strong resistance of the old rulers had earned them favourable arrangements, only annual tribute was collected, at least for a time. In Iran, Muslims established garrisons in or near established cities such as Hamadan, Isfahan, Qazvin, Rey, Nishapur and Marv. In Iraq, the Sasanian chancery (dı¯wa¯ n), the old system of collecting taxes and distributing stipends, was adopted, and the taxes included both a land tax (khara¯ j) and a poll tax for non-Muslims ( jizya). Non-Arab converts to Islam were absorbed into the old clan structure as clients (mawa¯ lı¯, sing. mawla¯ ) into a multigenerational, symbiotic relationship, in which loyalty and protection were exchanged, along with social capital such as knowledge (many of the chief scholars of Islam had been clients of Arab scholars), marriages and economic benefits, but the superior status of the old Arab clan was retained. We do not possess any legal treatises from the period, nor are there dedicated jurists; law and policy are indistinguishable, and the provenance of both is the practical decision making of the caliphs and their advisers, or their appointed governors and qadis in the provinces or garrison towns (see 2.2 ‘The imperial caliphate’). By and large, the appointment of these officials was based on their excellence and precedence in Islam, but also merit and lineage, in a manner continuous with the pre-Islamic Arabia.

2.2  The imperial caliphate: the Umayyads and the early Abbasids The Umayyads (661–750), and more particularly the Marwanid-Umayyads (684–750), with important exceptions, attempted to fashion the caliphate as an Arab phenomenon against the  threat to their interests posed by non-Arab conversions to Islam, and were ultimately toppled. There is little reason to think that the Umayyads altered the Rashidun’s practice of appointing qadis among the capable men who judged by their knowledge of the Qurʾan and the Prophetic tradition (not yet codified as hadith). Until the third quarter of the first/seventh century, the jurisdiction of the qadi was limited to the garrison towns and to the resolution of disputes among Arab tribesmen and their families and clients; only with the Umayyads it began to extend to the surrounding countryside and to the towns inhabited by Christians, Zoroastrians, Jews and others.11 The most extraordinary Umayyad, and the most important for the development of I­ slamic law, is ʿUmar b. ʿAbd al-ʿAziz or ʿUmar II (d. 101/719), who is seen as having righted all that had gone wrong in the Umayyad practice since the pious early caliphs, thus earning the honorary title ‘Fifth Rightly Guided Caliph’, and becoming the yardstick against which all the vices of the Umayyads could be measured. There is little reason to doubt the general outline of the account of ʿUmar II’s life and reforms, which, even if exaggerated, depicts how the second/eighth century ʿulama¯ ʾ, when these accounts were reduced to writing, saw their political predicament.12 Among his many remarkable policies, the most crucial one was to put into practice the proto-legal tradition that he had studied in the circles of Medina, as well 362

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as authorize the collection of Prophetic tradition (hadith) at large. As such, perhaps only in a symbolic sense, he fathered both fiqh as public law and hadith, the former by emboldening private scholarly circles to consider it their business to comment on the functioning of the empire and its courts. Within a generation after his passing, although the Umayyad rule ended, the socio-religious leadership of the private juristic circles became a force to reckon with; within a century, the caliph-appointed qadis could not but be members of these juristic communities. The rise of the formal legal communities or madhhabs, characterized by some scholars as guilds of law, can be traced to third/ninth and fourth/tenth centuries. The early Abbasids (749–945), although rejecting the Umayyads’ Arab-centred conception of rule and restoring a universalist Islamic basis for legitimacy, inherited the personnel and traditions of the Umayyads and the early caliphs, who had in turn adopted and adapted the Byzantine and Sasanian practices in granting tax revenues in return for military service. In contrast with the Umayyads, the Abbasids focused on consolidation rather than expansion, professionalized the army, and over time embraced their role as leaders of a loose, multi-­ ethnic empire, constituted as a coalition of intellectual and provincial elites. It was an empire primarily of cities, which in turn were divided into many walled communities, which makes it difficult to speak of a ‘society’ in its modern sense, and should be employed only to mean a collection of communities. The level of bureaucratic control over peasants, semi-­ sedentarized villagers, nomads and mountain peoples was naturally rather limited. The caliph was vested with the authority to rule on behalf of the Muslim community, and from him all other offices drew their authority; in practice, of course, challenges to the authority of the caliph were constant. The directly controlled provinces were Iraq, Egypt, Syria, western Iran and Khuzestan. The term wazı¯ r first applied to the high secretaries close to the caliph, but by the middle of the ninth century, the office of the wazı¯r headed all administration and drew from established families that often succeeded in passing it on hereditarily. The Sasanian registers, or bureaus (dı¯wa¯ n), were further developed into the dı¯wa¯ n al-rasa¯ ʾil (chancery), dı¯wa¯ n al-khara¯ j (tax collection), and dı¯wa¯ n al-jaysh (payment of salaries); later, there also developed from these bureaus the dı¯wa¯ n al-azimmah (internal auditors or controller’s office), dı¯wa¯ n al-tawqı¯ʿ (countersignature), and barı¯d (the official messenger and information service). A different kind of elite, the ʿulama¯ ʾ, in particular the Hanafis, served as judges (qud․a¯ t, sing. qadi). To ensure provincial loyalty to the centre, several means of check and balance were employed in times and places where centralization could be achieved, such as frequent rotation of governors (wula¯ t, sing. wa¯ lı¯), a practice established early on by the second caliph ʿUmar, and division of functions, such that the governor served as the military commander, a representative of the central treasury (ʿa¯ mil) oversaw financial affairs, and the qadi drawn from the ʿulama¯ ʾ class performed a range of functions besides dispensing justice, all being subject to the oversight of the barı¯d. Local government was minimal, limited to taxation, hierarchically divided into rusta¯ q (also called dı¯h or qarya; sub-district, consisting of a market and an administrative town, surrounded by villages); larger geographic units were called ku¯ra and tassu¯j. In addition to the cultivated lands that were privately owned and taxed, there were two other kinds, the crown lands that belonged to the caliphate and those ceded to individuals on a revocable basis, called iqt․a¯ ʿ. One kind was iqt․a¯ ʿ tamlı¯k, usually created out of wastelands for the sake of stimulating agricultural investment with a three-year grace period and other incentives; such lands ended up becoming private property. Another kind was akin to tax farming, iqt․a¯ ʿ istighla¯ l, when an insolvent caliph received a sum of money equivalent to the tithe (ʿushr) for the period in question, in return for the right to tax the peasantry at a higher rate. The sum thus received was used to finance administration, pay off political debts, and 363

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offset budget deficits or pet projects. Tax collection was enormously demanding on a bureaucracy suited for communication and record keeping; it required visiting the villages with a team of specialists including those who could survey, estimate, adjudicate disputes (qadis), register deeds, provide intelligence and extract, violently if necessary, the revenues. This would be impossible without the cooperation of middlemen, called aʿwa¯ n (helpers), who were the local headmen (raʾı¯s and dihqa¯ n in Iran, shaykh al-balad in Egypt), who were prone to pocketing commissions from either side. Family ties, extended by patronage, were crucial to this system. Against this institutional backdrop, the burgeoning circles of Muslim jurists found two major areas of normative intervention, court practices or judicial procedures, and taxation. When one browses the legal literature of political interest from the period, whether surviving or mentioned in lists, the most common titles are Kita¯ b al-Kharaj (The Book of Taxation), Adab al-Qadi ( Judicial Conduct) or some variant of these names. Some of the chief surviving treatises of the kind, which can be considered the earliest dedicated treatises of Islamic law concerned with governance from this period, are: Abu Yusuf (d. 182/798), al-Kharaj and Adab al-Qadi; Yahya b. Adam (d. 203/818), al-Kharaj; Ibn Qutayba (d. 276/889), al-Qada’; and al-Wakiʿ (d. 306/918), Akhbar al-Quda. In addition, numerous comprehensive collections of traditions, precedents and law addressed the role of political authority (sult․a¯ n) in various direct and indirect ways. In this vein, a common observation is the increasing of depoliticization of fiqh in the following sense. The four surviving Sunni schools of jurisprudence eventually absorbed all others. The eponymic founders and hence founding milieus of the Hanafi and Maliki schools can be traced to the first half of the second/eighth century, or the Umayyad period, and the two younger schools, Shafiʿi and Hanbali, were formed in the Abbasid period. The role assigned to a legitimate political authority in resolving disputes and making policy is notably greater in the two older schools, whereas the two younger ones, the Shafiʿi in particular, limits the discretion and policy-making powers of the ruler, formalizing the roles of both the imam or caliph as well as the qadi. Put differently, the attitude of the jurists becomes depoliticized over the course of the second/eighth century onward, as the ideal of a legitimate, pious, accountable government appears more out of reach.13

2.3  The early medieval period: the sultanates 2.3.1  The period of military patronage rule After the loss of Abbasid power and the fragmentation of the empire to provincial warlords starting in the late fourth/tenth century, the caliphate was slowly recast as a symbolic office (see 2.3.2 ‘The Sunni caliphate discourse’). The Seljuqs, who came in as converts to and saviours of Sunni Islam, ruled through a mix of Persianate bureaucracy and central Asian tribal ruling custom. As all other horseback warriors of the period across Eurasia, they were unable to maintain a central empire, and moulded the iqt․a¯ ʿ system of the late Abbasid times into a system of financial administration that, under various names, was later adapted by the Mamluk, Mongol, Timurid, Ottoman, Safavid, Uzbek and Mughal empires. The iqt․a¯ ʿ, tima¯ r, tuyu¯l and ja¯ gı¯r (names for grants of tax revenues) all represent a similar principle of decentralized financial compensation to the military elite. Other examples of administrative uniformities among Muslims states are taxation on a khara¯ j-jizya or land- and poll-tax basis, and the endowment of waq fs for religious purposes. In many cases, as in Central Asia and North Africa, these uniformities were due to the direct transfer of Middle Eastern 364

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institutions, but in many others, they were due to the inheritance of similar institutions from earlier non-Muslim regimes, and to the adoption of a common Muslim terminology for separate precedents.

2.3.2  The Sunni caliphate discourse As noted earlier, the caliphate was theorized as a vital institution when it could not be taken for granted; the most elaborate Sunni defence and elaboration of caliphate dates from the fifth/11th century, composed primarily in the discipline of Sunni kala¯ m, no doubt in response to the threat posed by the Shiʿi rebels and warlords who took power nearly everywhere except, ironically, Persia. Baghdad, the seat of the caliphate and the intellectual centre of Islam itself fell to the Shiʿi Buyids (932–1062). Not that any authority ever doubted the obligation of an imam (leader) for the community; all Muslim sects and schools, including the Sunnis as well as the Shiʿa, consider the installation of an imam (also called caliph for the Sunnis) a religious obligation. The difference is that the Shiʿa consider it part of their creed, meaning that without giving one’s allegiance to the true imam one cannot be considered a proper Muslim, whereas Sunnis consider it an obligation, which means that establishing the caliphate is an obligation on the community ( fard ․ kifa¯ ʾı¯), but not doing so results in a sin rather than invalidation of one’s faith.14 In addition to the caliphate literature produced by the ʿulama¯ ʾ in a theological vein (discussed below), far more relevant in practice was the legal discourse which required the ruler to uphold the law and intervene in the regular functioning of the society in various ways. Finally, there was what could be called the statecraft literature, including ‘mirrors for princes’, which addressed the rulers or their administrators, authored often by the rulers, state officials and the ʿulama¯ ʾ. Whereas the caliphate discourse concerned itself with foundational and constitutional matters, and discussed theological and legal rulings pertaining to the governance of the Muslim community at large rather than a particular territorial unit, the legal discourse, as well as the statecraft literature, often merely addressed a Muslim authority with power to uphold the law, whether a legitimate caliph or local warlord. One of the earliest and most well-known statecraft treatises in the Perso-Islamic tradition was Siya¯ sat-nameh (The Book of Politics), also known as Siyar al-Muluk (Lives of Kings). It has been attributed to Hasan b. ʿAli of Tus, known as Khwa¯ ja Niz ․a¯ m al-Mulk. During the sultanate period, the statecraft was a mix of Sasanid-Persian, Central Asian tribal and Islamic models, and is reflected in the political advice literature, in particular the mirrors for princes genre.15 Central Asian nomadic tribes, whether Turkoman or Mongol, had been hierarchically organized and hence their clash with Persian statecraft had been less than with the original Arab egalitarianism, which had for all purposes been already tamed, but not eliminated, by the Persian tradition. Variants of this statecraft could also be found throughout the Muslim world. In this sense, even though the statecraft of the period addressed concerns other than those addressed by the orthodox discourse, the sources as well as norms of the two genres clashed in some ways. For instance, the Sunni theory does not see the caliph as ‘God’s caliph’ nor give precedence to the caliph’s interpretation on disputed points of law, and exhorts caliphs to resort to the teachings of the salaf, as evident in Abu Yusuf ’s Kitab al-Kharaj. The statecraft literature, in contrast, had no qualms describing the king or sultan as God’s deputy, as ‘God’s shadow on earth’, ‘God’s caliph’ and as absolute in his powers. At times, the very same author would represent two directly opposing viewpoints depending on the genre, as evident in the case of al-Mawardi discussed in the following section. 365

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2.3.3  Mawardi and al-Ahkam al-Sultaniyya Al-Ahkam al-Sultaniyya (henceforth, Ahkam) by Abu al-Hasan ʿAli al-Mawardi (364– 450/974–1058) has long been considered an authoritative expression of the classical Sunni theory of caliphate. Mawardi was an eminent Shafiʿi jurist, chief judge of Baghdad under the Buyids and a caliphal envoy and adviser. He was a thinker of great significance and some originality who knew politics both in theory and practice and was read widely not only in Islamic but also Greek and Persian ethical and political traditions. Ahkam was authored during the last few years of his life and reflects the formal Sunni approach to the caliphate, and is to be contrasted with the statecraft literature authored earlier by Mawardi, which draws on a wide array sources and in some ways contradicts the vision of politics portrayed in Ahkam. In Ahkam, Mawardi for the first time brought together the theological issues of the imamate and role of the caliph or imam with the jurisprudential matters in one discrete treatise. After Mawardi, there began to appear, although not consistently, brief chapters on the imamate in standard juristic works among the Shafiʿis and Hanbalis. Owing particularly to his concession to legitimize a usurper in ikhtiya¯ r (election of the ruler), Juwayni also chastised him on this and other points. Modern commentators have seen Ahkam as attempting to legitimize the status quo and legalize the illegal. Subsequent Muslim writers on the subject, including al-Juwayni, also chastised him on this and other points. Of the 20 chapters of Ahkam, the first two cover theological debates, while the rest cover administration and governance and typically present, along with his own Shafiʿi school, Maliki and Hanafi opinions on any given matter. Curiously, Mawardi’s Ahkam leaves out the Hanbali school. This neglect perhaps prompted an equally celebrated contemporary, the Hanbali al-Qadi Abu Yaʿla al-Farraʾ (d. 458/1066), to author a treatise carrying the exact same title and chapter organization but comprising only Hanbali opinions and rejecting some of Mawardi’s key innovations. Abu Yaʿla’s treatise is unfairly considered an unimaginative copy of Mawardi’s treatise. The differences between the two works are significant, and attributable to a different ideological outlook. Abu Yaʿla is consistently more ‘idealistic’ and closer to the earlier Sunni view –maintaining the early ideal of the caliph as the representative of the Muslim community at large. Mawardi’s contribution was extraordinary in other ways as well. The Sunni caliphate discourse had been created almost exclusively by Ashʿari theologians as Sunni polemics against the Muʿtazila, the Shiʿa and the Kharijis. Mawardi’s primary intention, however, was neither theological defence of the Sunni view of early history and political authority nor to carve out a more coherent or accurate doctrine of caliphate from among the various opinions. Rather, it was the defence of the existing Sunni caliphal institution against the possibility of irrelevance or extinction. He therefore sought to project an aura of general agreement among the Sunnis and moved the debate from the realm of theology to the realm of practice and jurisprudence. To that end, he made a few subtle but significant innovations in his approach to the standard issues. 1) One key contention of the Ashʿari theologians had been that the imamate is an obligation known by revelation, not reason. Mawardi’s view was closer to that of the Muʿtazila and that is why he states both opinions without committing to any, thus avoiding provocation. 2) In an innovation that changed the very nature of the institution of caliphate, Mawardi states that power can be lost via ․hajr (rebellion by insiders of the government), or qahr (rebellion by outsiders of the government). This was an unveiled concession to the Buyid, 366

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and possibly the upcoming Saljuqs. Mawardi’s overall direction is in the case of the agency that appointed the next imam. On this question, there were two central issues: the identity and qualifications of those who elected the caliph (ahl al-h ․all wa-l-ʿaqd, lit. those who loosen and bind) and whether the caliph could be appointed through testamentary designation by the reigning caliph (nas․․s). The proper way to appoint the next caliph in Sunni doctrine had been election by some number of electors followed by an oath of allegiance (bayʿa) by all Muslims. Mawardi lists the following opinions about the identity of the electors: a pledge of allegiance (bayʿa) by the majority of Muslims, election by at least five of ‘those who loosen and bind’; by three of them (based on an analogy to marriage with the judge and two witnesses), and finally by only one, which Mawardi bases on a report that ʿAbbas told ʿAli that if he (ʿAbbas) pledged his allegiance to ʿAli, the whole community would follow. Of these four opinions, the only one Mawardi rejects out of hand is the first one – ironically, the only one that could potentially lead to actual substantive confirmation of the caliph’s authority by involving the Muslim community. But, realistically, it could thereby threaten the ritual nature of the process Mawardi was advocating. The reason he offers for this rejection relies, in a typical Ashʿari and Shafiʿi fashion, on the elevation of a historical anecdote to the level of a formal principle: since the involvement of the entire Muslim community was not needed in the case of the appointment of Abu Bakr by the Prophet, it could not be a requirement. Similarly, in the early phase of the caliphate discourse, there existed significant disagreement about whether testamentary designation was an independent means of appointment. The Muʿtazili scholars consider it invalid altogether. Sunnis such as the Maliki Abu Bakr al-Baqillani and the Hanbali Abu Yaʿla al-Farraʾ considered it valid if followed by bayʿa by the electors, thus effectively reducing its value to nomination. ʿAbd al-Qahir Tahir al-Baghdadi considered designation legitimate but without explicitly specifying whether the confirmation by the electors is necessary. Mawardi was the first to not only claim a consensus on the issue but also to consider designation a method of appointment independent of confirmation by the electors. Three aspects of Mawardi’s caliphate theory stand out as distinct from what his predecessors and contemporaries wrote on the subject: 1) he moves the discourse of caliphate from theology to jurisprudence; 2) he sanctifies and ritualizes the imamate by allowing the separation of caliphal authority from effective power to govern; and 3) the community completely disappears from his theory. Mawardi’s interest is to wed theory to reality and sustain the caliphate as much as possible, and so he makes the formal aspect of the appointment a ritual that is easy to carry out. That his political programme looks odd and unrealistic is not because it is divorced from practice, but precisely because he was trying to wed theory to practice without challenging either too much.

2.3.4  Post-Mongol developments The late medieval era or post-Mongol period is largely continuous with the early medieval period in its institutions and ideas. An important institutional development was the rise of military slaves (mamluk; pl. mama¯ lı¯k) as rulers in the Syro-Egyptian world. On the whole, the 367

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Mamluk period (our chief concern being the Sunni world) is quite conservative, in which the most consummate works of Sunni scholarship are produced. Non-conformity was successfully repressed or ignored, which is why the potentially remarkable political ideas of Ibn Taymiyya had limited immediate impact on practice and scholarship. As noted earlier, Ibn Taymiyya stands out for his emphasis on the law rather than the individual ruler as the primary object of political allegiance. In the process, he reconciles the two separate strands of political thinking in Islam: the orthodox strand of the caliphate discourse which upheld the absolute obligation and necessity of the caliphate on the one hand, and the actual statecraft driven by power, expediency and petty politics on the other. For Ibn Taymiyya, an Islamic government was not only a matter of ritual continuity with the past, but also a direct requirement of scriptural imperative, grounded in the obligation of the Muslim community to ‘command right and forbid wrong’. It was an obligatory institution, furthermore, whose basic parameters could be broadly determined by the scriptural texts and the practice of the rightly guided caliphs; any institutional developments after this normative period he considered relative and non-essential.16 Other important political thinkers of the period include the Maliki jurist Shihab al-Din al-Qarafi (d. ca. 684/1285), who laid out in perceptive detail the differences between the respective authorities of the ʿulama¯ ʾ as juristconsults (muftis) and as judges (qadis), and of the ruler as the political authority (h․a¯ kim), all governed by the law.17 The most renowned and creative of political thinkers of this period, and of all times, was the Maliki jurist and historian ʿAbd al-Rahman Abu Zayd b. Khaldun (d. 809/1406), whose Prolegomena to his voluminous history of the Islamic world has been seen as a pioneering contribution in the philosophy of history and social sciences.18

2.4  The gunpowder empires: Ottomans, Safavids, Mughals In the early modern period, nearly the entire Muslim world came to be reconsolidated, after centuries of dispersion into smaller kingdoms, into three large empires: the Ottoman, Safavid and Mughal. While on the intellectual plane, even in administrative practices, there is little that was drastically new, each of the empires erected strong centralized bureaucratic institutions unprecedented in their coherence since classical Abbasid times, and the general populace achieved a considerable level of prosperity. Of the three, the Mughals of India were the grandest and most populous, but also the shortest-lived. Central supervision reached its peak in the Ottoman Empire. The rulers of all three empires shared Central Asian stock: the Ottomans were Oghuz Turks whose ancestors had immigrated to Anatolia after their Seljuk cousins had settled in the old Islamic lands; the ancestors of the Safavids hailed from Azerbaijan, near the Caspian coast, and the Mughals traced their ancestry to Tamerlane (Timur Lang), who was proud of his mixed Turkish and Mongol lineage. Among Central Asian tribes, the rule of succession was that there was no rule, and the tradition continued even as they ruled mainly sedentary empires. The Ottomans even employed fratricide at first to eliminate the threat of competition, a practice common between 15th and 17th centuries. The Safavid succession relied on a more peaceful contest in an assembly of the chief courtiers to choose which son would succeed after the monarch’s death. In any case, unlike earlier military patronage states, centralized power was highly valued and none of the empires were allowed to be parcelled between the male heirs of a monarch as had been the case among the Seljuqs. The leadership of the Sunni world, contested briefly by the Mughals, fell to the Ottomans when they vanquished the Mamluk rulers of the central Arab regions of Syria and Egypt. The caliph residing in Cairo was decommissioned and the title of caliphate claimed by the Ottoman sultan for himself. 368

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In administration, the Safavids built on pre-existing Turko-Persian patterns, whereas the Ottomans created distinct military and civilian offices out of the diverse populations they ruled over in Anatolia and Eastern Europe; Turkish was established as one of the official languages in the Ottoman court and literature alongside the rich and ancient Persian. Eventually, Turkish largely replaced Persian in bureaucracy and literature and Arabic in religious discourse. But this did not mean privileging Turkic ethnicity, and ethnic Turks were limited in their political and military roles, opting often to advance through madrasa education to become ʿulama¯ ʾ or scribes. For the military-administrative elite, the Ottomans created a new ‘Roman’ race, a new blend, Turkish-speaking and Muslim, but from non-Muslim, non-Turkish origins. Ottoman writers took pride in how the Ottomans took the best qualities of many nations and blended them into a new, superior race. The Ottoman state was the rule and reign of the sultans, but in an important sense it was a conglomeration of all the households, the sultans’ as well as those of this ‘Ottoman Roman’ elite. In contrast, the Safavid Empire centred on a charismatic sha¯ h, seen as divinely anointed and even divine by some of his early followers; this conception abated with the death of Shah Ismaʿil in 1524. The Ottoman–Safavid military rivalry lasted from 1578 until 1639, when a treaty was concluded. In both empires the emperor needed to bolster revenues for military ends; military service was rewarded through temporary revenue grants (tima¯ rs, the Turkish equivalent of iqt․a¯ ʿ) – a system that had been in place since Abbasid times. The rulers’ own revenues mostly came from customs duties on international trade and commercial taxes, and so increase in foreign trade enhanced the ruler’s revenues, hence the age-old tradition of building caravanserais, bridges and roads to facilitate trade, and providing security at mountain passes and river crossings. Both empires learned from each other: the Safavids discovered that ideology alone will not guarantee success; the Ottomans realized that administration was not sufficient, and over the course of the 16th century various ideological bases were posited. While the Ottoman rulers had claimed to be ‘commanders of the faithful’ earlier on, the conquest of Egypt in 1517 and confrontation with the Safavid ‘heretics’ led them to emphasize the sultan as the caliph, the leader of the Sunni world. Süleyman I Kanuni (the ‘Lawgiver’; d. 1566) wanted to ensure that his sultanistic edicts were fully in accord with the Shariʿah, and by the end of the century, the sultan was presented routinely as the champion of Sunni Islam. Prior to 1600, the ‘classic’ Ottoman rule was based on the principle of an egalitarian agrarian society. The peasants were allocated plots of equal productivity sufficient for a family. In the Ottoman realm there were about 50,000 cavalrymen and several hundred provincial officers who lived close to their revenue sources alongside peasants and townsmen. The holders of larger revenue grants were distant in proportion to the size of the grant in both empires. The Safavids allowed their Turkoman commanders to hold large land grants in the provinces. After 1600, the more efficient and superior Ottoman system that had relied on large number of small-scale holdings came to resemble the Safavids as the need for revenue and military expenses against the Safavids and Habsburgs put pressure on the Ottomans to make larger grants. The power and protection of the Ottoman state, which reached individual subjects directly before this time, now devolved upon civic, religious or ethnic communities. A crucial difference between the two empires – the Mughal Empire resembling the Ottomans in this respect – was the position of the ʿulama¯ ʾ. The Shiʿi ʿulama¯ ʾ were empowered by the religious ideology of the Safavid realm, and after the founding dynasty lost its sway, the ʿulama¯ ʾ’s power, based on secure religious taxes in the Imami school (khumus) and economic grants, only increased, whereas the Ottoman ʿulama¯ ʾ, by contrast, had become state functionaries. An Ottoman qadi administered not only Shariʿah to Muslims but also the sultan’s ­qa¯ nu¯n law to all subjects. To be considered for the judiciary, the ʿulama¯ ʾ had to not only 369

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follow the Hanafi school that the Ottomans preferred but also learn Turkish and join provincial rotation. This put an end to the Arab ʿulama’s traditional role of socio-religious leadership that had long acted as a check against political abuse.

2.4.1  The poll tax on non-Muslims (khara¯j, jizye or jizye-i sherʿ ¯) ı in the Ottoman Empire Sanctioned by scriptural text (nas․․s) and juristic convention, as asserted in the firma¯ n, jizya was for the Ottomans a religious tax whose collection and spending had to be done with special care. It was collected as a rule directly for the state treasury. As a sharʿı¯ tax belonging to the bayt ma¯ l al-muslimı¯n, its administration was put under the supervision of the qadis and not infrequently its actual collection was made by them. The jizya revenues were usually spent for military purposes. Exemption from jizya was usually made in return for military services. In accordance with the Shariʿah the Ottoman government always exempted from jizya children, women, disabled and blind men, and the unemployed poor. Earlier, monks (ruhba¯ n) and clerics were exempted from jizya, but in the reform of 1691 all able clerics were subjected to jizya. In 1692 the ruhba¯ n sent a petition to the sultan stating a sharʿı¯ opinion about the necessity of the exemption of those ruhba¯ n who were in retirement and not earning their own living, but it was rejected on the basis of the differing opinion of Imam Abu Yusuf. Like the first Muslim conquerors of Egypt and Syria, the Ottomans used varied administrative modes of collecting jizya, in some cases identifying previous taxes as jizya (as in Hungary). When a conquered land was to be organized as an Ottoman province, a census of people subject to jizya was made by the qadi appointed there, and a book called defter-i jizya-i gabra¯ n was drawn up and two copies made, one for the central treasury and the other for the provincial administration. Islamic jurisprudence distinguished two kinds of jizya, that fixed by ․sulh ․, agreement, the amount of which could not be altered (called by Ottomans the fixed jizya, or maqt․u¯ʿ), and that levied from individuals, al-jizya ʿala al-ruʾu¯s (poll tax). Considering the basic sharʿı¯ character of the poll tax, the government often insisted on its payment individually. On the other hand, the maqt․u¯ʿ might become too onerous when the population of such a group for one reason or another decreased. In such cases a new census was often asked for, to reduce the amount or to return to the payment by individuals. The maqt․u¯ʿ system of jizya, however, came to be more and more extensively applied in the period of decline, during which the central government had increasingly lost control of tax collection in the provinces. It was the sultan’s responsibility to declare every new year the rates of jizya to be collected on the basis of a fatwa given by the Shaykh al-Islam, who determined it according to the sharʿı¯ scale. The wealthy, middle-income and poor paid 48, 24 and 12 dirhams respectively; payment could be made in silver and gold coins in circulation. If a non-Muslim visitor (musta¯ ʾmin; one given ama¯ n) prolonged his stay in the Ottoman dominions longer than one year he was treated as a dhimmı¯, subjected to jizya. Later on under the capitulations, the Ottoman government became more and more tolerant in this matter. Corruption appeared in the form of bribery; collectors could allow the wealthy a lower rate and force the poor to pay higher, or burden the people for their expenses, or be unduly harsh. The Tanzimat decree of 1839 brought a new concept of citizenship to the society of the Ottoman state: the idea that both the Muslims and the Christians living in the empire were to be treated as equal before the law. This involved the question of taxation, including the khara¯ j, which there was pressure to abolish from Western diplomats in Istanbul. A decision 370

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on this was only made after the 1856 reforms, when both khara¯ j and jizya were abolished, and instead non-Muslim subjects were to pay a tax in lieu of military service (bedel-e asker).

2.4.2 India A recognizably Islamicate administration that more or less replicated the dı¯wa¯ n system developed under the Abbasids was introduced into India during the rule of the Ghaznavids, whose seat of administration was at Lahore, and the administration was organized under it into as many as ten different departments. This system of government seems to have been fully developed during the sultanate period, as we find quite a number of departments in existence. The question of the levy of jizya in India is contested, and there is evidence that it was not normally levied under the Dihli sultanate in the sense of a discriminatory religious tax. Under the Dihli sultanate, political conditions do not appear to have been apt for the imposition of a novel discriminatory tax by a minority upon a majority; authors employ jizya to mean tribute from Hindu kings. Efforts were made by Firuz Shah Tughluq (but the context suggests it was not distinguished from land revenue). In the Sayyid and Lodhi periods nothing is heard of the levy of jizya. There is mention of Akbar’s abolition of it, but it is dubious and appears to be panegyrical. Following a number of orthodox measures discriminating against non-Muslims, Awrangzı¯ b (d. 1707) imposed an unpopular jizya in 1679 on the urging of the ʿulama¯ ʾ; in this, government servants were exempted, and there were three rates of tax – owners of property worth 2,500 rupees were assessed at 16 rupees, those worth 250 rupees at 6 rupees 8 annas, and those worth 52 rupees were assessed at 3 rupees and 4 annas, the blind, the paralysed, and the indigent being exempt. Awrangzı¯ b’s successors largely abolished it; Muhammad Shah made a futile attempt in 1725 to restore it.

Conclusion The Islamic political model began as a religious community that became a conquest empire, but the law and society that the empire had created proved far stronger than the empire itself and survived the political fragmentation of the middle period that lasted from the fourth/ tenth to the ninth/15th centuries. The Islamic societies of this middle period learned to live with minimal dependence on government and political participation until the technological and geopolitical changes allowed the reemergence of large central empires. The sectarian differences that had crystallized in the early period proved decisive in this recrudescence, compelling the Safavids to forcefully adopt Twelver Shiʿism as the religious of the empire in order to mark their independence against the Ottomans. The idea of a single community under one imam was never realized any more than that of a perfect community or flawless believer, but this fact never compelled the ʿulama¯ʾ to relent on their ideal theory of politics, that of a single community governed by a single righteous and knowledgeable imam standing in place of the Prophet.

Notes 1 Aram Shahin, ‘Arabian Political Thought in the Great Century of Change’ (PhD dissertation, University of Chicago, 2009). 2 Michael Lecker, The ‘Constitution of Medina’: Muh․ammad’s First Legal Document (Princeton, NJ: The Darwin Press, 2004), 3–4. 3 Frederick Denny, ‘Umma in the Constitution of Medina’, Journal of Near Eastern Studies, 36(1) (1977): 44. 371

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4 Muhammad ibn Jarir al-Tabari, Jamiʿ al-Bayan fi Taʾwil al-Qurʾan, 24 vols (Cairo: Muʾassasat al-­ Risala, 2000), 8: 495ff. 5 Quentin Skinner, Foundations of Modern Political Thought, vol. 1 (Cambridge: Cambridge University Press, 1978), ix–x. 6 Charles Tilly, Coercion, Capital, and European States, AD 990–1990 (Malden, MA: Blackwell, 1990), 1–2. 7 Ovamir Anjum, Politics, Law and Community in Islamic Thought: The Taymiyyan Moment (Cambridge: Cambridge University Press, 2012), 50–60. 8 Ridwan al-Sayyid, Introduction to al-Mawardi’s Tas-hil al-Nazar wa-Taʿ jil al-Zafar (Beirut: Dar al-­ ʿUlum al-ʿArabiyya, 1987), 7, quoting Abu Hilal’s al-Furuq al-Lughawiyya. 9 Ovamir Anjum, Politics, Law and Community in Islamic Thought, 262. 10 Stuart Elden, The Birth of Territory (Chicago: University of Chicago Press, 2013). 11 Muhammad Khalid Masud, Rudolph Peters and David Powers (eds), Dispensing Justice in Islam: Qadis and their Judgments (Leiden: Brill, 2012). 12 Our oldest source on ʿUmar II is a work by a student of Malik, ʿAbdullah b. ʿAbd al-Hakam (d. 214/829), Sirat ʿUmar b. ʿAbd al-ʿAziz, ed. Ahmad ʿUbayd (Beirut: ʿAlam al-Kutub, 1984). 13 Ovamir Anjum, Politics, Law and Community in Islamic Thought; Patricia Crone, God’s Rule: Six Centuries of Medieval Islamic Political Thought (New York: Columbia University Press, 2004). 14 S. M. Hosayn Tabatabaʾi, Islamic Teachings: An Overview, trans. R. Campbell, 2nd edn (New York: Alavi Foundation, 2000); Ovamir Anjum, Politics, Law and Community in Islamic Thought. 15 Louise Marlow, ‘Advice and Advice Literature’, Encyclopaedia of Islam, ed. G. Krämer, D. Matringe, J. Nawas and E. Rowson, 3rd edn (Leiden: Brill, 2010). 16 Ovamir Anjum, Politics, Law and Community in Islamic Thought. 17 Sherman A. Jackson, The Constitutional Jurisprudence of Shiha¯ b al-Dı¯n al-Qara¯ fı¯ (Leiden: Brill, 1996). 18 ‘Abd al-Rahman Ibn Khaldun Muqaddima (Damascus: Dar Ya’rub, 2004).

Selected bibliography and further reading Anjum, Ovamir. Politics, Law and Community in Islamic Thought: The Taymiyyan Moment ­(Cambridge: Cambridge University Press, 2012). Cahen, C. ‘Bayt al-Ma¯ l’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2013), ed. P. Bearman, T. Bianquis, C. E. ­Bosworth, E. van Donzel and W. P. Heinrichs. Consulted online on 15 December 2018: http://dx.doi.org/10.1163/1573-3912_islam_COM_0109 Crone, Patricia. God’s Rule: Six Centuries of Medieval Islamic Political Thought (New York: Columbia University Press, 2004). Denny, Frederick. ‘Umma in the Constitution of Medina’. Journal of Near Eastern Studies 36(1) (1977): 39–47. Donner, Fred. Early Islamic Conquests (Princeton, NJ: Princeton University Press, 1981). Duri, ʿAbd al-ʿAziz al-. ‘Dı¯wa¯ n’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2013). Elden, Stuart. The Birth of Territory (Chicago: University of Chicago Press, 2013). ʿImara, Muhammad. Al-Islam wa-Falsafat al-Hukm, 3rd edn (Cairo: Dar al-Shuruq, 2009). Inalcik, Halil and P. Hardy. ‘Djizya’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2013). Jackson, Sherman A. The Constitutional Jurisprudence of Shiha¯ b al-Dı¯n al-Qara¯ fı¯ (Leiden: Brill, 1996). Johns, Jeremy. Arabic Administration in Norman Sicily: The Royal Dı¯wa¯ n (Cambridge: Cambridge University Press, 2002). Kunt, Metin. ‘Ottomans and Safavids: States, Statecraft, and Societies’. In A Companion to the History of the Middle East, ed. Youssef Choueiri (Malden, MA: Blackwell, 2005), 192–206. Lambton, A. K. S. State and Government in Medieval Islam: An Introduction to the Study of Islamic Political Theory: The Jurists (Oxford: Oxford University Press, 1981). Lapidus, Ira M. A History of Islamic Societies, 2nd edn (Cambridge: Cambridge University Press, 2002). Lewis, Bernard. ‘H ․ uku¯ma’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2012). Marlow, Louise. ‘Advice and Advice Literature’. In Encyclopaedia of Islam, ed. G. Krämer, D. Matringe, J. Nawas and E. Rowson, 3rd edn (Leiden: Brill, 2010). Masud, Muhammad Khalid, Rudolph Peters and David Powers (eds). Dispensing Justice in Islam: Qadis and their Judgments (Leiden: Brill, 2012).

372

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Sayyid, Ridwan al-. Al-Jamaʿa wa-l-Mujtamaʿ wa-l-Dawla (Beirut: Dar al-Kitab al-ʿArabi, 1997). Shahin, Aram. ‘Arabian Political Thought in the Great Century of Change’ (PhD dissertation, University of Chicago, 2009). Skinner, Quentin. Foundations of Modern Political Thought, vol. 1 (Cambridge: Cambridge University Press, 1978). Tabari, Ibn Jarir al-. Jamiʿ al-Bayan fi Taʾwil al-Qurʾan, 24 vols (Beirut: Muʾassasat al-Risala, 2000). Tabatabaʾi, S. M. Hosayn. Islamic Teachings: An Overview, trans. R. Campbell, 2nd edn (New York: Alavi Foundation, 2000). Tilly, Charles. Coercion, Capital, and European States, AD 990–1990 (Malden, MA: Blackwell, 1992). Tyan, Émile. Institutions du droit public musulman, 2 vols (Paris: Recueil Sirey, 1954–7). ʿUmari, Akram Diyaʾ al-. Madinan Society at the Time of the Prophet, trans. Huda Khattab, 2 vols ­( Herndon, VA: International Institution of Islamic Thought, 1991).

373

22 Concept of state in Shiʿi jurisprudence Amirhassan Boozari

Background: Sistani and the recent case of Iraq In the midst of the invasion of Iraq, when it became clear that Paul Bremer and the Coalitional Provisional Authority (CPA)1 had intended to exert their exclusive control over the constitution-making process, Grand Ayatullah Ali al-Sistani issued the following fatwa: These forces have no jurisdiction whatsoever to appoint members of the Constitution preparation assembly. Also there is no guarantee either that this assembly will prepare a constitution that serves the best interests of the Iraqi people or express their national identity whose backbone is sound Islamic religion and noble social values. The said plan is unacceptable from the outset. First of all, there must be a general election so that every Iraqi citizen – who is eligible to vote – can choose someone to represent him/her in a foundational constitution preparation assembly. Then the drafted Constitution can be put to a referendum. All believers must insist on the accomplishment of this critical matter and contribute to achieving it in the best way possible.2 With complete destruction of the Iraqi government and state organs, and the indisputable fact of a belligerent occupation of Iraq, the main legal arguments revolved around the concept of constituent power, what embodied it, and which international law theory the United Nation Security Council (UNSC) was to adopt for the legal return of territory to its original sovereignty. Two major theories could be used in this context: debellatio, adopted for the case of Nazi Germany after the Second World War, which assumed full sovereignty for the occupying power, including legislative and constituent powers; and Geneva IV in conjunction with the UN Charter and the right of self-determination, reinforced by the 1970 Declaration of Friendly Relations, which assumed a protected sovereignty under occupation for people, either maintained despite the dissolution of government or transferred back from the occupying power.3 The first theory would allow the belligerent occupier to author the temporary laws during the transition period and the future constitution, whereas the second theory disallowed such inclusive power of the occupying army. The issue was whether sovereignty depended on the government and absence of government meant absence of sovereignty, or the continuity of state was more than a legal fiction and generated uninterrupted sovereignty. 374

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It seems puzzling to a non-comparatist legal scholar to believe that Sistani, a traditionally trained high-ranking Shiʿite jurist, was capable of dealing with these issues. Nevertheless, Sistani’s juristic views turned out to be consistent with what the modern international law, and in fact UNSC, would require for the constitution-making process in Iraq. Whether it is because of the Sistani’s fatwas or the UNSC resolutions, the resultant constitution reflects more genuine autochthonous elements of the Iraq’s constitutional culture, with its own version of popular sovereignty, than what CPA originally intended it to be.4 Any bewilderment as to Sistani’s stance should be removed when one is reminded of the British colonial attempt in 1923 to impose yet another constitution in Iraq and the Shiʿite jurists’ much more militant opposition to it. The main objective in an Islamic constitutional theory of state is to uphold the Divine sovereignty and implement laws that most authoritatively represent it. In other words, these are meta-constitutional principles that are antecedent to any political theory. The practical issue, however, is the legitimacy of state and the extent to which it is capable of striking a balance between the rights and duties of the government and people. In the Shiʿi school, Imamate, with the exception of the Prophetic rule, is regarded as the most authoritative form of Divine representation and, thus, at the centre of any legal or political theory of state. However, as will be discussed, there is a gap between an ideal Imamate rule and the proximity of the outcome of realpolitik to such a model. Thus, in dealing with the existing political power, Shiʿi jurists have developed legal doctrines – most important of which being wila¯ ya – that not only maintain and reinforce the theological nature of Imamate, but also react to the historical realities on the ground. Apparently, in Sistani’s view, absence of a constitutive role for people amounted to violation of those pre-constitutional principles and illegitimacy of any government that it would produce.5

1  Imamate Founded on their interpretation of those Qurʾanic verses that pertain to kinship and succession to the prophets,6 Shiʿites strongly held that leadership of the Muslim community after the Prophet belonged to ahl al-bayt, the House of the Prophet, which consisted of a very limited group of Muhammad’s close relatives. Shiʿi theology does not deviate from the general definition of Imamate in Islamic jurisprudence and has characterized it as ‘riya¯ satun ʿa¯ mma fi ʿumur al-dunya¯ wa-l-dı¯n li-shakhs․in min al-ashkha¯․s nı¯ya¯ batan min al-Nabı¯’ or universal authority in both spiritual and temporal affairs which is bestowed to someone who is delegated by the Prophet.7 Two concepts need elaboration in this regard.

1.1  Divine grace According to Tabatabaʾi (d. 1981), the creation of man by God is designed to conform to those general rules of nature that spur evolution towards perfection and felicity, and man is guided through his divinely devised fit¸ra, an instinct that motivates seeking reality of the Divine and His creation.8 The Divine provides guidance through revelation, which includes commandment of duties; duties should be performed by man; man is endowed with rational faculty; in search for benefit or loss in acts employs practical reason and seeks approval and finds guidance in the revelation; Divine guidance entails His lut¸ f (grace) in assisting humanity to achieve highest virtues informed and advised through revelation;9 and the Imams are educators who provide correct interpretation of the revelation (Qurʾan) the 375

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prophetic teachings as well as correct rules of Shariʿah. Divine grace is also independently needed when human intellect, overshadowed by human desires and instincts or lack of indicators, is unable to determine every benefit or loss in the acts whose nature is not readily recognizable. Maintaining the intricate core of the God–man relation, the following supporting argument is quite illuminating. Completely comporting with human patterns such as taʾaddub (act of courtesy), Shiʿi theologians argued that, The divine’s lut¸ f is, among other reasons, mandatory because God finds out that a mukallaf would not perform a duty unless by being courteously invited to do so, absence of which would defy the intended benefit in the mandated act. It is similar to when you invite someone to dinner and know that your guest will not accept it unless you extend your invitation with civility. You do so because grace is required to achieve your goal.10 This type of argument was not intended to diminish the immense significance of performing Divine commandments; it was offered to emphasize all the rational consequences of what is known as human will: its necessity, existence and importance, which establish liability or reward for man in performance or non-performance of a mandatory duty; and amounts to belief in the ultimate justice in Divine judgments on Reckoning Day. In a more technical level, lut¸ f is defined as ‘anything with which one gets closer to obedience and distances him from sin, wherein neither enablement nor coercion is included’.11 Absence of enablement is required because lut¸ f should be devoid of merely enabling someone to get closer to obedience or push him back from disobedience.12 Nor should it be unyielding and coercive because coercion in performing mandatory duties yields no choice for one to incline towards or refrain from performing them. Therefore, when it is practically impossible for one to commit a sin, prohibiting an impossible act should not be counted as lut¸ f.13 Through a purely rational argument, Shiʿi theologians argued that grace is mandatory not upon God, but for God, subsequent to His Guidance: a means of obtaining the intended benefit of performing mandatory duties. Appointing Messengers is a mandatory grace because not only revelatory declaration of duties indicates the Divine guidance, but will it also help rational people to discover congruity between revealed commandments and acts that they find rationally mandatory to perform. Such assistance (lut¸ f ) can only be provided by appointing Messengers. In other words, existence of expressive mandatory duties is a grace provided for those who choose to perform mandatory acts over what is forbidden.14

1.2  Agency from the Prophet Agency from the Prophet in the Shiʿi thought was exclusively tailored for the 12 Imams who by the Divine intervention possessed characteristics of ʿis․ma (infallibility) and ʿilm (knowledge). Infallibility or immunity from sin and error was fundamentally a unique attribute of the Imams, whose esoteric essence could be verified by well-established rational arguments. A designated infallible Imam was to be the most learned of the Prophet’s descendents. The Imam was in charge of delivering correct interpretations of the Book, educating and rendering final decisions on anything ․hala¯ l (permissible) or ․hara¯ m (forbidden), determining right from wrong, and guarding Shariʿah from distortions and innovations as well as preserving its authenticity. 376

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Coupled with their infallibility, the Imams’ determinations were binding and mandatory. Mufid argued that the twelve Shiʿi Imams were the vicegerents of the Prophet, responsible for verification of the applicable Shariʿah rules; had to put in operation the divine rights (H ․ udu¯d Allah); defend the rules of Shara¯ yiʿ (every monotheistic Law); and guide human beings.15 The ʿAlla¯ mah summed up the previous jurists’ arguments and concluded that a fallible person could not be the protector of Shariʿah; his agency from the Prophet would have been futile; and his rulings, inherently predisposed to error, would not induce acceptance and consent from the faithful.16 The existence of the Imam, whose necessary presence was proven by both textual and rational evidence, was viewed as an incumbent graceful act of Allah and any lapse thereof would have been similar to forsaking the Muslim community and depriving it of a spiritual guide who would lead in accordance to His Law. After the passing of the Eleventh Imam, the majority of Shiʿi theologians held that rightful succession belonged to Mahdi, his son, and that Mahdi, also known as Qa¯ ʾim (one who rises), is not only the last Imam, but also the promised one who would remain in occultation (starting 261/874) as long as his rise and ascent to the final leadership of the umma is decided by the Divine. Accordingly, Shiʿi theologians conclude that congruence between the continued grace of God in His Guidance and the permanent existence of a guide (Imam) leads to two major results: 1) the Imam is the Divine’s apparent exoteric proof for Muslims17 – ʿaql (human intellect) being the Divine’s hidden esoteric proof;18 2) the Imam, present or hidden from the eyes of onlookers, is the ultimate source of legitimacy whose leadership and rulings are approved by Allah – at no time can ultimate leadership and guidance be bestowed on others and, notwithstanding one’s acceptance or pursuit, performance of his rulings is mandatorily incumbent on Muslims.19

2  Nature of Imamte in Shiʿi jurisprudence: wila¯ya The Imams’ comprehensive knowledge of Shariʿah was uniquely characterized to establish certitude in full understanding of the essence of legal issues and arrive at rulings that met with the intended truth of Laws promulgated by the Divine, technically called kashf wa¯ qiʿ.20 Evidently founded on the concept of taklı¯f, it was inherently within the Imam’s extensive authority or wila¯ ya to determine licit from illicit, and the incumbent duties of the faithful. The idea is that the Imams would only provide rulings on general matters and principles, ‘whereas inferences in details and minor precepts for actual cases were left to the learned followers of the Imams’.21 A certain degree of non-Imam human agency allowance, famously known as Ijtiha¯ d, is thus perceived to exist and intervene in not only correctly grasping what those general rulings entail, but also developing various theories attendant to the discovery of rules on newly encountered issues.

2.1  Practical reason: realm of politics Haʾiri Yazdi (d. 1999) believes that ‘governance, administration of state, and daily management of people’s affairs such as their economic and security needs, are all variables and substrata of ʿaql al-ʿamalı¯ (practical reason), constantly subject to change and oscillation’.22 Constant change, the governing rule of all empirical experiences, inevitably creates varied 377

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circumstances where the relation between those variables and general precepts of Shariʿah takes new forms, and every new form creates new issues subject to new rulings. Technically, recognition of the nature and specifications of subjects in Islamic law is usually made through, among other things, ʿurf wa-ʿa¯ da (social custom and habit) that can be either ʿa¯ mm (general) or kha¯․s․s (particular). In other words, social customs and habits define and delineate the contours of a subject. The sociological process in which customs and habits are established is heavily dependent on the type of reciprocal communicative actions or activities that the general public, or a class of people, adopt in order to adjust to or compromise with, or even create (semi-)legal constructs and notions for, their social and economic needs. These transactional actions are normatively influenced by every society’s predominant culture, which may or may not be at variance with its religion. This generative process functions beyond the juridical scope of authority as jurists are only authorized to engage in the attending process of arriving at suitable rulings. Public belief in the validity of and potential for obedience to such rulings heavily depends on the rulings’ level of harmony with those established contours. Us․u¯lı¯s hold that there is an original conformity between rational findings and the Divine commands, verifiable in the dialectical relation between ․husn (beauty) or what elevates the soul and qubh ․ (ugliness) or what causes its downfall, on the one hand, and rational people’s assessment of a certain act’s mas․lah․a (benefit) and mafsada (loss) on the other, which amounts to various degrees of congruity between the two. Therefore, people’s recognition of subjects through ʿaql al-ʿamalı¯ (practical reason) and recurrent practice of social customs and habits (determinations of rules) are indispensable elements of any juridical opinion. Politics and state embody adjusting and compromising communicative actions transacted between the ruler and the ruled that establish consent of the governed and justice in the legitimately imposed power, all being manifestations of practical reason. The main concept is ‘justice’. Similar to other transactions, there should exist a balance between the parties’ rights and obligations in politics. The Qurʾan clearly states that rising to establish justice is a charge laid on individuals, educated and guided by the prophets who have brought clear signs such as Book and Balance.23 The realm of practical reason, therefore, is primarily yet another locus for the Imam to educate and guide, awaken and warn, invite and train the people on the basis of what the Prophet, with his superior morality and sense of justice, taught by the Book. Shiʿi theology assumes a major trajectory in the progression of the Imam’s guidance to his political rule which reflects the vicissitudes of conjectural emendations of accomplishing justice in politics: after the Prophets, the Imam is the unsurpassable embodiment of the Divine grace, ‘his existence is an indispensable necessary component of an orderly faithful community’,24 and the right to rule normatively belongs to him. In order for people to draw correct inferences and conclusions of justice, they are obligated to obey the Imam’s verdicts on spiritual and temporal matters. As long as people lag in performing this duty, the conditions for his ascendency to power are not ripe yet. ‘We are responsible for his physical disappearance’,25 not him. Ultimate justice, in its vast entirety, will eventually be established by him only. In the meantime, people should keep expanding their understanding of, and earnestly endeavouring to struggle for, and adhere to, justice in every aspect of practical reason, including politics. In the realm of law, Us․u¯lı¯ jurists hold customary perception of justice as key to juristic determinations.

3  The Imams and politics The prevailing opinion among the Shiʿi scholars has always been that political leadership is within the Imams’ inherent rights to complete their wila¯ ya. The bifurcated nature of 378

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leadership, however, should scale more towards the spiritual–legal component than the temporal (political) component. With the uniquely specific case of the 12th Imam in mind, Shiʿi scholars collectively believe in a version of millenarianism, according to which Mahdi will certainly be very active in establishing justice, pursuing political power and retaking the reign from illegitimate oppressive sovereigns. Ali took the reign in one of the most turbulent periods of early history of Islam when the masses approached him to succeed a slain Caliph. Ali cited two reasons for his acceptance of political leadership: the people’s demand-­ commitment and the pledge from Allah with the learned to oppose the injustices of the rich and powerful imposed on the poor and weak.26 Ali’s invocation of popular demand and consent has clearly advanced it to a precept of legal and moral value that practically effectuated his right to political rule. Ali believed that power can be a predilection for despotism.27 Upholding the Prophetic rule, he adhered to a contractarian model of governance where political rule is viewed as an agreement entered in to by the ruler and the governed in order to strike balance between the individual rights of the governed and the ruler’s right to be obeyed.28 Ali refused to make financial concessions, to the detriment of his rule, and adopted egalitarian policies by which everyone would get an equal monthly stipend from the treasury as long as they would not resort to armed opposition and violence.29 He instructed his appointed governor of Egypt: Infuse your heart with mercy, love and kindness for your subjects. Be not in face of them a voracious animal. Counting them as easy prey, for they are of two kinds: either they are your brothers in religion or your equals in creation.30 These are the main vectors of an Imamite rule.

3.1  Juristic interpretations of the Imam’s rule Theoretically, only the Imam’s rule can establish justice and fully represent the Divine sovereignty. Full-scale legitimacy of the political leadership is reserved only for the Imam. Illegitimacy of a non-Imam rule may only be partially remedied by as far as justice can be obtained. Jurists have usually viewed a just non-Muslim’s rule more favourably than an unjust Muslim’s one. These premises, however, did not create an articulated theory of public law, which remained an obscure part of fiqh well until the constitutionalist revolution of 1905. Beside the regular tasks, the prevailing traditional theory was that Mahdi had exclusive wila¯ ya over those major areas of law that Mufid had described as ‘putting in operation the ․hudu¯d Allah or divine rights’, such as the call for jiha¯ d (offensive war), anfa¯ l (booty gained without war), khums (a religious tax), zaka¯ t (alms-giving), Friday Prayer and the execution of ․hudu¯d punishments. In the context of Divine sovereignty, Divine rights can be defined as those Divine commands, ordained in the Qurʾan and supported by the Prophetic Sunnah, that are immune from transgression, to be upheld and regarded as a public duty that bind both ruler and the ruled. The traditionalist jurisprudence takes a mainly positivist approach to the concept of Divine rights and, thus, enumerates only those actions that are called for in the Book confirmatively. There is, however, another set of commands, expressed often in a rather apophatic-prohibitive form, that also deserves proper juristic treatment such as condemnation of oppression, usurpation of God’s omnipotent domination, arrogant assumption of self-sufficiency and denying obedience to God, acting in substitution of God, etc. That positivist approach was attuned with the Us․u¯lı¯ jurists’ theories, developed as legal maxims, which prohibited assisting an oppressor ruler. Those maxims included manʿ al-wila¯ ya 379

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min qibal al-ja¯ ʾir (general prohibition of seeking or obtaining agency from an oppressive ruler) and ․hurmat al-Iʿa¯ na ʿala¯ al-Ithm wa-h․urmat Iʿa¯ nat ʿala¯ al-z ․a¯ lim fı¯ ․zulmihi (prohibition of abetting an oppressive ruler and his oppression),31 and most recently, qa¯ ʿidat al-ʿada¯ la wa-nafy al-z ․ulm (principle of justice and negation of oppression). All such theories and legal maxims apparently revolve around the kind of authority that deals with the implementation of fundamental rules that govern the relationship between state and society where the state uses its coercive power to induce obedience. Shiʿi jurists, therefore, drew two conclusions: 1) in addition to personal conduct matters, Mahdi’s wila¯ ya extends to all those areas of public law that state regulates and administrates its subjects’ rights and duties as a community; and 2) the office of a non-Imam ruler, technically called ja¯ ʾir (lit. oppressor), is unjust and suffers from a legitimacy deficit as it usurps the exclusive authority of the Imam in delineating borders of the divine rights. Therefore, legitimacy is completely established only when the Imam holds the political power. In keeping with satisfying the Shiʿite communities’ need to social order and lawful obedience to the rules of Shariʿah, the pre-modern jurists derived from the Imams’ general rulings a form of general deputyship (niya¯ bat ʿa¯ mm) that would provide the jurists agency in determining rules of personal conduct. In the absence of the Imam, private law remained the exclusive jurisdiction of jurists in Shiʿite societies. Attempts were made, in the early stages of the Safavid dynasty (1502–1722), to resolve the ensuing conflicts of the absence of the Imam by assigning his religious authority to the most learned jurists and his political authority to monarchs. The main objective of this scheme, known as the just sultanate model, was to enforce the long-standing concept of rule of law by providing the leading jurist with a mainly legislative power that would bind and limit the monarchs’ administration of executive power. This model, however, was unable to resolve two major self-generated dilemmas: 1) Division of authorities would logically assume an extensive degree of distinction of religious and political questions. Where would the line of separation be drawn? What was religious or political? 2) With general deputyship from the Imams, there was little doubt as to the legitimacy of such high ranking jurists. Questions remained as to where the king obtained his legitimacy from. Would it be possible to arrive at anything remotely close to the idea of the Divine appointment of monarchs?32 Unsurprisingly, the just sultanate model was plagued with the despot kings’ overreach of power and the acquiescence of compromising jurists. At the later stages of the Qajar dynasty (1785–1925), it further proved dysfunctional when despot, corrupt and extremely incompetent kings failed to confront the expansionist policies of the Russian Empire that imposed two major wars against Iran, and the colonialist interventionism of the British Empire that never stopped impoverishing its economy deeper. The continued inefficiency, lack of competence and illegitimacy of kings practically created the potential for a wider scope of authority for jurists. Insofar as those deficiencies could be remedied with the complacency of jurists, both the borders of such wider authority and a stable balance of the relation of state and society would be less clear and achievable. The 1905–1911 constitutionalist revolution in Iran put an end to the actual life of this model. The just sultanate model was heavily challenged by the Muslim societies’ national movements against the tyranny of despotic rule of monarchs, colonialism, neocolonialism and the puppet regimes, with popular demands for political independence, rule of law and democracy. In the first decades of the 20th century, Us․u¯lı¯ jurists strongly supported, and at times took leadership of, the national movements in Iran and Iraq. While condemning all forms of authoritarianism, including religious despotism, and advocating individual rights, these jurists engaged in polemical disputes with the traditional supporters of the just sultanate model and strongly argued that in the absence of the Imam, the authority to attend to all the issues 380

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that would disatisfy God if left ignored and neglected, or ․hisba matters, belongs to the people. The concept of ․hisba originally relates to the laws of charitable protection of legal interests of those who are mentally or physically disallowed to decide on their ownership or financial rights, such as the insane or absentees. The scope of ․hisba emanated from the duties and rights attendant to the broader concept of enjoining good and prohibiting evil and became even more complicated with further sophistication of the Islamic state in the pre-modern era to the extent that it included administrative law. Therefore, a ․hisba matter, interplaying between right and duty, is intertwined with the concept of public duties in Islamic law. In a modern rendition of this concept, it is fair to claim that ․hisba matters are what we generally view as secular (temporal) affairs. The traditional juristic view holds jurists to be most qualified to take charge of ․hisba duties, followed by trustworthy non-jurist individuals. To the constitutionalist Us․u¯lı¯ jurists: 1) the authority to discharge many of these public duties belongs to the public, not jurists; 2) governance is a ․hisba matter and, therefore, the right to govern originates from and belongs to the people; and 3) the people have an inherent right to rebel and should be able to employ it against despotism and corruption of state, social and economic inequality, and resistance against aggressors to their homeland. 33 They also held that the scope of jurists’ authority is restricted to issuing fatwa and adjudication, and the rationale for prioritizing jurists in ․hisba matters, except for passing judgments, can only be justified if the juridical logic of qadr al-mutayaqqan (the least amount of certainty) is applied.34 While maintaining the legitimacy deficit of a non-Imam’s rule, the Us․u¯lı¯ constitutionalists’ sophisticated arguments found constitutionalism to be the closest model to Imamate and established the following theoretical precepts for any Shiʿi political model: 1) in the absence of Imam, ․ha¯ kimı¯yya (sovereignty) bi-l-ʾas․a¯ la wa bi al-Istiqlal (in principle and independently) belongs to the people; 2) thus, constituent power originates from the people and constitution is a contract that binds the ruler; 3) elected members of parliament represent the public’s role in the realm of practical reason; and 4) every piece of legislation which is not in apparent incompliance with the prohibitive rules of Shariʿah can be considered Islamic and should enjoy the status of legality. The last of these was the task of a supervisory committee of jurists, whose jurisdiction would be exclusively limited to the judicial enactments of parliament. The progressive results of the 1905–1911 constitutionalist revolution reverted to authoritarianism chiefly because of the external interventions of the two dominating Russian and British empires. The constitutionalist revolution was extremely successful and influential in unifying major parts of the Shiʿi jurisprudence, especially in muʿa¯ mala¯ t (contracts, torts, personal status) and adillat al-­ ithba¯ t (litigation and evidence), with the Iranian Civil Code, a major outcome which remains mostly intact to present. The disappointing impact of the constitutionalist revolution’s defeat was exacerbated by the decimation of the 1921 Iraqi resistance against the British Empire’s occupation. Furthermore, the devastating consequences of the Second World War in the Middle East met with little to no independent reactions from the Pahlavi kings (1925–1979) in Iran. Constant encroachment of the legislative power and co-opting its members by manipulated elections, dismantling the jurists’ supervisory committee and gradually but completely removing them from judicial positions, and a CIA–MI6-led coup against the constitutionalist Prime Minister in 1953 that reinstalled the fugitive king Muhammad Reza as practically a puppet were 381

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not only undeniable facts but also moving factors for the new generation of Us․u¯lı¯ jurists, led by Ayatullah Khomeini, to offer wila¯ yat al-faqı¯h (comprehensive authority of the jurist), which was primarily a minority view.

4 Wila¯yat al-faqı¯h and the issue of jurists’ expanded authority in the absence of the Imam 4.1  Wila¯yat al-faqı¯h Ayatullah Khomeini’s original views on wila¯ yat al-faqı¯h were mostly in tune with the constitutionalist model. A highly educated Us․u¯lı¯ himself, Khomeini deeply shared the Us․u¯lı¯ constitutionalists’ frustration of the sudden devaluation and, later, the complete dismantling of jurists from their constitutional supervisory duties. His political rendition of wila¯ yat al-faqı¯h was for the most part founded upon the Us․u¯lı¯s’ arguments against the just sultanate model where he rejected any level of legitimacy for monarchy and strongly resisted levelling the most diluted degree of legitimacy for Pahlavi monarchs, even in the case of social exigencies or political expediencies. He concurred with the constitutionalist jurists on the emergence of constituent power for the people and insisted on their key place in the stages of transition from dictatorship to a consolidated republic. Khomeini, interestingly enough, did approve of the first draft of the Islamic Republic’s Constitution, modelled after the French 1958 Constitution, which vowed for a presidential system and envisioned no major or special role for jurists in the political realm of the would-be republic. Despite the incorporation of wila¯ yat al-faqı¯h in the final draft of the 1979 Constitution and well into its amendment process, which began a few months before his death (1989), he remained loyal to his original legal opinion that obtaining the constitutional position of supreme leadership of a qualified jurist should be preceded by popular consent and acceptance. Finally, he joined the constitutionalist jurists’ opinion that parliament is capable of representing the public’s role in practical reason. In different conflicts that arose during his leadership between the Majlis (the Islamic Republic’s equivalent of parliament) and the Guardian Council (the Islamic Republic’s equivalent of the supervisory jurists’ committee), Khomeini decided that a parliamentary super-majority’s holding should overrule the Guardian Council’s veto and admonished the jurist members of the latter legislative body for their rigid interpretations of the Shiʿi jurisprudence.

4.2  The issue of jurists’ expanded authority in the absence of the Imam 4.2.1  Ijtiha¯d and issuing fatwas Ayatullah Khomeini originally agreed with the constitutionalist jurists, holding that in deciding on the scope of a jurist’s authority, in the traditional custodial scope of ․hisba matters, the logic of qadr al-mutayaqqan (the least amount of certainty) should be applied. The premises of the expanded authority of jurists in Khomeini’s theory are to be found in his relatively variegated reliance on the Us․u¯lı¯ doctrine’s designation of jurists as the exclusive holders of authority in issuing fatwa and adjudication. Us․u¯lı¯s by consensus hold that as a rationally established rule, mukallafu¯n depending on their religious knowledge are either individually capable of arriving at valid Shariʿah rulings for questions arising from discharge of duty or should mandatorily do taqlı¯d – commit to follow their chosen mujtahid’s opinions. Since an overwhelming majority of them needs to perform taqlı¯d, this rationale has become an indispensable part of the ordinary people’s religious and social life. In order to reach this 382

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general conclusion, however, Khomeini in his al-Ijtiha¯ d wa-l-taqlı¯d, set the following threshold foundations: 1) Islam is a comprehensive religion and the Divine text contains all the instructions and guidelines a man may need. 2) The Qurʾan is clear on the omnipotence of Divine sovereignty and every Muslim is charged with a mandatory duty to safeguard it. This means that political governance should be based on implementation of the rules of Islamic law. 3) It is impossible to believe that the text has failed to clarify the Muslim umma’s duties in the important matters of governance or to designate who should rule or pass judgment. Belief in such failures would be tantamount to a deviant declaration of the Divine text’s deficiency. 4) By being appointed as Messenger, Muhammad was given the authority to legislate and adjudicate. However, in order to complement his Divine mission, Muhammad was also appointed by God as a political leader charged with setting in operation the principles of a model of political rule that would best safeguard the Divine sovereignty. Failure to believe in Muhammad’s political leadership would similarly amount to declaring Muhammad’s mission incomplete. Therefore, it is imperative to also trace the legal implications of the Prophet’s political status in many of his statements and actions.35 Therefore, a mujtahid who is qualified to issue fatwa should be cognizant of all these points and take them into serious consideration when rendering his opinions. Although the constitutionalist jurists, in their writings on Ijtiha¯ d, did not make the exact political arguments that Khomeini put forth, it is hardly possible to imagine that they would disagree with him.

4.2.2  Qada¯ (adjudication) ˙ Khomeini was a staunch believer of the proposition that ‘law and adjudication are political’. 36 Theoretically, the legitimacy and validity of an issued fatwa does not necessarily depend on the Imam’s idhn (licence) and can be obtained from the Book and Sunnah as well as from reason and iʿtiba¯ r aw bina¯ ʾ al-ʿuqala¯ (the credit that should be assigned to the course of action that rational people adopt). According to al-as․l ʿadam wila¯ yat ah ․adin ʿala¯ ah․ad (the principle of absence of authority of someone over the other),37 classic jurists held that only a ․hukm (verdict) issued by either of the following two types of judges would legitimately lay restrictions on the disputants’ rights: qadi mans․u¯b (a judge whose office has been approved by the Imam);38 or qadi tah․kı¯m (a judge chosen and authorized by parties, who has obtained their consent to his verdict prior to proceedings).39 Both types of judges must be mujtahid and their competence as a just, reliable scholar of law who is qualified to perform Ijtiha¯ d must be verified by either of two ways: bayyina (the testimony of other just and reliable people); or shı¯ya¯ ʿ (obtaining a reputation as such in society).40 The source of people’s recognition of such qualifications, except for the highly specialized matter of Ijtiha¯ d, is the collective social and cultural methods that have been developed by their practical reason, which as mentioned before can be originally based on their religion or any other ways that the concept of justice would be comprehended. Without such verification, the candidate will not be allowed to issue a fatwa or pass a valid judgment. It is after such recognition that the issue of the Imam’s licence would be examined where evidence of such probative value should be presented that would sufficiently prove the existence of that licence for adjudication. Therefore, the validity and enforceability of a judge’s ruling, 383

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thus laying restrictions on others, is subject to this two-pronged verification. One last point is that a fatwa is technically incapable of overruling a judgment.

4.2.3  Who is h.a¯kim? In the Shiʿi legal jargon, the word ․ha¯ kim is used for both a presiding judge and a ruler. Khomeini opined that both applications refer to the Imam’s unified status. Furthermore, he opined that a certain class of jurists, by extension and because of their general deputyship from the Imam, is also qualified to act on behalf of the Imam in both capacities. The word not only derives from the same lexicographical roots as the word ․hukm, but also has legal and practical implications. A judge’s ․hukm (ruling) is definitive of the parties’ dispute and shares similarity with the finality of the Imam’s ․hukm in any Shariʿah issue. A ruler’s decision, at least in its typical sense, also enjoys legitimacy in resolving the conflicts arising from power politics. The Imam’s rule, in the Shiʿi perception, is endowed with equal authority in his exclusive jurisdiction of political power. Although Khomeini is much more confident in the judicial aspect of the concept, it is his employment of the political aspect, and the consequent equalization of the jurists’ agency with substitution of the Imam on its basis, that subjects Khomeini’s theory to other Us․u¯lı¯s’ critique. There are four Us․u¯lı¯ jurists upon whose ideas Khomeini structured his theory. The first is Ahmad al-Naraqi (d. 1281/1864), who is the progenitor of wila¯yat al-faqı¯h in its first rendition as a theory for the expanded authority of jurists. In the mid-1800s, when the signs of incompetency of corrupt government officials became more prevalent than before and adversely affected the laity’s lives in larger proportion, al-Naraqi, by invoking several traditions attributed to the Prophet and the Imams, argued that jurists are indisputably authorized to act on behalf of the Imam. Despite the fact that the theoretical scope of what al-Naraqi argued for was limited to traditional custodial issues of ․hisba law, his general argument was that in the absence of the Imam, any issue for which a jurist does not know who to designate as the right holder of authority, jurists would be the first and most prominent candidates.41 Second, Al-Ansari (d. 1281/1864), on the issue of the impermissibility of working for an unjust ruler, held that the nature of prohibition was directed against the acts of oppression committed by an unjust ruler, yet it was permissible if and as long as agency on behalf of such ruler provided an opportunity ‘al-qiya¯ m bi mas․a¯ lih․ al-ʿiba¯ d’ (to accomplish the best interests of Muslims) and ‘restitute an individual’s violated right’.42 Therefore, it became possible to argue that the oppressive characteristic of an unjust rule would be mitigated extensively when these objectives were achieved. This served as the foundation of the Shiʿi Us․u¯lı¯s’ view on the essence of governance. Third, Akhund (d. 1329/1911), the most prominent constitutionalist Us․u¯lı¯ leader, in his famous fatwas categorized the ․hisba matters with more clarity and sophistication in their much broader context as ‘the duty of recommending good and enjoining evil’, and expanded them to include political matters. Moreover, he held that all attendant duties fall in the jurisdiction of the constitutionalist parliament. Fourth, Naʿini (d. 1355/1936), a prominent constitutionalist Us․u¯lı¯, also characterized just rule by ama¯ na (trusteeship and assigning executive offices to trustworthy individuals) and resembled a just ruler to the executor of an endowed property, charged with utmost loyalty to its beneficiaries (the people) in safeguarding their rights and subject to their supervision.43 Al-Ansari and Akhund completely disagreed with al-Naraqi on the validity of many of the traditions that the latter had invoked, and strongly rejected any expansion of the jurists’ authority beyond issuing fatwa and adjudication. Naʿini had explicitly called for ‘equality and 384

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partnership of people with ruler in all sources of power and public wealth and reserved their right to control and hold him accountable’,44 which would practically leave the jurists with the essentially apolitical task of juridical supervision of the legislative enactments. Khomeini did not deeply engage in the technicalities of validity of the traditions cited by al-Naraqi. Instead, he argued for the all-comprehensiveness of Shariʿah and found it imperative to deny similitude of any other possibility. He held that the Divine legislation should be pure from any doubt of failure in providing the faithful with sufficient clarity in their duty to live by the laws of Islam, and in the absence of the Imam jurists are the only class of people who are capable of determining what those laws are. Apparently, restitution of violated rights, common interests, rules of trust and deciding on who is authorized to perform the public duty of commanding right and preventing evil are all legal questions that a jurist has to answer. Therefore, by utilizing terms of art in logic, Khomeini claimed that wila¯ yat al-faqı¯h is a concept whose tas․dı¯q (proof ) can be established by its tas․awwur (imagination). It goes without saying that Khomeini reserved all those matters that were within the exclusive jurisdiction of the Imam. One last issue would be what kind of jurist under which circumstances is bestowed with such vast authority and holds the centre of the legal, political and judicial universe of the Shiʿite society. Khomeini held that any just mujtahid is potentially an agent of the Imam. However, he argued that the designation of that jurist as a qualified candidate to hold political authority is similar to the designation of a jurist as a judge, with all its attendant verification processes.45 This verification is required, Khomeini argued, because a judgment should be capable of effectuation and practical implementation. Such execution cannot be accomplished unless the parties have submitted to the judge’s authority either because of the Imam’s permission or by their prior consent to a non-licensed judge’s decision. A judge can maintain his office as long as his qualifications remain intact. In other words, he will be disqualified when people find his conducts or rulings to be incompatible with piety, justness and sufficient knowledge of jurisprudence. All these limitations, in Khomeini’s view, applied to a jurist who holds the political power. Khomeini did not elaborate and is ambivalent on the specific issue of the Imam’s licence. It is possible to argue that in his early writings this question was resolved by the candidate’s status as aʿlam (the most learned) among all other qualified jurists and to present the proposition that, in Khomeini’s view, being the most learned is similar to having obtained the Imam’s licence. Verification of such learned jurists had roots in the concept of marjiʿiyya (being a source of emulation), which was well developed and practised in the Shiʿi religious culture. At later stages of life, after major Grand Ayatullahs refused to actively engage in politics, Khomeini held Ijtiha¯ d sufficient. The Imam’s licence, among other important but yet-to-be juristically clarified issues, has become a dividing factor between two competing theories in Iran. Proponents of the first theory, known as nas․b (appointment) – mostly active members of the political ­establishment – overstretch the textual indicators and hold that Ijtiha¯ d meets the standard of licence and appointment by the Imam. Whereas the nakhb (election) theory, supported mostly by non-partisan jurists, maintains that the appointment theory: 1) is ill-devised; 2) invokes weak traditions; and 3) fails to remain loyal to the very same rationale that Khomeini offered, which finds the people’s continued verification, consent and acceptance a key factor in not only the scope of jurists’ authorities, but also for the establishment of a just legitimate rule in the absence of the Imam. 385

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Simply, the election theory adheres to the constitutionalist Us․u¯lı¯ model. Muntaziri and al-Sistani are among the unsurpassable prominent figureheads of the nakhb theory. Obviously, Khomeini’s position as the Leader of the 1979 Islamic Revolution and later the Supreme Leader of the Islamic Republic was largely established and remained authoritative by both his aʿlamı¯yya (being the most learned) and immense popular support. Khomeini concurred with the constitutionalist Us․u¯lı¯s’ application of the least amount of certainty rationale in the sense that only a jurist whose qualifications have been verified by the people and has received their consent qualifies to hold both offices of political and judicial authorities. The most controversial opinion of Khomeini, which stands in complete opposition to the constitutionalists’ views, is the unlimited scope of a thusly designated jurist’s authority – ­excepting the exclusive authority of the Imam – which makes his theory subject to the critics’ vociferous objections. Al-Ansari remained a scholar only and was uninterested in anything political throughout his entire life, whereas the juridical reactions of Akhund, Naʿini and Khomeini were heavily informed by the tumultuous social and political conditions in which they lived. These dynamics remain vital in order to see which model will finally prevail: the constitutionalist Us․u¯lı¯ model or wila¯ yat al-faqı¯h. There is an important caveat: Khomeini’s theory has to pass the additional test of the socio-political impacts of his leadership during the first ten years of the Islamic Republic of Iran.

Notes 1 Paul Bremer was the head of the US-led transitional government in Iraq after the US occupation, 2003–2004. 2 Stefan Talmon, The Occupation of Iraq, Volume Two: The Official Documents of the Coalition Provisional Authority and the Iraqi Governing Council (London: Hart Publishing, 2013), 1421, Document 582. Fatwa was issued on 26 June 2003. 3 I do not intend to discuss these two international law theories at length here. It is suffice to say that the United States and the United Kingdom, according to UNSC Res. 1483, paras 4–5, had already placed themselves under the law of belligerent occupation. For further arguments and references, see, in general, Andrew Arato, Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq (New York: Columbia University Press, 2009), especially pages 25–8. 4 Arato, a Columbia university professor and prominent authority in constitutional theory, was apparently perplexed by Sistani’s influence. He wrote: ‘It is a great paradox of the recent constitutional history of Iraq that it was autonomous political and social action on behalf of popular (or populist) democratic constitution making that was to put an end to the open constitutional usurpation of the CPA, putting the process in a channel where it was arguably compatible with creatively interpreted international regulation’. See Arato, Constitution Making, 28. 5 See Talmon, Occupation of Iraq, 1422–3, Documents 584–6. 6 See, e.g., Qurʾan, 16:90, 17:26, 2:177, 2:215, 2:83, 4:36, 4:7–8, 9:23–4, 9:113–14, 4:135, 6:152, 33:6, and several other verses. For a reliable analysis, see Wilfred Madelung, The Succession to Muhammad: A Study of Early Caliphate (New York: Cambridge University Press, 1997), 1–27. 7 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 27; Hossein Modarressi, Khara¯ j in Islamic Law (London: Anchor Press Ltd, 1983), 155; Hossein Modarressi, Crisis and Consolidation in the Formative Period of Shiite Islam (Princeton, NJ: The Darwin Press, 1993), 6. Hereafter, internal citations in English sources are omitted. 8 Muhammad Husayn Tabatabaʾi, Shi’ite Islam, trans. and ed. Seyyed Hossein Nasr (Albany, NY: SUNY, 1977), 184. 9 Qurʾan 57:25 reads: ‘We have surely sent apostles with clear signs, and sent with them the Book and the Balance, so that men may stand justice’. 10 Hasan ibn Yusuf al-Mutahhar Al-Hilli (d. 726/1325), Kashf al-Murad fi Sharh Tajrid al-Iʿtiqad, comment by Jaʿfar Subhani (Beirut: Al-Amirat, 1427/2006), 109. 11 Ibid., 106 (al-lut¸fu huwa ma¯ yaku¯nu al-mukallaf maʿahu aqrabu ila¯ fiʿl al-t¸a¯ ʿat wa baʿdihi min fiʿl almaʿs․¯ı ya, wa-lam yakun lahu ․haz ․․zan fı¯ al-tamkı¯n, wa-lam yablughu ․hadd al-Ilja¯ ʾ). 386

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12 According to Shiʿi theologians, creation of water is not a Divine grace. True, it makes ablution possible, and by ablution one gets closer to perform an act of obedience (prayer). But water by and of itself does not induce ablution unless one decides to use it for ablution. 13 Mahdi Haʾiri Yazdi, Hikmat wa-Hukumat (London: Shadi Publishing, 1995), 136. 14 This is a brief description of what Shiʿi theologians-jurists have discussed on the concept of lut¸f and formulated it as: ‘ann al-taka¯ lı¯f al-samʿı¯yya¯ t alt¸a¯ fu fı¯ al-taka¯ lı¯f al-ʿaqlı¯yyat’ (revelatory duties are graces provided for [the intellect to discern] rational duties), Al-Hilli, Kashf al-Murad, 155. For more sources, see Amirhassan Boozari, Shiʿi Jurisprudence and Constitution: Revolution in Iran (New York: Palgrave Macmillan, 2011), 158 fn. 41. 15 Boozari, Shiʿi Jurisprudence, 36. 16 Ibid. 17 Ansari, ʿIma¯ mat,’ in Daʿirat al-Maʿarif-i Buzurg-i Islami¸ ed. Kazem Musavi Bojnurdi, vol. 10 ­( Tehran: Markaz Daerat ol-maʿaref-e Bozorg-e Eslami, 2001), 139. 18 Boozari, Shiʿi Jurisprudence, 14. 19 Muhammad Riza Al-Muzaffar (d. 1384/1964), ʿAqaʾid al-Imamiyya (Qum: Muʾassisat al-Imam Ali, 1417/1996), 309–12. 20 The phrase literally means ‘discovery of the truth in something’. For more, see Boozari, Shiʿi Jurisprudence, 10, 131–4. 21 Hossein Modarressi, An Introduction to Shiʿi Law: A Bibliographical Study (London: Ithaca Press, 1984), 24. 22 Mahdi Haʾiri Yazdi, Hikmat wa-Hukumat, 141. 23 Qurʾan, 57:25. 24 It is the prevailing opinion of the Imami Shiʿite jurists that a society without an Imam is on the brink of sedition, mischief and contention. For citations, see Boozari, Shiʿi Jurisprudence, 172, fn. 46 and 47. 25 Al-Hilli, Kashf al-Murad, 182. 26 Imam ʿAli, Nahj al-Bala¯ gha (Peak of Eloquence), trans. Sayed Ali Reza (New York: Tahrike Tarsile Qurʾan Inc., 2002), Sermon 3, 106. 27 ‘One who adopts despotism in opinion, gets ruined and he who seeks other individuals’ opinions, shares in their wisdom’. ‘One who attains power, becomes self-absorbed and ignores others’. Nahj al-Balagha, Short Remarks 160–1 (translations are mine). 28 Boozari, Shiʿi Jurisprudence, 53–62, especially 53–5. 29 Madelung, Succession to Muhammad, 275–7, 310. 30 ‘ʿAli’s Instructions to Malik al-Ashtar’, in A Shi’ite Anthology, ed. and trans. William Chittick (New York: SUNY, 1981), 69. 31 Boozari, Shiʿi Jurisprudence, 66–71. 32 For more on the just sultanate theory, see ibid., 37–43. 33 For a complete jurisprudential analysis of the constitutionalist Us․u¯lı¯ theory, and infra citations for it, see ibid., 45–152. 34 Major Us․u¯lı¯ figures such as Grand Ayatullahs Khuʾi and al-Sistani hold this view. Ayatullah Khuʾi also excludes adjudication from the jurists’ exclusive scope of authority and limits it to issuing fatwa only. 35 Ayatullah Khomeini, Al-Ijtihad wa-l-Taqlid (Tehran: Matbaʿat Muʾassisat al-ʿUruj, 1376/1997), 18–20. 36 Leslie Green in H. L. A. Hart, The Concept of Law, 3rd edn, intro. Leslie Green (Oxford: OUP, 2012), xv. 37 Boozari, Shiʿi Jurisprudence, 87. 38 Al-Allamah Al-Hilli, Irshad al-Adh-han ila Ahkam al-Iman, vol. II (Qum, Iran: Qum Seminary, 1410/1989), 138. 39 Abu Jaʿfar Muhammad b. Hasan al-Tusi (d. 460/1067), Al-Khilaf, vol. VI (Qum, Iran: Qum ­Seminary, 1407/1986), 241–2. 40 Ayatullah Khomeini, Tahrir al-Wasila (Tehran: Muʾassisat Tanzim va Nashr Athar al-Imam ­K homeini, 1412/2000), 825. 41 For a complete analysis of al-Naraqi’s arguments, see Boozari, Shiʿi Jurisprudence, 90–4. 42 Ibid., 66–70. 43 Ibid., 106. 4 4 Boozari, Shiʿi Jurisprudence, 104. 45 Ayatullah Khomeini, Tahdhib al-Us․u¯l, reported by Jaʿfar Subhani, vol. III (Qum, Iran: Ismaʿiliyan, 1382/1962), 575. 387

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Selected bibliography and further reading Ayatullah Khomeini. Tahdhib al-Usul, reported by Jaʿfar Subhani, vol. III (Qum, Iran: Ismaʿiliyan, 1382/1962). Hilli, Hasan b. Yusuf al-Mutahhar al- (d. 726/1325). Kashf al-Murad fi Sharh Tajrid al-Iʿtiqad, comm. Jaʿfar Subhani (Beirut: Al-Amirat, 1427/2006). Madelung, Wilfred. The Succession to Muhammad: A Study of Early Caliphate (New York: Cambridge University Press, 1997). Muzaffar, Muhammad Riza al- (d. 1384/1964). ʿAqaʾid al-Imamiyya (Qum, Iran: Muʾassasat al-Imam Ali, 1417/1996). Tabatabaʾi, Muhammad Husayn. Shiʿite Islam, trans. Seyyed Hossein Nasr (Albany, NY: SUNY, 1977). Yazdi, Mahdi Haʾiri. Hikmat wa-Hukumat (London: Shadi Publishing, 1995).

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23 Codification, legal borrowing and the localization of ‘Islamic law’ Guy Burak

This chapter seeks to explore the nature and implications of the codification(s) of Islamic law. In the scholarship on Islamic law and its history, the codification of Islamic law is often associated with ‘modernity’, legal borrowing and the rise of the nation-state across the Islamic world. The following pages are an attempt to examine the relationships between these terms and processes. The chapter is not a historical survey of the codification of Islamic law in different parts of the Islamic world, although I will refer to concrete examples. Instead, the essay will focus on the conceptual issues that figure prominently in the historiography of Islamic law, mostly in the 19th and the 20th centuries. The first section examines the idea of a code, as a historical phenomenon and as an analytical concept. Based on this examination, each of the following sections intends to discuss a different aspect of codification. The second section discusses the importance of states and non-jurists in the codification process and raises questions about the association of codification with ‘modernity’ and the modern period by looking at earlier, pre-modern codification projects that were initiated by rulers and states across the Islamic world. At the same time, the continuity across the ‘pre-modern’/‘modern’ divide draws attention to the semiotics of codification. Importantly, the involvement of states and the creation of legal spheres in which ‘Islamic law’ can be applied invite us to consider the impact these developments had on the very category of ‘Islamic law’. The third section turns to the meaning different actors attributed to codification in the modern period and situates the study of codification in the broader context of legal borrowing (or legal transplants). The forth section looks at the contribution of Islamic legal codification to the localization of ‘Islamic law’. The fifth and concluding section aims to explore how codification altered the public and institutional position of ‘Islamic law’.

1  The quest for a code Most accounts of Islamic legal codification point to the significance of the Ottoman experiments with codification over the course of the 19th century, starting with the Land and Penal Codes of 1858 up to the quite famous civil code, the Mecelle (or Mecelle-i Ahkam-i ʿAdliyye), two decades later. While scholars have been debating the extent to which the codes were 389

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‘authentically’ Ottoman or responses to European codification projects (a point that will be discussed in greater detail below), it is evident, as Avi Rubin has argued recently, that the Ottoman codification project should be understood as part of a global codification trend that took place simultaneously in several centres across the world.1 From the perspective of Islamic legal history, the Mecelle is of particular significance. Compiled by a committee of jurists led by the renowned jurist and statesman Ahmed Cevdet Pas¸a (d. 1312/1895), the Mecelle is frequently referred to as the first attempt of a state to codify Islamic (more specifically, Hanafi) jurisprudence. While some members of the Ottoman elite suggested translating the French Civil Code and applying it throughout the empire, the opinion of jurists who thought that the Ottoman civil code should draw on Islamic jurisprudence prevailed.2 The committee selected the opinions from ‘the most reliable works’ of the Hanafi school and, in some cases, the opinions that were ‘more suitable for the needs of our times’.3 Indeed, in the following decades and centuries, jurists across the Islamic world were inspired by the Mecelle and attempted to produce their own codes. The historical interest in codification has been mirrored in the historiography. Scholars of codification of Islamic law have devoted considerable attention to the emergence of legal codes throughout the Middle East and the Islamic world more generally. In their studies of codification of Islamic law, scholars have often looked for a specific type of document, similar to European codes (such as the Napoleonic legal code). In such a document, the contending views and multivocality of Islamic jurisprudence are suppressed in favour of a single opinion and the numbered articles are organized thematically. Moreover, significant aspects of Islamic jurisprudence, most notably rules concerning rituals (ʿiba¯ da¯ t), were not included in the code.4 However, different legal codes vary in the extent to which they cover the remaining spheres of law. Consider, for example, the late 19th-century Egyptian codification of personal status law (al-ah ․ka¯ m al-sharʿiyya fı¯ al-ah․wa¯ l al-shakhs․iyya). Inspired to a considerable extent by the French experience with codification of Islamic jurisprudence in Algeria earlier in the 19th century, Muhammad Qadri Pasha (d. 1306/1888), roughly a contemporary of the aforementioned Cevdet Pas¸a, published the Egyptian code of personal status according to the Hanafi jurisprudence in 1875, after a failed attempt by the Egyptian ruler Khedive Ismaʿil to initiate the compilation of a civil law code similar to the Mecelle in Egypt. In the following decades, several Egyptian codes that were based on al-Qadri’s code were published. Much like the Ottoman Mecelle, Qadri’s code was an attempt to ‘(re)construct […] Hanafi jurisprudence in the form of positive law, as a code’. 5 Intended as a reference manual in the newly founded Mixed Courts, the code drew heavily on what Qadri considered the predominant view (arjah․ al-aqwa¯ l) of the Hanafi school of law. In so doing, in the words of Kenneth Cuno, Qadri eliminated ‘the lack of uniformity [of Hanafi jurisprudence] so as to make Muslim family law legible to foreigners and Egyptians who were trained in French law’.6 Qadri’s code consisted of 647 numbered articles, which were divided into chapters and sections (138 pages in the printed edition). More importantly, the code stated the preferred rule, but did not dwell on the different opinions within the Hanafi tradition concerning the issue at stake or the jurists’ reasoning that led them to this ruling. In short, ‘Qadri’s code may have made Muslim family law appear to be an unvarying set of rules’.7 Consider the following example. Hanafi jurists had been debating the question of a woman’s right to arrange a marriage contract on her own. While some jurists argued that a legally capable woman had an absolute right to marry on her own except in the case of the unsuitability of the groom (in which case her guardian could intervene), others argued that the 390

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marriage was valid regardless of the unsuitability of her future husband. A third view argued that a woman could not contract a marriage on her own without her guardian’s consent. In his code, Qadri endorsed the view that a legally capable woman could contract her own marriage without the intervention of the guardian, assuming that her husband is suitable and that the dower is at the going rate. This was the preferred opinion at the time, but Qadri nevertheless did not mention the alternative views in the code. Moreover, codifiers at times transgressed the doctrinal boundaries of the schools of law. In some cases, codifiers picked rules from different Sunni jurisprudential traditions (a practice known as takhayyur or talfı¯q).8 In other cases, they chose to interpret the Qurʾan and the Prophetic traditions directly, while overlooking centuries of jurisprudential and hermeneutic debates among jurists.9 Although – or perhaps because – the legal codes considerably reduced the plurality of views of the different Islamic jurisprudential traditions, they enjoyed significant popularity throughout the Islamic world over the course of the late 19th and the early 20th centuries. This popularity may be understood in the broader, global context, in which legislators and rulers sought to propagate the ‘legibility and rationality’ of their respective legal systems. Avi Rubin has recently suggested that these developments, at least in the Ottoman case (but in other contexts as well), are rooted in the legal response to the growing economic integration of different parts of the Islamic world into the world economy in the 19th century and, in some cases, such as in India and Southeast Asia, in response to direct and indirect demands and expectations of the colonial authorities.10 By the mid-20th century, the legal code had become a norm. In 1948, for example, the Egyptian jurist ʿAbd al-Razzaq al-Sanhuri (d. 1391/1971) compiled another civil code, which was based on the late 19th-century codes and incorporated several rules that originated from the Sunni jurisprudential tradition. Syria (in 1949) and Libya (in 1954) based their civil code on al-Sanhuri’s code. At the same time, Iraq, Kuwait and Jordan’s codes were inspired by the Ottoman Mecelle, as were the codes of other Muslim countries, such as Malaysia.11 To conclude this section, it is worth pointing to two key issues that figure prominently in many studies of codification of Islamic law in the 19th and the 20th centuries. The first is the emphasis on the physicality of the code: students of codification have stressed, quite rightly, that the code’s mise-en-page and arrangement were evidently different from other genres of Islamic legal writing.12 Accordingly, most studies of Islamic legal codification in the modern period have looked for a document or reference manual with specific features. But it is quite possible that pre-19th-century jurists had a ‘codification mindset’ that did not result in a document or a manual. Instead, pre-19th-century jurists may have been interested in specifying the opinion within the school that jurists need to apply. In so doing, they, too, reduced in practice the multivocality of the Islamic jurisprudential tradition. In the Ottoman Empire, for example, members of its highly regularized learned hierarchy were expected to know what opinions and jurisprudential works to consult on specific issues, although the learned hierarchy never produced a code. The second issue that is often emphasized in studies of codification is the unidirectionality of the codification project. Studies of Islamic legal codification have tended to present a narrative, sometimes lamentingly,13 that leads from the plurality of voices and opinions in the pre-codified Islamic jurisprudential tradition to the succinct and selective nature of the code. This narrative has tended to overlook the commentaries that jurists wrote about the legal codes at least in the early decades of Islamic legal codification. Late Ottoman jurists, such as ʿAbd al-Sattar (who was also a member of the Mecelle committee) and Mesut Efendi,14 wrote commentaries on the Ottoman civil code in which they reinserted the 391

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code into the Hanafi jurisprudential tradition, in a similar manner to their colleagues in previous centuries with other abbreviated jurisprudential texts. To put it differently, some readers and commentators of the code who were well read in the Islamic legal tradition maintained the multiplicity of voices of the tradition in different genres. While most modern scholarship has tended to emphasize the emergence of the codes, much less attention has been devoted to the venues and genres that (re)introduced multiplicity of judicial opinions around the legal code.15 Parenthetically, one may add that relatively little attention has been paid to the resistance of jurists to the codification project over the course of the 19th and 20th centuries.

I. 1.1  Whose code and what ‘Islamic law’? In most histories of codification of Islamic law in the 19th and the 20th centuries, the state – be it an empire ruled by Muslims (such as the Ottoman Empire), a colonial state (as in North Africa, much of South East Asia, Central Asia and South Asia), or nation states with different political regimes – figures quite prominently as the driving force behind the codification project. For many scholars of Islamic law, the emergence of a state as a central legislator marks a major rupture in Islamic legal history. According to many narratives of Islamic legal codification, Islamic jurisprudence before the modern era (i.e. before the 19th century) was by and large the realm of the jurists ­(ʿulama¯ ʾ and fuqaha¯ ʾ). Accordingly, Islamic law is often referred to as jurists’ law to differentiate it from other legal regimes where the ruler (the king, prince or ‘the people’) is the legislator and an important source of legislative authority and legitimacy. According to this narrative, the predominance of jurists who were independent from the state/ruler in the process of law making shaped Islamic jurisprudential discourse. Rudolph Peters, for example, has argued that the jurists were involved in a scholarly debate, in which conflicting and often contradictory views were discussed ‘because of differences in understanding the texts and in the use of the hermeneutical tools, the Shariʿah as laid down by the jurists is not uniform’.16 The intervention of the state significantly reduced the plurality of views. Furthermore, Peters interprets the codification project as an attempt to subjugate Islamic law to the state: ‘Codification [ … ] implies that only the state determines what law is and that state law is the highest form of law’.17 In a similar vein, Aharon Layish has contended that ‘the codification of Shariʿah by Muslim legislatures [ … ] brought about the transformation of Shariʿah from “ jurists’ law” [. . .] to “statutory law” [ … ]. This transformation entails profound implications the importance of which is the deprivation of the fuqaha¯ ʾ of their “legislative” authority and its investment in secular legislature’.18 What is more, as has been suggested above, the codification of Islamic law enabled rulers and states to carve out specific legal spheres and spaces where the codified Islamic law could be applied, such as personal status law. By carving those spheres, as Husseyn Agrama has pointed out, ‘th[e] sovereign power of decision is, and has been, an expression of the state’s sovereign powers. This sovereign power of decision, in turn, is typically vested in state legal authority and the structure of the rule of law’.19 In other words, codification has to be perceived as a manifestation of the state’s sovereignty throughout the Islamic world, and the subjugation of the jurists to this perception of sovereignty. Moreover, as will be further discussed below, the codification enabled rulers and states to localize their version of Islamic law and bound it within the political boundaries of their polity. 392

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To be clear, the fact that states and rulers initiated the different codification projects does not mean that ʿulama¯ ʾ were not involved in those projects. To a considerable extent, their involvement was required to provide a sense of Islamic legitimacy to the codification projects. Doubtlessly, some jurists, like Cevdet Pas¸a, genuinely believed in the importance of producing an Islamic legal code and were involved in the compilation of the codes. The emergence of the code, however, meant that jurists were no longer the sole applicants of the Islamic jurisprudential tradition, and judges, who were not trained as fuqaha¯ ʾ/ʿulama¯ ʾ, could and did apply the code. One of the more significant outcomes of the processes I have surveyed thus far is that ‘Islamic law’ increasingly became a reified body of substantive rules. Therefore, one cannot easily speak about the ‘codification of Islamic law’, since the very notion of ‘Islamic law’ is a product of this codification.20 Paying closer attention to the role the state and legislators who did not hail from the ranks of the ʿulama¯ ʾ in the codification projects of the 19th and 20th centuries may also enable us to situate these projects in the broader context of the relationship between the jurists and rulers/ states throughout Islamic history. As Maribel Fierro has recently argued, Codification can also have a more general meaning, that of the creation of codes in the sense of compilations of written rules and regulations collected and arranged in a systematic way, usually by subject. Codification in this general sense did exist in the Muslim world, starting from the ‘canonical’ compilations of hadith (traditions of the Prophet) [… ].21 Indeed, attempts by rulers to intervene in the doctrines of Islamic jurisprudence and produce codes of sorts may be seen as early as the eighth century. Quite famously, the Abbasid vizier Ibn al-Muqaffaʿ (d. 139/757) tried (unsuccessfully) to convince the Caliph alMansur to produce a jurisprudential code for his empire.22 Furthermore, Fierro has pointed to attempts to codify Islamic law in the Islamic West. The tenth-century Fatimid caliph al-Mansur (r. 946–953), for instance, issued a compilation of laws that was fairly close to a legal code. However, these codification projects were the exception and not the rule in the pre-Ottoman (or, arguably, the pre-Mongol) period, as jurists asserted their independence from the rulers in determining the doctrines of Islamic jurisprudence.23 The post-Mongol period in the eastern Islamic lands (from the 13th century onwards) marks a new chapter in the history of the relationship between jurists and rulers. Elsewhere, I have suggested that the Ottomans and many of their post-Mongol contemporaries sought to regulate the doctrines within the Hanafi school of law that members of the imperial learned hierarchy were supposed to consult and apply. The citation practices of the imperial learned hierarchy captures this development: provincial muftis who were appointed by the Ottoman dynasty, for instance, were expected to cite the jurisprudential texts they relied on in their rulings. As I have suggested above, although this doctrinal regulation did not result in a physical code, it contributed to the marginalization of certain views within the Hanafi Madhhab. The Ottoman case, therefore, may offer an example of a codification project without a code.24 The intervention of the state/ruler also illustrates the difference between these codification projects and other types of canonization of Islamic law, such as the rise of the legal compendium (mukhtas․ar) that Knut S. Vikor has proposed to consider as a predecessor to the Ottoman Mecelle (and, by extension, to other Islamic legal codes).25 While one could argue that codification is a form of canonization, not every type of canonization requires the 393

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intervention of the ruler/state. Despite the institutional difference between canonization and codification, as the above - mentioned commentaries on the Ottoman Mecelle suggest, it is quite possible that many across the Islamic world discerned this continuity between the mukhtas․ar and other legal compendia and the codification projects.

2  Legal borrowing? The possible continuity between canonization and codification and between earlier, pre-19thcentury forms of codification and the 19th- and 20th-century codification projects have led several scholars to question the perception of the codification projects as foreign to the Islamic world.26 However, as has been argued above, several codification projects, especially in the second half of the 19th century, were explicitly inspired by – or borrowed from – ­contemporary European codes, most notably the French Napoleonic codes. Historiographically, at stake is not simply ‘a quest for origin’, but an attempt to explain how codifiers, their contemporaries and future generations of jurists and historians perceived their codification projects. In recent decades, scholars who studied legal reforms and the circulation of the notion of legal codification throughout the Islamic world, such as Donald Horowitz27 for Malaysia and Avi Rubin 28 for the Ottoman Empire, have sought to explain this circulation through the analytical lens of legal borrowing or legal transplants.29 To be sure, as Avi Rubin has pointed out in his study of legal borrowing in the 19th-century Ottoman Empire, numerous, if not most, legal systems have always borrowed to varying extents, implicitly or explicitly, from other legal systems. But as a conceptual framework, the lens of legal borrowing has enabled scholars to examine the dynamics between the ‘indigenous’ and the ‘foreign’. The main difference between the employers of this framework is the extent to which they understand it as an ontological description of both the ‘indigenous’ and the ‘foreign’. The study of the Ottoman codification project provides a useful example. Several students of the Mecelle have tried to trace its origin. In his discussion of the Ottoman Mecelle, for example, Joseph Schacht saw it as an outcome of ‘the influence of European ideas’ and ‘not an Islamic but a secular code’; while Majid Khadduri and Herbert Liebensky contended that the Mecelle is not a code in the European sense but a digest of existing rules of Islamic law.30 Avi Rubin, on the other hand, has offered a third approach. Indeed, he has argued, late Ottoman codifiers explicitly looked west and borrowed from the French codes. However, it is important to stress that the Ottoman (as well as contemporary and later) legal borrowing was selective: [w]hile the earlier versions of the criminal code contained a substantial presence of the Shariʿah, and the final version was clearly derived from Napoleonic law, it was not a wholesale adoption of the French code. The Ottoman reformers chose to leave out a number of articles that were part of the French code, and added others as they saw fit.31 Accordingly, Rubin has suggested abandoning the ‘either or’ approach with regard to the origin and source of inspiration of the Ottoman civil code, and to see the Mecelle as a ‘syncretic artifact’, containing both Islamic and European features. Rubin’s interpretation of the Ottoman codification project as a ‘syncretic artifact’ (as well as Schacht’s and Khadduri and Liebensky’s approaches to the code) is based on an analytical categorization of certain features as ‘Islamic’ (or ‘indigenous’) and ‘European’ (or ‘foreign’), a categorization that is imposed to a significant extent by the historian. But in recent years, the semiotics of law and jurisdiction, that is, the focus on the ‘Islamic’ meaning ascribed to 394

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legal concepts and practices, has received a greater deal of scholarly attention. As Iza Hussin has recently pointed out, Identification as a ‘Muslim state’ is self-selective and shifting: in some cases a state may be ‘Muslim’ in matters of public observances, such as the commemoration of state holidays but not in others – for example, the recognition of the Qurʾan as a source of legislation; in some cases both the state and the groups that oppose it claim to represent Islam. Both the categories of ‘Islamic law’ and ‘Muslim state’, therefore, revolve around understanding of authority, legitimacy, and jurisdiction. Who decides the meaning of Islamic law? Who judges where it begins and ends, and where the role of the state is in Islamic law? Is Islamic law a part of the state or autonomous from it? Key to understanding these questions is that Islamic law is a site of contest and a realm for the articulation of state–society relationships.32 Put differently, the ‘Islamicness’ and ‘foreignness’ of the codes were historically contingent and interpreted differently by different actors. The discernible continuities between, for instance, the mukhtas․ars and pre-19th-century Islamic codification projects and the 19th- and 20th-century legal codes raise the possibility that many codifiers and their contemporaries saw the codes as fully ‘Islamic’. Indeed, the introduction of the Mecelle refers to an ‘Islamic’ precedent, the 16th-century Egyptian jurist Ibn Nujaym, thus claiming its origins in the Islamic/Hanafi jurisprudential tradition.33 Finally, the issue of codification of Islamic law and the meaning ascribed to it reminds us that the ‘Islamic’ meaning of ‘Islamic law’ is far from fixed. By delineating legal spheres and by implementing certain substantive rules in specific legal realms, such as family law, self-­proclaimed Muslim rulers, ruling elites and states (as well as, in some cases, non-Muslim states) have shaped the manner in which many of their subjects and citizens understand the nature of Islamic law.

3  Codification and the localization of Islamic law Codification, as an act of sovereignty, was instrumental in producing local versions of ‘­Islamic law’. While this localization of Islamic law is often associated with the rise of the nation state across the Islamic world, the earlier, pre-19th-century codification, or semi-­codification projects invite us to include other moments of localization of Islamic law that took place in other polities, such as the Ottoman and Mughal Empires. In any case, it is worth reiterating, the localization was a result of the intervention of the ruling dynasty or the state. More generally, the different codification projects throw into sharp relief the tension between the universal and the local in Islamic legal and theological discourses: while some trends in Islamic legal and political thought have tended to emphasize the commitment of the Muslim community to God’s will, which is not territorially bounded, others have been more concerned with defining political and legal spaces where this will could be implemented. As Khaled Abou El Fadl has suggested, [t]he creation [ … ] of a territorial state that is charged with the implementing of the specific and positive rules of Shari’ah law, [… ] is not an Islamic imperative. In effect, this position maintains that political boundaries, legal institutions, and territory need not define that Islamic moral community.34 Indeed, as an ongoing engagement with Revelation, the Islamic tradition(s) have recognized that the divine message was intended to humanity in general, despite the concrete historical 395

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circumstances of Revelation (the Prophet was an Arab from a specific tribe who spoke Arabic, hence the Qurʾan refers to itself as an ‘Arabic Qurʾan’). The dividing line was between those who accepted the revealed divine message of the Prophet and constituted the community of believers (the umma) wherever they may reside, and those who rejected the message, the infidels. To be clear, those jurists never relinquished the ideal of a territorial polity that implements Islamic law in its domains,35 but they also allowed Muslims who did not live in such a polity to remain wherever they were as long as they were able to lead their lives in accordance with the Qurʾan and Sunnah of the Prophet. On the other hand, some jurists developed a division of the world into two major domains, the Abode of Islam (the lands that were under Muslim rule) and the Abode of War (the lands that were under non-Muslim rule), and introduced a geographical divide between believers and infidels. These jurists argued that Muslims living in lands ruled by non-Muslims should migrate to the Abode of Islam.36 On a somewhat different level, most jurists kept the Muslim community, and not the specific polity within the Islamic world, their main point of reference. Indeed, the considerable amount of independence from rulers that the jurists maintained enabled Islamic (Sunni) jurisprudential discourse to remain what Sheldon Pollock has described as ‘cosmopolitan’. This is not to say that Islamic (Sunni) jurisprudential thought has not articulated over the centuries several perceptions of territory and territoriality (beyond the above-mentioned distinction between the Abode of War and the Abode of Islam). For example, it has recognized the property rights of Muslims and non-Muslims over their lands and homes. 37 Moreover, jurists have been willing to accept regional judicial differences and customs (often referred to as ʿUrf or ʿa¯ da),38 but before the rise of dominant legislating rulers, these concepts referred to local judicial practices and concepts within the broader, supra-territorial legal sphere of the umma. The codifying ruling elites significantly altered the relationship between the legal sphere of the Muslim community and the local political entity. While some codification projects still nodded to the notion of a broader Islamic community and to the pan-Muslim notion of divine revelation, the act of codification took place in the context of a territorially bounded polity that was ruled by a specific sovereign, be it the sultan, a king or ‘the people’. Further, since each code produced a specific version of ‘Islamic law’, as codification entailed selecting certain views and rejecting or marginalizing others, it created local, territorially bounded versions of ‘Islamic law’ across the Islamic world. The codification-as-localization of Islamic law and the implementation of the codes were enabled by the different legal institutions of the state. The proliferation of religious and legal establishments with standardized and hierarchical career and training tracks on the one hand, and the state’s legal system on the other were instrumental in this process. These establishments provided the state with Islamic legitimacy (although this legitimacy was occasionally contested). 39 In addition, officially appointed juristconsults (muftis) and judges were also important in the codification process, as they emphasized in their rulings certain legal views while marginalizing others. Moreover, the legal system followed and promoted their codes in its rulings and procedures. In so doing, it propagated to its employees and the litigants the code’s particular interpretation of Islamic law. Finally, a few words about the relationship between the different Islamic legal codification projects and the rise of the nation state as the main form of political organization throughout the Islamic world are in order. As I have already suggested, certain codification projects of Islamic law predated the rise of the nation state. However, the codification and the localization of Islamic law served the emerging nation states in cementing the political and legal boundaries of the state. Moreover, in terms of legitimacy, the codification allowed the nascent nation states to make certain claims about their role as protectors and promoters of 396

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an Islamic conduct in public life. This is an important tension of the codification projects of Islamic jurisprudence, as will be discussed in the concluding section of this chapter.

4 Conclusion: codification, centralization and marginalization of ‘Islamic law’ This chapter has examined the relationships between several key concepts and processes that are often associated with the codification of Islamic law. I have suggested that several codification projects predated the modern period and its codification projects and, in many ways, can be perceived as their precursors. The continuity between the pre-modern and modern codification projects, I have argued, may raise questions with regard to the meaning (or, rather, multiple meanings) ascribed to codification in different historical contexts by different actors. Moreover, I have pointed to the contribution of the codification projects to the emergence of local versions of ‘Islamic law’. This localization took place in different political organizations, from pre-modern empires, such as the Ottoman Empire, to the modern nation states. But whatever the political organization was, codification was an act of sovereignty that allowed sovereigns to organize and delineate legal spheres in their domains. The concluding question of this chapter, then, is whether or not the different codification projects of Islamic law led to the marginalization of Islamic law throughout the Islamic world. Some scholars of Islamic law, such as Peters, have focused on the institutional history of Islamic law in the late 19th and the 20th centuries and concluded that the codified version of Islamic law is a pale shade of the non-codified complexity and plurality of the Islamic jurisprudential discourse. Furthermore, the codified version has been applied selectively in a fairly limited number of legal spheres. Seen from this perspective, Islamic law has been marginalized and allocated to certain legal enclaves. On the other hand, as Iza Hussin has recently argued, the institutional support of the state and its legal system rendered ‘Islamic law’, albeit in its codified versions, into a central element of the quest for legitimacy of the state.40 Moreover, the reified category of ‘Islamic law’ enabled its proponents to promote what they considered Islamic substantive rules within different legal and political systems that were not necessarily considered ‘Islamic’, such as colonial states and secularist republics.

Notes 1 Avi Rubin, ‘Modernity as a Code: The Ottoman Empire and the Global Movement of Codification’, Journal of the Economic and Social History of the Orient 59(5) (2016): 825–56. 2 Avi Rubin, ‘Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth Century’, Continuity and Change 22(2) (2007): 282–3. Numerous studies have been published about the Mecelle. For a recent evaluation of this codification project see Samy Ayoub, ‘The Mecelle, Shari’ah, and the Ottoman State: Fashioning and Refashioning of Islamic Law in the Nineteenth and Twentieth Century’, Journal of the Ottoman and Turkish Studies Association 2(1) (2015): 121–46. 3 One of the commentators on the Mecelle added to the code’s articles the citations (nuqu¯l) from the Hanafi ‘books of high repute’, thus emphasizing the continuity between the code and the ­(Ottoman) Hanafi jurisprudential tradition. 4 In some cases, as in the late Ottoman Empire, jurists made a distinction between codified Islamic law and the non-codified Islamic law. As Susan Gunasti has recently pointed out, ‘In the late ­Ottoman context, as elsewhere in the Muslim world, Shariʿah acquired the meaning of a legal code and its invocation came to be associated with constitutionalism. Fiqh, by contrast, came to signify the Islamic legal tradition – a tradition that was well defined, had a clear corpus, and had authority figures with whom one must interact. Supporting Shariʿah was about conferring legitimacy on the constitution, whereas supporting fiqh was more closely associated with the role of Islam in the 397

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law-making process’. Susan Gunasti, ‘The Late Ottoman Ulema’s Constitutionalism’, Islamic Law and Society 23(1–2) (2016): 98–9. 5 Kenneth M. Cuno, Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early ­Twentieth-Century Egypt (Syracuse, NY: Syracuse University Press, 2015), 166. 6 Ibid., 167. 7 Ibid., 169. 8 It is worth stressing that, as Ahmed Fekry Ibrahim has recently demonstrated, the practice of takhayyur and talfı¯q predated the codification projects of the 19th century. See Ahmed Fekry Ibrahim, Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse, NY: Syracuse University Press, 2015). 9 Aharon Layish, ‘The Transformation of the Shariʿa from Jurists’ Law to Statutory Law in the Contemporary Muslim World’, Die Welt des Islams, New Series 44(1) (2004): 85–113, 95. 10 Avi Rubin, ‘Modernity as a Code’, in The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim State, ed. Iza R. Hussin (Chicago: University of Chicago Press, 2016). For the codification of the Hanafi tradition in Afghanistan, see Faiz Ahmed, ‘In the Name of a Law: Islamic Legal Modernism and the Making of Afghanistan’s 1923 Constitution’, International Journal of Middle East Studies 48(4) (2016): 655–77. 11 Ron Shaham and Aharon Layish, ‘Tashriʿ’, in The Encyclopedia of Islam, 2nd edn; and Iza R. ­Hussin, The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim State (­ Chicago: University of Chicago Press, 2016), 150. 12 See, for example, Tobias Heinzelmann, ‘The Ruler’s Monologue: The Rhetoric of the Ottoman Penal Code of 1858’, Die Welt des Islams 54 (3–4) (2014): 292–321; Cuno, Modernizing Marriage, 158–84; and Rubin, ‘Modernity as a Code’. 13 See, for example, Wael B. Hallaq, Sharı¯ʿa: Theory, Practice, Transformation (New York: Cambridge University Press, 2009), 357–70. 14 ʿAbd al-Sattar al-Quraymi, Sharh al-Qawaʿid al-Kulliyya: Sharhan li-Qawaʿid al-Majalla ( Jeddah, Saudi Arabia: Maktabat Rawaʾiʿ al-Mamlaka, 2010); Mesut Efendi, Mirʾat-i Mecelle (Istanbul: ­Matbaʿa-yi Osmaniye, 1881). Mesut Efendi included citations from the ‘authoritative books’ of the Hanafi jurisprudential tradition. This is a practice that members of the Ottoman imperial learned hierarchy had been employing for centuries. In the endorsement (takrîz) Cevdet Pas¸a wrote for ʿAbd al-Sattar al-Quraymi’s commentary, he weaved al-Quraymi’s commentary in the Hanafi tradition by employing and manipulating elemts from the titles of major Hanafi legal works. 15 One could compare the commentaries on the codes to commentaries of abridged legal manuals (mukhtas․ar) in the pre-modern period. In the centuries following the compilations of these manuals, numerous commentaries were written. Many of these commentaries situated the opinions cited in the mukhtas․ar within the broader range of opinions of the school. For a comparison of the codes with the mukhtas․ars see Knut S. Vikor, Between Good and the Sultan: A History of Islamic Law ­( London: Hurst, 2005), 230–1. See also Mohammad Fadel, ‘The Social Logic of Taqlid and the Rise of the Mukhtasar’, Islamic Law and Society 3(2) (1996): 193–233. 16 Rudolph Peters, ‘From Jurists’ Law to Statute Law or What Happens When the Shariʿa is Codified’, in Shaping the Current Islamic Reformation, ed. B. A. Roberson (London: Frank Cass, 2005), 83. 17 Ibid., 88. 18 Layish, ‘The Transformation of the Shariʿa’, 85–6. 19 Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (Chicago: University of Chicago Press, 2012), 226. 20 Hussin, Politics of Islamic Law, ch. 3. 21 Maribel Fierro, ‘Codifying the Law: The Case of the Medieval Islamic West’, in Diverging Paths? The Shapes of Power and Institutions in Medieval Christendom and Islam, ed. John Hudson and Ana Rodriguez (Leiden: Brill, 2014), 100–1. 22 Muhammad Qasim Zaman, ‘The Caliphs, the ʿUlamaʾ, and the Law: Defining the Role and Function of the Caliph in the Early ʿAbbasid Period’, Islamic Law and Society 4(1) (1997): 1–36. 23 Fierro, ‘Codifying the Law’, 99–118. 24 Guy Burak, The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire (New York: Cambridge University Press, 2015). 25 Vikor, Between God and the Sultan, 230–1. 26 Ibid.; Fierro, ‘Codifying Islamic Law’; Burak, The Second Formation.

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27 Donald L. Horowitz, ‘The Qurʾan and the Common Law: Islamic Law Reform and the Theory of Legal Change’, The American Journal of Comparative Law 42(2) (1994): 233–93. 28 Rubin, ‘Modernity as a Code’. 29 Alan Watson famously coined this term: see Legal Transplants: An Approach to Comparative Law (Charlottesville: University Press of Virginia, 1974). 30 Both views are cited and discussed by Abi Rubin in his ‘Legal Borrowing and Its Impact on ­Ottoman Legal Culture’, 283. 31 Ibid., 282. 32 Hussin, The Politics of Islamic Law, 15. 33 Mecelle-yi Ahkam-i Adliyya (Istanbul: n.p., 1901–4), 3. 34 Khaled Abou El Fadl, ‘The Unbounded Law of God and Territorial Boundaries’, in States, Nations and Borders: The Ethics of Making Boundaries, ed. Allen Buchanan and Margaret Moore (New York: Cambridge University Press, 2003), 217–18. 35 Ibid., 219. 36 Abou El Fadl has argued that this divide was quite ambiguous in the writings of many pre-modern jurists. Certain jurists allowed Muslims to reside in what was considered the Abode of War as long as these lands afforded them safety and freedom to practise their religion. Ibid., 218. 37 Ibid., 214–28. 38 See, for example, Gideon Libson, ‘On the Development of Custom as a Source of Law in Islamic Law’, Islamic Law and Society 4(2) (1997): 131–55. 39 Burak, The Second Formation of Islamic Law; Hussin, The Politics of Islamic Law; Maurits S. Berger, ‘Shari’ah and the Nation State’, in The Ashgate Research Companion to Islamic Law, ed. Peri Bearman and Rudolph Peters (Farnham, Surrey: Ashgate Publishing Ltd, 2014), 223–34. 40 Hussin, The Politics of Islamic Law.

Selected bibliography and further reading Abou El Fadl, Khaled. ‘The Unbounded Law of God and Territorial Boundaries’. In States, Nations and Borders: The Ethics of Making Boundaries, ed. Allen Buchanan and Margaret Moore (New York: Cambridge University Press, 2003), 214–28. Ahmed, Faiz. ‘In the Name of a Law: Islamic Legal Modernism and the Making of Afghanistan’s 1923 Constitution’. International Journal of Middle East Studies 48(4) (2016): 655–77. Cuno, Kenneth M. Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-­ Century Egypt (Syracuse, NY: Syracuse University Press, 2015), esp. ch. 5. Fierro, Maribel. ‘Codifying the Law: The Case of the Medieval Islamic West’. In Diverging Paths? The Shapes of Power and Institutions in Medieval Christendom and Islam, ed. John Hudson and Ana Rodriguez (Leiden: Brill, 2014), 98–118. Heinzelmann, Tobias. ‘The Ruler’s Monologue: The Rhetoric of the Ottoman Penal Code of 1858’. Die Welt des Islams 54 (3–4) (2014): 292–321. Hussin, Iza R. The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim State (Chicago: University of Chicago Press, 2016). Layish, Aharon. ‘The Transformation of the Shariʿah from Jurists’ Law to Statutory Law in the Contemporary Muslim World’. Die Welt des Islams, New Series 44(1) (2004): 85–113. Peters, Rudolph. ‘From Jurists’ Law to Statute Law or What Happens When the Shariʿah is Codified’. In Shaping the Current Islamic Reformation, ed. B. A. Roberson (London: Frank Cass, 2005), 81–94. Rubin, Avi. ‘Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth ­Century’. Continuity and Change 22(2) (2007): 279–303. Rubin, Avi. ‘Modernity as a Code: The Ottoman Empire and the Global Movement of Codification’. Journal of the Economic and Social History of the Orient 59(5) (2016): 825–56.

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24 Modern Islamic ­constitutional theory Andrew F. March

Introduction Constitutionalism is the basic idea that the exercise of governmental powers should be limited by a basic law (usually but not always written down), and that the legitimacy of coercive law-making by a government depends on its observing the limitations and rules established by that more fundamental legal order. A minimal understanding of constitutionalism holds simply that the basic powers of government (legislative, executive, judicial) are assigned to specific offices, organs or institutions (even if just one single office), and that the exercise of those powers must observe the limits and procedures set out in the basic law. However, in the modern period it is broadly assumed that ‘constitutionalism’ as a doctrine of legitimate governance implies a separation of the basic governing powers into distinct organs or branches, and the regulation by law of which competencies are ascribed to which institutions and how conflicts between the branches are to be resolved legally. In addition to limitations on the powers of various branches or authorities by the existence of other branches, constitutionalism is also often associated with limitations on the power of government as such, particularly in the form of civil or human rights commitments. Constitutional theory, however, points to some enduring puzzles about the idea of government limiting itself by law. For one, if law is by definition the command of a sovereign power that cannot be legally checked by any higher authority, how can the idea of sovereign authority being limited by law itself be coherent?1 Can this be resolved by distinguishing between the ‘sovereign’ power to authorize a basic constitutional order and a legally constrained ‘government’ that exercises most ordinary legislative power? But even then, can a people be said to legally bind itself by a constitutional order if, in principle, it can change this basic law at any time? Moreover, if there is a ‘sovereign people’ that precedes a legally constituted political order, how can we identify the existence of this people separate from and prior to that political order? These are some of the most prominent questions and puzzles associated with constitutionalism, and we will see that they also arise in modern Islamic constitutional theory. However, many Islamic constitutional theorists hold that Islamic law has ways of solving them conceptually. 400

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1  A brief history of modern Islamic constitutional theory Constitutionalism and constitutional theory have been some of the most active areas of ­Islamic legal thought and practice in the modern period. It is not hard to see why this might be the case. First, important Muslim polities (like the Ottoman Empire, Qajar Persia, Egypt and Husaynid Tunisia) received their first written constitutions before the period of direct Western colonial governance. Thus, the problem of constitutionalism received extensive treatment while Islamic legal frameworks still dominated intellectual and political life in Muslim lands. Second, once Islamist politics emerged as an oppositional force in 20th-­ century colonial and post-colonial contexts, its ideological vocabulary was largely juridical. The concepts of ‘divine sovereignty’ and ‘religion and state’ (dı¯n wa-dawla) as the alternative to nationalism or socialism directly refer to the institutional and adjudicative structure of the state. It is, thus, as natural for political Islamists to focus on constitutional themes while out of power as it might be for Marxists to focus on economic ones. Third, the tensions within political Islam also largely lend themselves to argumentation over constitutional questions. If Muslim intellectuals or activists find the utopian theories of thinkers like Mawdudi or Qutb lacking in subtlety or flexibility, it makes sense that the response might be to develop alternative theories of what Islam requires in terms of state power, obedience to the Shariʿah and popular participation in government. Finally, it must be said that the Sunni juridical tradition, in particular, simply lends itself well to modern appropriation in the area of constitutional law.2 While Islamic empires did not tend to pass down written covenants between rulers and the ruled, Sunni scholars developed a rich tradition of thinking about ‘the rules of governance’ (al-ah․ka¯ m al-sult․a¯ niyya) and ‘religiously legitimate governance’ (al-siya¯ sa ­al-sharʿiyya). Many of the core themes at the heart of constitutionalism are all to be found in these texts, even if their institutionalization was often less developed than in their counterparts in medieval and early-modern European monarchies. Historically, it is possible to mark out a few important phases of modern Islamic constitutional theorizing. The 19th-century was a period of profound social and political transformation in lands broadly under the authority of the Ottoman Empire and Qajar Persia. Somewhat less successful than the codification of many areas of the positive law during this period, but symbolically important for later debates on Islam and state legitimacy, were efforts to impose written constitutions on traditional dynastic rulers. These constitutional documents include those adopted (often briefly) in Tunisia (the 1857 ‘Pact of Security’, followed by the 1861 constitution), the Ottoman Empire (1876), Egypt (1882) and, into the 20th century, Qajar Persia (1906–1911). At the same time, a number of important intellectuals and statesmen penned defences of written constitutions that serve as some of the first modern statements of Islamic constitutional theory. Such texts include the articles published by the activist Namık Kemal (d. 1306/1888) in the newspapers founded by the Young Ottomans (particularly H ․ ürriyet and I˙ bret), Khayr al-Din Pasha’s (d. 1307/1890) Introduction (Muqaddima) to his study Aqwam al-Masalik fi Maʿrifat Ahwal al-Mamalik (The Surest Path to Knowledge of the Conditions of States) (1867), the Introduction to the multi-volume history of Tunisia by the bureaucrat-­ historian Ahmad b. Abi al-Diyaf (Bin Diyaf; d. 1290/1874), Ithaf Ahl al-Zaman bi-Akhbar ­Muluk Tunis wa-ʿAhd al-Aman, as well as various writings on the need for political and ­intellectual reform by such figures as Rifaʿa al-Tahtawi (d. 1290/1873), ʿAbd al-Rahman al-Kawakibi (d. 1320/1902) and Muhammad ʿAbdu (d. 1323/1905). A second period of Islamic constitutional theorizing was the period right after the First World War. Two events in this period can be identified as particularly important in 401

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sparking an intense debate around the meaning of the Caliphate, one political and one intellectual. The political event is the abolition of the Caliphate by the Turkish National Assembly on 4 March 1924 (although the Sultanate had been abolished and the last Sultan, Mehmet VI, had departed, in November 1922). The intellectual event is the 1925 publication of al-Azhar-trained scholar ʿAli ʿAbd al-Raziq’s al-Islam wa-Usul al-Hukm: Bahth fi al-Khilafa wa-l-Hukuma fi al-Islam (Islam and the Foundations of Governance: A Study of the Caliphate and Government in Islam), which claimed that the Prophet Muhammad had only been sent as a religious messenger to the world and did not reveal a political doctrine, and thus called for a strict removal of religious claims from political life. It is, thus, in the 1920s that we begin to see the first emergence of works forced to defend Islam’s claim to priority over the political sphere (at this stage still by defending the obligatoriness of the office of the Caliphate) and to begin to elaborate the balance between divine and popular sovereignty. Of particular interest here are Rashid Rida’s al-Khilafa, 3 the critiques of ʿAbd al-Raziq’s treatise by al-Azhar scholars Muhammad al-Khidr Husayn (Naqd Kitab al-Islam wa-Usul al-Hukm 4) and Muhammad Bakhit alMutiʿi (Haqiqat al-Islam wa-Usul al-Hukm 5) and the treatise by the great Egyptian jurist, ʿAbd al-Razzaq al-Sanhuri, Fiqh al-Khilafa.6 These debates immediately preceded the founding of the Muslim Brotherhood by Hasan al-Banna in 1928 and the birth of political Islam as an oppositional movement. But, while alBanna did author some lectures on politics and basic constitutional principles,7 arguably the most important early statements of Islamic constitutional theory came not from Egypt but from South Asia. Abu al-Aʿla Mawdudi gave a lecture on ‘The Political Theory of Islam’ as early as 1939, in which he outlined basic principles for a renewed Islamic constitutional theory, and authored more elaborate accounts of constitutional principles in the period after the founding of Pakistan during the debates surrounding the first post-independence Pakistani constituent assembly. Some of these lectures and articles from the 1949–1953 period were gathered into a volume entitled Islamic Law and Constitution. In them, Mawdudi articulates certain principles that can be said to characterize much Islamic constitutional thinking for the next decades. While Mawdudi’s concepts of ․hakimiyya (divine sovereignty) and ja¯ hiliyya (the condition of rejecting Islam) were notoriously influential on the Egyptian Islamist thinker Sayyid Qutb, and Qutb’s writings on divine sovereignty ensured that Arab Islamists saw this concept as their standard objection to modern forms of secular politics, Qutb himself was not particularly interested in technical issues of constitutionalism or institutional design. However, the post-Qutb period gives us a few important sets of writings on Islamic constitutional law. One set might be characterized as Islamist doctrinal apologetics. Many thinkers, of a variety of intellectual backgrounds (some lay, some with scholarly credentials), have written treatises on the kind of Islamic state Islamists should be striving for. These include activist intellectuals such as Hasan al-Turabi, Rashid al-Ghannushi8 and Yusuf al-­Qaradawi.9 This set might also include treatises written by independent intellectuals sympathetic to political Islam, such as Fahmi Huwaydi,10 Muhammad ʿImara,11 ­Muhammad Salim al-ʿAwwa12 and Tariq al-Bishri. In addition to this discourse (much of it dense and sophisticated), we find a literature of scholarly monographs on ‘constitutional jurisprudence’ ( fiqh dustu¯rı¯),13 ‘the principles of government’ (us․u¯l al-h ․ukm)14 or ‘religiously 15 legitimate governance’ (siya¯ sa sharʿiyya) written by professional academics, many of them in ‘secular’ universities.

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2  The basic contours of modern Islamic constitutional theory The themes of modern Islamic constitutional theory are surprisingly consistent from the 19th-century to the present, and across the above genres. On my reading, the following are the most consistent and prominent themes in (Sunni) Islamic constitutional theory: •

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Governance itself (h․ukm) is a necessary condition for mankind, and this can be known through both reason and revelation. In other words, whatever freedom humans in general, and the Muslim umma in particular, have to extend and revoke authorization for rulers, they are not free to choose to not be governed at all. The Muslim umma pre-exists any particular political regime or contract of rulership, and so paradoxes familiar to Western philosophical treatments of the authority of a people to authorize government before it has actually formed itself as a people are less salient.16 In addition to governance in general being obligatory, for Muslims the specific office of the Imam, or Caliph, is obligatory. While some thinkers argue for this from reason as well (because if governance is necessary, it follows that governance must be unitary), in most cases the arguments for the continued obligatoriness of the Caliphate are derived from Islamic legal theory. While the Caliphate is thus regarded as a divinely ordained office, the holder of the office is seen by Sunnis as a legally constrained officer or civil servant. It is a ubiquitous theme in Islamic constitutional theory that the ruler is an agent (or even servant) of the people, is constrained by law, and is removable by the people (or their representatives) when his violation of the social contract exceeds certain boundaries. Government in general is characterized first and foremost as the application of a pre-­ existing law. The social contract between the ruler and the ruled is largely seen as a pact between a principal (the umma) and an agent (the ruler) for the latter to execute the former’s divinely-imposed obligation to implement divine law in the world. Thus, the law is portrayed as largely pre-existing the political sphere and there to be discovered more than made. In constitutional terms, there are certain ordained limits on the legislative authority of any state office or institution. Of course, no one holds that the Shariʿah has legislated pre-existing rules for every conceivable area of social life. The task of government is not only to apply the law that the jurists discover ( fiqh law), but to issue policy and administrative directives in areas left over. Thus, (modern) Islamic constitutional theory explicitly anticipates a realm of law making that is distinct from law derived from classical fiqh. Almost always, this kind of law making is framed in the context of the Qurʾanic concept of ‘consultation’ (shu¯ra¯ ). But such laws are not legislated without limitations. They must aim at the welfare of the umma (mas․lah․a ʿa¯ mma) and they must not violate the Shariʿah. Thus, a major theme in modern Islamic constitutional theory is the idea that all laws made and enforced by a state must either be compatible with the Shariʿah or otherwise not repugnant to it. Modern Islamic constitutional theory stresses the role of the umma in unique and novel ways. The umma is almost always portrayed as the ‘source of all political authorities’ (mas․dar al-sulut․a¯ t) and is also given a participatory role in whatever process is imagined for institutionalizing shu¯ra¯ and policy-oriented law making. Finally, an important feature of modern Islamic constitutional theory is that constitutions are often used as important sites for declaring ideologically transformative goals within society. In addition to the symbolic declaration of the Shariʿah as the source of all

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legislation, moral goals related to the family, social solidarity, religious education, social welfare, public dress and modesty, and the ethical conduct of politics are often articulated as constitutional obligations of an Islamic state.17 Thus, there is significant agreement among modern Islamic theorists about the basic parameters of Islamic constitutionalism. Government is necessary, but it must be by the consent of the people, based on elected offices, constrained by the Shariʿah, and inclusive when it comes to consultation on matters of public interest not pre-determined by the divine law. But any scheme that is capable of garnering so much agreement across the full ideological spectrum of modern Islamic thought must be masking some significant ambiguities. The points of disagreement and debate within modern Islamic constitutional theory include the following. •

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How far does the constituent authority (sult․a taʾsı¯siyya) of the umma extend? Is the umma free to create radically new institutions and forms of governance suitable to its time and place? Or is the specific office of the Caliphate a permanent obligation of the Shariʿah in principle? How broadly based must the election of the ruler or other representatives be? While Sunni legal thought has always held that the Caliph is an elective office (by ikhtiya¯ r rather than the Shiʿite nas․․s, or designation), it does not follow that participation in the election of the Caliph needed to involve a wide segment of the population. Technically, the election was by the ‘People Who Loose and Bind’ (ahl al-h․all wa-l-ʿaqd), which could be an ad hoc council of notables, or even just the sitting Caliph, who could ‘elect’ his successor on the grounds that he was best placed to know what was in the umma’s interest. By and large, modern Islamic constitutional theory is not comfortable with limiting the election of the ruler to a limited group of ‘People Who Loose and Bind’, but this nonetheless remains an issue of disagreement. Similarly, there is disagreement about the source of authority of other intermediary or representative bodies. Traditionally, scholar-jurists and whoever constituted the ‘People Who Loose and Bind’ of the time stood in between the ruler and the people, and to that extent mediated the ruler’s power. But they occupied this role on their own authority, whether epistocratic (in the case of the scholars) or functional (in the case of military and other bureaucratic elites who claimed to fulfil the role of the ‘People Who Loose and Bind’), rather than by any authorization or consent of the people. By contrast, even where modern Islamic constitutional theory preserves a role for religious scholars or elite representatives in law-making, adjudication, consultation, policy-making and limiting the arbitrary power of the executive, it is an active point of debate whether the source of their practical political authority is only the consent and authorization of the people, or whether it can be imposed on the people because of their intrinsic capacity to govern in the people’s interest. While all Islamic constitutional theorists make some kind of ‘application of the Shariʿah’ central to the understanding of political legitimacy, there is substantial disagreement about what it means to apply the Shariʿah, what is timeless and what is flexible in the Shariʿah, and whether the Shariʿah is more or less identical to the classical fiqh tradition or is instead a living process of rediscovering the meaning of revelation based on present circumstances (Ijtiha¯ d). Thus, there is ambiguity as to the core constitutional question of how free political authorities are to legislate about public matters from pre-political legal and moral constraints. Related to this problem, there is disagreement about the meaning and institutionalization of Shariʿah-adjudication. A number of Muslim countries have articles in their constitutions declaring that the Islamic Shariʿah is the basis of all legislation and that

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any new legislation must be compatible with, or not repugnant to, the Shariʿah. But there is little agreement on what this means in principle, never mind in practice. What is modern codified state law evaluated against for Shariʿah-compatibility purposes – ­t raditional fiqh law as found in the compendia and summaries of the legal schools, some new direct evaluation of what the primary sources of revelation require, or some combination of the two? Are all bodies of law treated equally in terms of the requirement of Shariʿah-­compatibility? Or is there a distinction between areas of law where the Shariʿah is thought to speak directly, and possibly definitively, and areas of the law where the umma and its representatives have greater freedom to pursue mundane welfare (mas․lah․a)? That is, does something like the classical distinction between fiqh ( jurists’ law) and siya¯ sa (rulers’ law) persist, or is all legislative activity to be subject to divine restrictions? Finally, how should legislation beyond the strict confines of revealed texts be conceived? When the umma or its representatives make law in areas that do not directly implicate the Qurʾan, the Sunnah, or traditional fiqh rulings, should this be regarded as law making ‘outside the Shariʿah’ or is the pursuit of the umma’s mas․lah․a in this world, the dunya¯ , part of God’s will and thus part of what it means to enact a ‘living Shariʿah’? There is a further dimension to the question of Shariʿah-adjudication, namely who decides on the question of the compatibility of state law with the Shariʿah and what is the implication of a finding one way or the other for the bindingness and validity of law within a given state? There is significant disagreement on who holds the authority to speak in the name of the Shariʿah in the modern state. The natural answer would be the experts in knowledge of the divine law (the ʿulama¯ ʾ), but at least since the Persian Constitution of 1906–7, traditional scholars have shared this authority with lay jurists and other legislators. Thus, speaking in the name of the Shariʿah is not necessarily the monopoly of traditional experts. But more intriguing perhaps is the question of the authority of the Shariʿah as such. Suppose a new law is held to be in violation of Shariʿah principles. Does this immediately invalidate a law, or does it merely subject it to further scrutiny or revision? When other branches or authorities of government override an initial judgement of Shariʿah-incompatibility, should this be seen as governing beyond the limits of the ‘Shariʿa’ or rather might the overall dialectical process of enacting law and policy in consideration of revealed texts, traditional scholarly knowledge and temporal considerations of the umma’s best interest (mas․lah ․a) itself be what it means to govern in a religiously legitimate way (i.e. the idea of siya¯ sa sharʿiyya)?

Thus, the aspects of constitutionalism that are more or less subject to agreement in modern Sunni Islamic thought are: that the people are, broadly speaking, the source or origin of the legitimacy of political institutions, can elect and supervise political officers, and can participate in various forms of consultation and law making. Similarly, it is broadly agreed that elected rulers are agents or civil servants subject to the law and limited in their authority, and that all laws and enactments are subject to some kind of Shariʿah-review. This is what is meant when some contemporary Islamic constitutional theorists claim that the state in Islam is neither theocratic nor fully secular, but rather a ‘civil state’.

3 The core ambiguity of modern Islamic constitutionalism: the scope and authority of human-made legislation What is more interesting are the areas of disagreement or fundamental ambiguity. What does it mean in the modern period for the Shariʿah to be enforced or to serve as the source of legislation? What is the scope for law-making in an Islamic state and who is entitled to participate 405

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in it? What is the status – from a Shariʿah-minded perspective – of new laws made by state institutions? And what is the standard for engaging in Shariʿah review of legislation, and who is entitled to formulate that standard and apply it in courts authorized to review legislation? The rest of this chapter focuses on a few important thinkers who have articulated responses to these questions: Abu al-Aʿla Mawdudi, Kamal Abu al-Majd and Rashid al-Ghannushi. This does not give an exhaustive account of Islamic constitutionalist views, but it should suffice.

3.1  Mawdudi Post-partition Pakistan was the first modern, post-colonial Muslim-majority state to attempt to define itself explicitly as an ‘Islamic state’ and to enshrine that through constitutional declarations. The 1949 Objectives Resolution was, to a certain extent, a symbolic victory for Islamists as it codified certain basic premises of modern Islamist ideology associated with Mawdudi and his party, the Jama¯ ʿat-i Isla¯ mı¯.18 In 1948 Mawdudi gave a speech in which he articulated ‘Four Points’ central to any Islamic constitution: 1) Sovereignty in Pakistan belongs to God, and the government is only an agent of His Sovereign Will. 2) The Islamic Shariʿah shall form the inviolable basic code of all legislation in Pakistan. 3) All existing or future legislation which may contravene (in letter or in spirit) with the Shariʿah shall be null, void, ultra vires of the legislature. 4) The powers of the government shall be derived from, circumscribed by and exercised within the limits of the Shariʿah alone. The 1949 Resolution nodded to these principles in declaring that ‘Sovereignty belongs to Allah alone; but he has delegated it to the State of Pakistan through its people for being exercised within the limits prescribed by Him as a sacred trust’. According to Said Arjomand, this declaration of God’s sovereignty was in fact the cornerstone for the construction of an ideological constitution purporting to be based on the Qurʾan and the Islamic Shariʿah. This declaration ushered in a wave of ideological constitution-making in the Muslim world, with Islam increasingly as the basis of the constitution and the state, making current constitutional problems especially intractable.19 More germane for present purposes are the theories of Islamic constitutionalism in circulation at this time. Mawdudi was not the only figure writing on this topic during the time between the adoption of the Objectives Resolution and the 1956 Pakistan constitution, but his ideas were both among the most influential and also represent an important point of comparison with later Islamist articulations of constitutional ideals. Mawdudi also made constitutional theory central to the Islamist intellectual project early in the history of his party. As noted above, Mawdudi’s discussion of constitutional principles actually goes back to as early as 1939, in a lecture to students at Punjab University. In this lecture,20 he gave a threefold characterization of an Islamic state: (1) No person, class or group, not even the entire population of the state as a whole, can lay claim to sovereignty. God alone is the real sovereign; all others are merely His subjects. (2) God is the real law-giver and the authority of absolute legislation vests in Him. The believers cannot resort to totally independent legislation nor can they modify any 406

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law which God has laid down, even if the desire to effect such legislation or change in Divine laws is unanimous. (3) An Islamic state must be founded upon the law laid down by God through His Prophet. The government which runs such a state will be entitled to obedience in its capacity as a political agency set up to enforce the laws of God and only insofar as it acts in that capacity.21 Thus, we see the main principles of Mawdudi’s Islamic constitutionalism: God’s sovereignty is primarily to be understood as legislative sovereignty and that means first and foremost adopting for implementation any revealed text that appears to indicate a clear legislative command. Mawdudi’s view is distinctive for its formalist understanding of Shariʿah and its restrictive understanding of the place for human legislative efforts. In the same lecture, he discusses the place of law making beyond the Shariʿah in the following way: All administrative matters and all questions about which no explicit injunction is to be found in the Shariʿah are settled by consensus of opinion among the Muslims. Every Muslim who is capable and qualified to give a sound opinion on matters of Islamic law is entitled to interpret the law of God when such interpretation becomes necessary. In this sense, the Islamic polity is a democracy. But it is a theocracy in the sense that where an explicit command of God or His Prophet already exists, no Muslim leader or legislature, or any religious scholar can form an independent judgment, not even all the Muslims of the world put together have any right to make the least alteration in it.22 Mawdudi gives a relatively clear-cut ‘constitutional’ principle about whether humans are free to enact novel laws: Is there a text on the matter in the Shariʿah or not? This reflects a formalist understanding of the law: texts are all more or less equal in their legal force and are not to be second-guessed by humans based on some independent, substantive criterion of legal validity. So on this standard, even areas of the law of social relations (muʿa¯ mala¯ t), often thought to be open to continuous Ijtiha¯ d based on judgements of what serves the welfare of Muslims (mas․lah․a) at any given time (marriage, divorce, succession, sales, contracts, etc.), are not subject to legal change or revision if there are clear revealed texts. What is left over for public consultation or deliberation are characterized as largely ‘administrative matters’. In later writings, from the period after the Objectives Resolution and the establishment of a constituent assembly, Mawdudi published some longer lectures and articles on Islamic constitutional theory.23 In these, he goes into further detail about the core problems of Islamic constitutionalism that he expressed in his Four Points demand: what exactly it means to apply the Shariʿah, what space is left over for human legislation, how that legislation should be made, and how all state legislation should be reviewed for Shariʿah-compatibility. He first makes clear that by ‘applying the Shariʿah’ he means applying as much as possible from both clear, revealed texts and classical fiqh before moving on to human legislation. He defines the ‘fixed parts of the Shariʿah’ that must be upheld as, first, those laws that have been laid down in explicit and unambiguous terms in the Qurʾan or sunnah (e.g. those pertaining to alcohol, interest, gambling, the ․hudu¯d punishments, inheritance, and so on), followed by guiding principles (maba¯ diʾ) and limitations on human behaviour laid down in revelation.24 Beyond the realm of law clearly determined by revelation, he allows that there is a further realm of the law subject to modification according to the changing needs and requirements of the time. This adaptation of the Shariʿah is to be performed strictly by expert jurists 407

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using the methods of legal interpretation (which he characterizes somewhat idiosyncratically as drawing on the mechanisms of taʾwı¯ l, qiya¯ s, ijtiha¯ d and istih․sa¯ n). But Mawdudi’s prescriptions should not be mistaken for the ‘back to the source’ approach to Islamic law common to many Modernists.25 He calls for the establishment of an Academy of Law, staffed by expert jurists charged with ‘taking stock of the entire work left behind by our ancestors in the field of law’ with the mission of translating classical fiqh works but also editing them afresh and ‘re-arranging their contents on the pattern of modern books of Law’ so that Islamic fiqh manuals might look more like modern works of law, resulting in Islamic legal codes of civil and criminal law and procedure.26 Mawdudi does not confuse classical fiqh works for the very essence of Shariʿah that Muslims are required to uphold. For him, Islamic law is comprised of only the following four categories: 1) explicit commandments of God in the Qurʾan; 2) explanations or details of a Qurʾanic commandment or an explicit order by the Prophet; 3) deductive or inductive inferences based on explicit texts and approved by the majority of the Muslims in the past, or a juristic verdict agreed to in the past by a majority of Islamic scholars and accepted by a great majority of the Muslims (ijma¯ ʿ); and 4) a ‘fresh piece of legislation decided now by a unanimous verdict or the opinion of the majority of the leaders of the Millat in accordance with the requirements of Islamic Law’.27 Based on this typology, his proposal is that a body of Islamic legal experts should compile the first three categories of commandments and laws into a Code. Additions to it will continue to be made as fresh laws are framed by general consent or majority decision. If and when such an exhaustive code has been compiled, it will be the basic book of law and all the current books of fiqh will serve as commentaries for this book. In terms of constitutional theory, Mawdudi can be said to regard traditionally-trained scholars as the designated expert codifiers of law. The legislative authority of any constituted political body is constrained by both a prior moral commitment to be faithful to the Shariʿah and by a political imperative to defer to experts who are entitled – on the basis of their epistemic (not appointed) authority – to codify law for the Muslim community. While the precise political institutions created within a constitutional order are up to the umma to design, the broad contours of the constitutional order are fixed by certain permanent injunctions of the divine law. What remains is the Islamic notion of shu¯ra¯ : consultation among the believers about the best means for realizing their interests in the world. Mawdudi regards that as a relatively open area for constitutional jurisprudence. The precise mode of shu¯ra¯ has been left for the Muslims to figure out. The Shariʿah does not, therefore, lay down whether the people should be consulted directly or through their representatives; whether the representatives should be elected in general elections or through electoral colleges; whether the consultative body should have one house or two houses … the Shariʿah leaves these problems open for solution according to the needs of the time. 408

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He only sees three core, sharʿı¯ constraints in this area. First, no collective affair can be conducted without consulting the people concerned (what is sometimes referred to in contemporary political philosophy as the ‘all-affected interests principle’). Importantly, he holds that this applies to the appointment of the Head of State in the first order, and thus the principle of shu¯ra¯ excludes from the outset any form of monarchy, despotism or dictatorship. Moreover, it also forbids the Head of State from enjoying emergency powers or the authority to suspend the constitution, a common power enjoyed by executives in modern constitutions. Second, all people concerned should be consulted directly or through representatives, including non-Muslims. And third, consultation should be free, impartial and genuine.28 However, despite the insistence on the fairness of shu¯ra¯ , it should not be mistaken for a back door to robust legislative authority. Mawdudi is adamant that in an Islamic state the legislature has no right to make laws, the executive has no right to issue orders and the law courts have no right to decide cases in contravention of the teachings of the Qurʾan and Sunna; and if they do so, the Muslims must disobey them. This is perfectly in keeping with his commitment to ‘divine sovereignty’: If anything is proved to be right in the light of the Qurʾan and the Sunna, it cannot be set aside by any judge on the grounds that it is in conflict with the law enacted by the legislature. … If there is a conflict between the two, it is the latter which must be declared ultra vires of the constitution. But it also raises some interesting implications for a broad right (or even obligation) to civil disobedience. If the people disobey the government because it violates the Shariʿah then ‘they will not be guilty of any crime; and it is the government whose orders must be set aside in such a case’.29 However, if this right is generalized beyond the authority of fiqh experts or an appointed judiciary to judge on Shariʿah-compliance to a general right to popular disobedience or nullification, this seems to raise the spectre of the kind of anarchy of judgement in religious matters that Sunni constitutional theory has sought to avoid. And yet it does seem that there is a genuine kernel of such radical populism at the heart of Sunni anti-clericalism and community-centredness.

3.2  Abu al-Majd Mawdudi represents the apex of Islamist ideological constitutional theory, but the field is populated by a wide range of thinkers. Some of them are academics who are not part of the Islamist movement but are sympathetic to the goal of legitimizing constitutional orders in Islamic terms. One such is the prominent Egyptian constitutional lawyer and law professor, as well as former minister and vice-president of the Egyptian National Council for Human Rights, Ahmad Kamal Abu al-Majd. Abu al-Majd’s 1962 lectures, published as Nazarat Hawla al-Fiqh al-Dusturi fi al-Islam (Reflections on Constitutional Jurisprudence in Islam), 30 are among the earliest academic contributions to the study of constitutional theory. Abu al-Majd reiterates much of what I suggested above was standard (Sunni) constitutional doctrine: even a legitimate Caliph is a civil (madanı¯) ruler from all standpoints with no claim to a divine right to rule; the Caliphate, or Imamate, is a kind of contract comparable to the social contract of Western political theory in that it involves reciprocal rights and 409

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obligations and mechanisms for checking and controlling the power of the ruler (mura¯ qaba); the people are the legitimate source of all political power and authority; and governance is a matter of consultation between free persons. Abu al-Majd also insists that Qurʾanic notions of the dignity (kara¯ ma) of the ‘sons of Adam’ and mankind’s universal vicegerency of God (istikhla¯ f, khila¯ fat al-insa¯ n) guarantee the respect for personal rights and freedoms in Islam, which he regards as one of the two pillars of democratic theory (along with the rule of the people). However, he does not regard Islamic constitutionalism and modern democratic theory as identical. The difference lies in the limitations on the conception of popular sovereignty. On his reading of Western democratic theory, popular sovereignty means that whatever the majority decides becomes binding law; its will is supreme and there is no higher authority.31 In Islam, by contrast, popular sovereignty is limited. But, perhaps surprisingly, he does not stress simply the sovereign place of divinely revealed law, but also the constraint on popular sovereignty ‘by an idea, ideology and a collection of ethical and legislative values that form the obligatory legal framework for the majority’. He thus refers to the Islamic state in the first order as an ‘ideological state’ (dawla fikriyya). However, it is clear that this can only be institutionalized in the form of a law ‘which both rulers and ruled have to submit to’, and thus that Islamic government is the government of law, not the government of men. Islam strips any government actions, even if validated by the majority of the people through some process of shu¯ra¯ , of any binding or obligating force if they violate the limits of the basic legal framework. This opens the door for the establishment of a special body for the review of such government actions.32 Whereas Mawdudi had insisted that only God could be regarded as sovereign, and the umma could only be seen as enjoying a kind of deputyship in its status as God’s vicegerent (khalı¯fat Allah), Abu al-Majd characterizes the correct Islamic view as one of ‘dual sovereignty’ (siya¯ da muzdawija): the absolute sovereignty of a fixed constitution based on ‘God’s limits, made clear in the Qurʾan and Sunnah’, augmented with limited popular sovereignty for the people. The foundation for this dualism is that Islam did not leave people to their whims and does not see in numbers alone a clear, definitive, infallible proof of a truth-claim. The majority view is probabilistic at best, and could even lead to error. Only the prophets of God have brought clear truth, even when they stood alone, or the number of their followers was small. Islam, for Abu al-Majd, thus distinguishes between two spheres: that of the clear, definitive Text, and the that of the ambiguous text, or the absence of one altogether. Where there is a clear, definitive Text there is no room for the majority, not even for an Ijma¯ ʿ of the whole umma, to legislate. For God, who revealed such a Text, is more knowledgeable than the community of where its welfare is located and what justice requires. 33 But in other circumstances, when the text admits of interpretation, where there is no text treating this question, or when there is no objective measure of truth or right and wrong, then Islam puts the greatest weight on the opinion of the majority, making it in fact an indicator of the truth. He quotes the following Prophetic dicta in supportive of this: ‘the hand of God is with the jama¯ ʿa’, ‘what the Muslims regard as good, that is good in God’s eyes as well’ and ‘my community will not agree on an error’. However, beyond the claim that there are such clear, unambiguous texts. Abu al-Majd does not, in these early lectures, specify how they are to be identified (and by whom), and whether even apparently clear texts admit of judgement or flexibility in application on grounds of mas․lah․a or equity.

3.3 Ghannushi In addition to the idea of divine sovereignty (h․a¯ kimiyya) as the master principle of political legitimacy for Muslim societies, Mawdudi popularized a political reading of the theological 410

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doctrine of all mankind as God’s deputy, or caliph. Mawdudi himself drew upon this doctrine to distinguish between sovereignty and deputyship. But as he himself referred to the Islamic regime type not as a theocracy but as a ‘theo-democracy’, this doctrine of the ‘caliphate of man’ releases a strain of democratic thought into the modern Islamic ideological genealogy. It becomes an important pillar of post-utopian Islamic democratic and constitutional thought. An important source here is the thought of Tunisian Islamist political theorist and party leader Rashid al-Ghannushi, who writes, for example, that while the Islamic conception refers everything back to God and to the Shariʿah, the claim that man is mustakhlaf (deputized by God) means that he is dignified by His creator with reason, will and freedom (in addition to being helped along the way by prophets). He adds that ‘this general framework for life leaves empty wide areas to be filled by man exercising his vicegerency (khila¯ fa), through which the union of freedom and obligation, unity and pluralism, is realized’.34 Ghannushi goes so far as to say that the umma, as the source of all political authorities, is ‘the possessor of supreme sovereignty in matters of governance via its election, supervision, accountability, cooperation with and removal of the ruler’.35 But, a major move in modern Islamic political thought and constitutional practice is to ground the authority not only of the ‘secular’ executive rulers, but also that of ‘religious’ authorities ( jurists exercising some supervisory role over the executive and legislative powers) on popular consent and election. In the theory outlined by Ghannushi, he is very clear that even if select, elite bodies of representatives are formed and exercise a mediating fiduciary role (as with the scholars in the traditional siya¯ sa sharʿiyya conception), their own limited representative authority is derived exclusively from popular ratification and not their own epistemic claims. (By contrast, as recently as 1922, when the Syrian-Egyptian scholar Rashid Rida wrote a treatise on the Caliphate in anticipation of its demise, he asserted the authority of scholars and other elites forming the ‘People Who Loose and Bind’ to take up the right to constitute a new political system on their own self-appointed authority, without any popular ratification or consent.) It is through the idea that even experts in Islamic law derive their political authority from popular authorization that some of Ghannushi’s most interesting views about the umma’s ultimate application of the Shariʿah in political life emerge. On the one hand, he asserts the absolute force of divine sovereignty, even quoting Qutb approvingly: man is not the possessor of original right [s․a¯․hib ․haqq as․¯ı l] over himself or others but is only a vicegerent [mustakhlaf ] or agent. He is not the possessor of (the right to) command or supreme sovereignty, but is only the possessor of a right to an ordained authority [sult․a mah ․ku¯ma] by the supreme legislative authority emanating from God. His only choices are to worship God in accordance with the covenant of vicegerency [mı¯tha¯ q al-istikhla¯ f ] or to reject it and be ranked amongst the unjust, corrupt infidels.36 On this view, it is the umma’s task to implement the Shariʿah, and it does this by entrusting the jurists with legislative authority. But at the same time, he refers to the umma as a ‘source of legislation’ (mas․dar al-tashrı¯ʿ) and describes the umma as ‘participating in divine will’. Ghannushi derives from the doctrine of the ‘caliphate of man’ precisely a kind of popular control over the application of law in an Islamic state. While we have seen that Ghannushi rhetorically asserts the sovereignty of God’s law over any popular legislation, what is ultimately important is not only the direct interpretation of the Shariʿah and what rules it prescribes, but the higher-order adjudication of what in the Shariʿah is a timeless constraint on the umma and what is subject to popular deliberation. For example, in his extensive and 411

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forceful defence of the ‘Text’ as the first pillar of Islamic political order and the originating and supreme authority within it, Ghannushi writes that the reference to ‘Text’ and ‘Shariʿa’ as supreme authority and source of all other powers is not a reference to ‘positive jurisprudence [ fiqh] and expert reasoning as to the details [of the law]. Rather, perfection – which is a description of the Shariʿah – is not in the particulars but only in the generalities’.37 The entire dilemma, and essential ambiguity in Ghannushi’s hybrid conception of sovereignty, is expressed a few pages later at the end of his core exposition of the meaning of divine sovereignty: The foundations of this [ just, divine] law are not posited by a majority of society, or a dominant class, or even a people preoccupied with its own partial interest, but only by God, the Lord of all. It is enforced, explained and applied to new realities through new specific acts of legislation by a human body chosen and supervised by the people. The people thus has sovereignty over this body, involving appointment, supervision and removal. This is the authority of the people [sult․at al-umma], or consultation. Does seeing ordinary, political legislation as a kind of popular enactment not only of siya¯ sa law but also the Shariʿah itself raise complex questions about the sacralization of politics and the profanation of the Shariʿah? Consider Ghannushi’s definition of the living Shariʿah as that which the people ‘enforce, explain and apply to new realities through new specific acts of legislation’, in which the people are not only authorized to act politically in the world, but its political acts are seen to represent the Shariʿah. The people’s political action is not observing or abiding by the boundary between religious law and political action but creating it. Insofar as Ghannushi stresses the idea of the universal Caliphate and the description of politics as the umma’s discharging of its half of the contract of vicegerency, there appears a kind of sacralization of politics. We see that Ghannushi’s assignment to the umma of the sovereign right not only to control secular rulers but also to determine what it means to ‘apply the Shariʿah’, what is timeless and binding in God’s law and what is always a matter of collective judgement and discretion, suggests the possibility of a popularized collapsing of fiqh and siya¯ sa. In such a scheme, the idea of a theoretical constitutional distinction between a legislative authority empowered to enact laws based on mas․lah․a but which is constrained by a juridical authority empowered to declare Shariʿah-violative laws ultra vires seems to dissolve.

Notes 1 While this idea is associated with Hobbes and others, for a more modern statement of it, see John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995). 2 See, for example, Khaled Abou El Fadl, ‘Constitutionalism and the Islamic Sunni Legacy’, UCLA Journal of Islamic and Near Eastern Law 1 (2001): 67 and ‘The Centrality of Sharı¯ʿa to Government and Constitutionalism in Islam’, in Constitutionalism in Islamic Countries: Between Upheaval and Continuity, ed. Rainer Grote and Tilmann Röder (New York: Oxford University Press, 2012), 35–61. 3 Muhammad Rashid Rida, Al-Khilafa (Cairo: al-Zahraʾ li-l-Iʿlam al-ʿArabi, 1988 [1922]). 4 Ed. and repr. in Muhammad ʿImara, Maʿrakat al-Islam wa-Usul al-Hukm (Cairo: Dar al-Shuruq, 1989), along with a number of primary source texts related to the controversy surrounding the publication of ʿAbd al-Raziq’s manifesto, including an extract from Al-Islam wa-Usul al-Hukm and other articles by ʿAbd al-Raziq defending his views, proceedings from the hearing held by the Committee of Senior Scholars (Hayʾat kiba¯ r al-ʿulama¯ ʾ) and their verdict condemning the book and stripping him of his title of ‘Islamic scholar’. 5 Muhammad Bakhit al-Mutiʿi, Haqiqat al-Islam wa-Us․u¯l al-Hukm (Cairo: al-Matbaʿa al-Salafiyya [1925]). 412

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6 ʿAbd al-Razzaq Ahmad al-Sanhuri, Fiqh al-Khilafa wa-Tatawwuruha li-Tusbih ʿUsbat Umam Sharqiyya (Beirut: Muʾassat al-Risala, 2001). See also Sanhuri’s doctoral thesis from the University of Lyon: A. Sanhoury, Le Califat (Lyon: Imprimerie Bosc Frères & Riou, 1926). 7 See, for example, his essay ‘Nizam al-Hukm’, in Hasan al-Banna, Majmuʿ Rasaʾil al-Imam al-Shahid Hasan al-Banna (Cairo: al-Maktaba al-Tawfiqiyya, n.d.). 8 Rashid al-Ghannushi, Al-Hurriyyat al-ʿAmma fi-l-Dawla al-Islamiyya (Beirut: Markaz Dirasat al-­ Wihdah al-ʿArabiyya, 1993). 9 Yusuf al-Qaradawi, Fiqh al-Dawla fi al-Islam: Makanatuha, Maʿalimuha, Tabiʿatuha, Mawqifuha min al-Dimuqratiyya wa-l-Taʿaddudiyya wa-l-Marʾa wa-Ghayr al-Muslimin (Cairo: Dar al-Shuruq, 1997); al-Siyasa al-Sharʿiyya fi Dawʾ Nusus al-Shariʿa wa-Maqasiduha (Cairo: Maktabat Wahba, 1998.). 10 Fahmi Huwaydi, Al-Islam wa-l-Dimuqratiyya (al-Qahira: Markaz al-Ahram lil-Tarjama wa-l-Nashr, Muʾassasat al-Ahram, 1993). 11 Muhammad ʿImara, Al-Islam wa-Falsafat al-Hukm (Cairo: Dar al-Shuruq, 1989); Al-Islam wa-l-­ Siyasa: al-Radd ʿala Shubuhat al-ʿAlmaniyyin (Cairo: Dar al-Tawziʿ wa-l-Nashr al-Islamiyya, 1993). 12 Muhammad Salim al-ʿAwwa, Fi-l-Nizam al-Siyasi lil-Dawla al-Islamiyya (Cairo: al-Maktab al-Misri al-Hadith, 1983); Al-Nizam al-Siyasi fi-l-Islam (Beirut: Dar al-Fikr al-Muʿasir, 2004). 13 Ahmad Kamal Abu al-Majd, Nazarat Hawla al-Fiqh al-Dusturi fi al-Islam (Cairo: Matbaʿat al-Azhar, 1962); ʿAli Mansur, Nuzum al-Hukm wa-l-Idara fi al-Sharı¯ʿa al-Islamiyya wa-l-Qawanin al-­Qadaʾiyya, Muqaranat bayna al-Shariʿah wa-l-Qanunayn al-Dusturi wa-l-Idari (Cairo: Matbaʿat Mukhaymar, 1965); Hazim ʿAbd al-Mutaʿal Saʿidi, Al-Nazariyya al-Islamiyya fi al-Dawla: maʿa al-Muqarana bi-Nazariyyat al-Dawla fi al-Fiqh al-Dusturi al-Hadith (Cairo: Dar al-Nahda al-ʿArabiyya, 1986); Fathi Wahidi, AlFiqh al-Siyasi wa-l-Dusturi fi al-Islam: Dirasa Muqarana fi Masadir al-Nizam al-Dusturi wa-­Nazariyyat al-Siyada wa-Tanzim al-Dawla wa-Bayan Huquq wa- Hurriyyat al-Insan wa-Damanat Tatbiqiha fi-lWathaʾiq al-Dawliyya wa-l-Nizam al-Islami (Gaza: Matabiʿ al-Hayʾa al-Khayriyyah bi-Qitaʿ Ghazza, 1988); Al-Sayyid Khalil Haykal, Mawqif al-Fiqh al-Dusturi al-Taqlidi wa-l-Fiqh al-Islami min Binaʾ wa-Tanzim al-Dawla (Cairo: Dar al-Nahda al-ʿArabiyya, 1989); Muhammad Kazim Mustafawi, Nazariyyat al-Hukm wa-l-Dawla: Dirasa Muqarana bayna al-Fiqh al-Islami wa-l-Qanun al-Dusturi alWadʿi (Beirut: Maʿhad al-Rasul al-Akram li-l-Shariʿah wa-l-Dirasat al-Islamiyya, 2002); Ahmad Muhammad Amin, al-Dawla al-Islamiyya wa-l-Mabadiʾ al-Dusturiyya al-Haditha: Dirasa li-Ahamm Mabadiʾ al-Dimuqratiyya al-Gharbiyya fi Dawʾ Ahkam al-Sharı¯ʿa al-Isla¯ miyya (Cairo: Maktabat alShuruq al-Dawliyya, 2005); Muhammad Ismaʿil Muhammad Mashʿal, Al-Dawabit al-Munazzima lil-Siyasa al-Sharʿiyya fi-l-Qanun al-Idari wa-l-Dusturi wa-l-Fiqh al-Islami: Dirasa Muqarana (Alexandria: Maktabat al-Wafaʾ al-Qanuniyya, 2013). 14 Muhammad Yusuf Musa, Nizam al-Hukm fi al-Islam (Cairo: Dar al-Maʿrifa, 1964); Subhi ʿAbdu Saʿid, Al-Hakim wa-Usul al-Hukm fi al-Nizam al-Islami: al-Siyasi wa-l-Iqtisadi wa-l-Ijtimaʿi wa-l-Fikri (Cairo: Dar al-Fikr al-ʿArabi, 1985). 15 ʿAbd al-Wahhab Khallaf, Al-Siyasa al-Sharʿiyya fi-l-Shuʾun al-Dusturiyya wa-l-Kharijiyya wa-l-­Maliyya (Cairo: Dar al-Ansar, 1977); Muhammad Yusri Ibrahim, Al-Musharakat al-Siyasiyya al-Muʿasira fi Dawʾ al-Siyasa al-Sharʿiyya (Cairo: Dar al-Yusr, 2011). 16 On this problem in early modern European thought, see Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge: Cambridge University Press, 2016), particularly Ch. 2 on the differences between Grotius, Hobbes and Pufendorf on the existence of a people separate from the sovereign government that represents it. 17 See, for example, the ‘Draft Islamic Constitution’ drawn up by al-Azhar’s Academy for Islamic Research in 1977 to be made ‘available to any country that wishes to model itself after the ­Islamic Sharı¯ʿa’. Both English and Arabic copies can be found at http://www.tahrirdocuments. org/2011/07/the-project-for-an-islamic-constitution-the-distinguished-al-azhar-academy-for-­ islamic-research. See also Muhammad Asad, The Principles of State and Government in Islam (Kuala Lumpur, Malaysia: Islamic Book Trust, 1980), which includes a set of reflections on social rights and ideological goals beyond the structure of governance. 18 On the modern history of the concept of ‘divine sovereignty’ in South Asia leading up to Mawdudi’s appropriation of it, and its subsequent history, see Muhammad Qasim Zaman, ‘The Sovereignty of God in Modern Islamic Thought’, Journal of the Royal Asiatic Society, 25(3) (2015): 389–418. 19 Said Amir Arjomand, ‘Islamic Constitutionalism’, Annual Review of Law and Social Science 3 (2007): 115–40. 20 Translated and published as ‘Political Theory of Islam’, in Islam: Its Meaning and Essence, ed. ­K hurshid Ahmad (Islamabad, Pakistan: IPS Press, 1975), 147–71. 413

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21 Ibid., 159. 22 Ibid., 161. 23 Trans. and coll. in Syed Abul ʿAla Maudoodi, Islamic Law and Constitution, ed. Khurshid Ahmad (Karachi, Pakistan: Jamaat-e Islami Publications, 1955). 24 Ibid., 34. 25 A good example of this is the above-cited book by Muhammad Asad, The Principles of State and Government in Islam. In this work, Asad argues passionately against secularism in politics and mere rationalism in ethics, insisting that any Muslim society must derive its ethical certainty from religion and its legal structure from the Shariʿah. But he also limits the absolutely binding aspects of the Shariʿah to precepts that can be grounded indisputably in revealed texts, suggesting that ‘it is reasonable to assume that the Law-Giver never intended the Sharı¯ʿa to cover in detail all conceivable exigencies of life. He intended no more and no less than to stake out the legal boundaries within which the community ought to develop, leaving the enormous multitude of “possible” legal situations to be decided from case to case in accordance with the requirements of the time and of changing social conditions’ (p. 12). 26 Maudoodi, Islamic Law and Constitution, 57. 27 Ibid., 62. 28 Ibid., 83. 29 Ibid., 89. 30 Ahmad Kamal Abu al-Majd, Nazarat Hawla al-fiqh al-Dusturi fi-l-Islam (Cairo: Matbaʿat al-Azhar, 1962). 31 Ibid., 25. 32 Ibid., 26. 33 Ibid., 27. 34 Ghannushi, Al-Hurriyyat al-ʿAmma, 41. 35 Ibid., 71. 36 Ibid., 99. 37 Ibid., 101.

Select bibliography and further reading Al-Hibri, Azizah Y. ‘Islamic Constitutionalism and the Concept of Democracy’. Case Western Reserve Journal of International Law 24(1) (1992): 1–27. Arjomand, Said Amir (ed.). Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran and Afghanistan (London: Bloomsbury Publishing, 2008). Feldman, Noah. ‘Islamic Constitutionalism in Context: A Typology and a Warning’. University of St. Thomas Law Journal 7(3) (Spring 2010): 436–51. Grote, Rainer, and R. Tilmann. Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford: Oxford University Press, 2012). Hirschl, Ran. Constitutional Theocracy (Cambridge, MA: Harvard University Press, 2011). Lombardi, Clark B. ‘Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of the Shari’ah in a Modern Arab State’. Columbia Journal of Transnational Law 37(1) (1998): 81–123. Lombardi, Clark B. ‘Designing Islamic Constitutions: Past Trends and Options for a Democratic ­Future’. International Journal of Constitutional Law 11(3) (2013): 615–45. Quraishi-Landes, Asifa. ‘Islamic Constitutionalism: Not Secular, Not Theocratic, Not Impossible’. Rutgers Journal of Law and Religion 16(26) (2014): 553–79. Rabb, Intisar A. ‘We the Jurists: Islamic Constitutionalism in Iraq’. University of Pennsylvania Journal of Constitutional Law 10(3) (2007): 52–79. Rutherford, B. K. ‘What do Egypt’s Islamists Want? Moderate Islam and the Rise of Islamic Constitutionalism’. The Middle East Journal 60(4) (2006): 707–31. Schirazi, Asghar. The Constitution of Iran: Politics and the State in the Islamic Republic (New York: I. B. Tauris, 1998). Sultany, Nimer. ‘Against Conceptualism: Islamic Law, Democracy, and Constitutionalism in the ­A ftermath of the Arab Spring’. Boston University International Law Journal 31 (2013): 435–63.

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25 Islam, constitutionalism and democratic self-government Mohammad H. Fadel

Introduction The revolutionary events that engulfed the Arab world beginning with the fall of the T ­ unisian dictator, Zain al-ʿAbidin Ben ʿAli, in January 2011 brought to the fore long-­standing concerns about the relationship of Islam to democracy. With the failure of the January 25th Revolution in Egypt to usher in a democracy, the collapse of Syria into an all-out civil war, and the establishment of a fragile democracy in Tunisia, conventional analysis has laid the blame for the failure of these revolutionary moments to consolidate democracy on the uncivil and undemocratic role that Islam plays in Arab societies, with Tunisia proving the point: its provision success was largely a result of the fact that its Islamist movement, the Nahda, had become sufficiently diluted in its Islamic commitments that consolidation of democratic rule became possible. Assuming this is true, then the problem of democratization in the Arab world is essentially a theological problem: Muslims, to one extent or another, must either cease being Muslim, or radically revise their inherited understanding of Islam, in order to create space in which democracy can take root. Presumably, the reason why religion must retreat to make room for democracy is that there is an inherent and un-resolvable tension between the claim of democracy that it is the people who should rule, and the claim of religion (at least Islam) that God should rule. Even if this were true, however, and even if we imagined a radical reformation of Islamic teachings that satisfied the demands of those who wish to see Islam retreat so that democracy takes root, we would still need to have an Islamic account of democratic self-governance, so long as it is plausible to believe that at least a substantial minority of Muslims will continue to adhere to traditional Islamic beliefs. This is so because theocracy is not the only threat to democracy. Democracy also requires an active body of citizens that voluntarily complies with the law. If a substantial portion of the citizens refuses to accept the duties of citizenship and the legitimacy of state law because they deem the obligations of citizenship and the substance of state law to contradict their obligations to God, there is a grave risk that the state will fail in winning the voluntary cooperation of the citizens. In this case, the state will inevitably have to rely on force to implement its will, thereby reinforcing authoritarian rule. As long as a substantial number of citizens in a polity believe in divine sovereignty, therefore, even if that 415

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sovereignty is only actualized in the next life, a theoretical account that reconciles the claims of divine sovereignty to the temporal sovereignty of the state must be provided.1 This chapter will provide an overview of how the pre-19th-century tradition of Sunni theology and law attempted to reconcile the claims of divine sovereignty to temporal sovereignty, and how its solution to this problem points the way to a normative theory of democratic self-government for Muslim peoples. It begins with a brief account of the distinctive political theology of Sunnism. It then turns to Shihab al-Din al-Qarafi’s understanding of the institutional architecture of Islamic law, and its relationship to the state and individual Muslims. The chapter then turns to the law of the caliphate and demonstrates how, in its mature form, it provided a solution to the problem of political ordering that emerges from Sunni political theology and Sunni conceptions of law by offering a model of government that incorporated the fiduciary ideals found in both consensual relationships, such as the private law of agency, and in non-consensual relationships, such as the duties of guardians over orphans, fathers over minor children, and administrators of endowments to the endowments’ beneficiaries. The Sunnis’ fiduciary conception of state provided a normative basis for both limiting state power and authorizing it to make positive law. Although such law was not justified by reference to revelation, it could nevertheless be morally binding, provided it met certain pre-requisites (shuru¯․t), even if its content went beyond that which revelation commanded. Finally, the Sunni fiduciary theory of the state also provides normative grounds for explaining why democracy is the most effective means of actualizing the Sunni ideals of government insofar as it is the most effective means of giving effect to the ideal of representation that is at the heart of Sunni ideals of political legitimacy. The chapter will conclude with examples of how this Sunni theory of the state could be used to legitimate popular government with robust legislative powers that would authorize the promulgation of morally binding positive law that could resolve many of the historically controversial rules of historical Islamic law without relying on either controversial or far-fetched interpretations of revelation.2

1 Sunni political theology and the problem of political ordering Muslims, along with non-Muslim scholars, are in general agreement that the Prophet Muhammad, after emigrating to Medina, took on the functions of a secular ruler in addition to that of his prophetic office.3 But how would the nascent political order that he established first in Medina and then the entirety of the Arabian Peninsula that he subsequently brought under its rule during his lifetime be governed after his death, on the assumption that it was to survive his death? Muslim chronicles report that the Prophet’s contemporaries disagreed sharply on even the fundamental question of whether the Prophet’s state would continue after his death, much less how its governance should be organized if the state continued in existence. The Wars of Apostasy resolved conclusively the question of whether the Muslim community was to continue as a political community after the Prophet’s demise, but it did not resolve the underlying disputes over how it should be governed. Three different solutions to this dilemma were offered. The first was committed to a kind of post-Prophetic charismatic rule centred broadly around notions of fidelity to the Prophet Muhammad’s descendants through the marriage of his daughter Fatima and his cousin and son-in-law ʿAli b. Abi Talib, and their two sons, Hasan b. ʿAli b. Abi Talib and Husayn b. ʿAli b. Abi Talib, the Prophet Muhammad’s only grandsons. This sentiment eventually crystallized into the Shiʿa branch of Islam, whose 416

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solution to post-Prophetic governance of the Muslim community was that a member of his household should serve as his successor, known as the Imam. The legitimacy of the Muslim community was guaranteed by the Imam who, being protected by God from error (maʿs․u¯m), ensured that the Muslim community continued to be faithful to divine command. The second option was committed to a radical egalitarian conception of political legitimacy combined with Puritan-like zeal in adherence to divine law. This group, which later came to be known as the Khawarij (the secessionists), believed that the Muslims should be ruled by the most virtuous living member of the community, without regard to either his tribe or race. Non-repentant sinners, however, were excluded from the community of Islam, and accordingly Muslims were under a religious duty to depose any ruler who committed a major sin. The Khawarij therefore believed that the community after the Prophet’s death could maintain its integrity only if it submitted to its most virtuous member, and expelled from its midst all those who were unwilling to abide strictly by Islamic norms. The third option was pursued by the majority of the Muslim community, and later came to be known as the Sunnis. For this group, the community could govern itself through its own choice (ikhtiya¯ r) of a ruler. In contrast to the Shiʿa, they rejected the notion that leadership of the community was limited to the Prophet Muhammad’s descendants, or that the leader should have special charismatic qualities that would guard against error. Against both the Shiʿa and the Khawarij, they rejected the doctrine that only the most virtuous member of the community could serve as the community’s leader, holding instead that the community was free to select any adult male who possessed the minimum combination of moral integrity (ʿada¯ la), knowledge of the law (ʿilm) and competence (kifa¯ ya). While the Sunni theory of succession imposed some important restrictions on who was eligible to lead, it did not impose superhuman requirements. The Sunnis had confidence in the ordinary person’s ability to act morally in accordance with the norms of divinely revealed law, without need either for the assistance of a charismatic Imam who is protected from sin, or a ruler of heroic moral virtue that never sins. The integrity of the community for the Sunnis was assured not by the special qualities of the ruler, but rather by the ability of the community to know, and adhere to, divine law. This in turn assumed that the person of average intelligence was capable of understanding and adhering to the law, and was not in need of a special person or class of persons to make the law accessible. Accordingly, Sunni jurists, while not reflexively and inflexibly committed to literal interpretations of revelation, were committed to an objective theory of revelation’s language which ensured that divine law was accessible to anyone who mastered the Arabic language. Sunni political theology, by denying the notion that any person had a personal right ­(istih ․qa¯q) to lead the community, whether by virtue of charismatic descent, as the Shiʿa claimed, or by virtue of superior virtue, as the Khawarij claimed, faced a peculiar moral quandary when it came to justifying political power: because all Muslims were substantially equal with respect to their potential to capacity to serve as leader, their potential for moral virtue, and their potential to know the law, on what basis could any of them claim a right to command the obedience of others who were their substantial equals? Indeed, as the Mamluk-era Shafiʿi jurist Ibn ʿAbd al-Salam pointed out, no human being was naturally more deserving of the right to command the obedience of others than anyone else. Moreover, obeying another human being, in certain circumstances, could be a potentially blasphemous act, if the obedience was motivated by the false belief that another human being was the effective cause of actual benefit or harm, rather than the recognition that God is the only real benefactor. Obedience to another human being was therefore contrary to the fundamental principle of human independence and the theological principle that humans should serve only God, not one another. 417

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The duty of obedience, therefore, could only be justified by explicit permission from God Himself. God, according to Ibn ʿAbd al-Salam, permitted people to obey only legitimate rulers, but not ignorant kings and military rulers who were distinguished from others only by virtue of their possession of superior temporal power.

2 Governance among equals, agency and the contract of the caliphate as constitutional government The central problem posed by Sunni political theology was how to justify governance among equals. Ibn ʿAbd al-Salam already pointed out one obvious solution to this problem: to the extent human beings are all equal insofar as they are all servants of God, and God will hold them accountable for their actions in the next life, obedience to the law can substitute for obedience to human beings. And indeed, fidelity to the law was an important element of normative Sunni political theory, but as I will explain more fully below, the law was not self-executing. Even a minimalist conception of the law required the creation of institutions which could resolve disputes conclusively, effectively pursue the common good, and administer rights of the community. How was it possible to justify, for example, a moral duty to appear before a judge and submit to his judgment, even as it was acknowledged that there was nothing in the judge’s person that assured litigants that his rulings were always in accordance with divine law? The solution that Muslim jurists ultimately proposed to this dilemma, and which formed the basis of the mature theory of the caliphate, is that the duty arises not because of a hierarchical relationship between the judge and the litigant, such that the litigant is obliged to submit to the court’s jurisdiction over him because of the judge’s elevated place in the social and political hierarchy; rather, it is because the judge acts as a representative of the community, of which the litigant is a member, and just as a principal is bound by the actions of his agent in the context of private law, so too is the ‘public’ bound by the lawful decisions of its representatives. In other words, by obeying the judge, the individual, in Sunni political thought, is doing nothing more than obeying himself.4 By analogizing public officials to agents and fiduciaries, Sunni jurists established a standard of legitimacy that included both substantive and procedural norms. As a matter of procedure, all legitimate authority could only be created via a delegation of powers, directly or indirectly, from the public. Because all power is delegated, office holders can only perform those acts that fall within the scope of their delegation. An act may be substantively lawful, but if it was not within the jurisdictional competence of the office holder, the action would be invalid because the office holder lacked jurisdiction to undertake the action in question. This result is perfectly analogous to the rule that applies to an agent of a natural person who performs a substantively lawful act, e.g. agrees to purchase Blackacre, but because his principal had only given him authority to purchase another tract of land, e.g. Greenacre, the contract, though lawful, fails to bind the principal. While jurisdictional limitations on the authority of agents are external to the agency relationship insofar as such particular limitations are contingent on the specific terms of any appointment, the agency relationship also places internal limits on the kind of actions the public may authorize their representatives to perform on their behalf. This is because in the Islamic law of agency, a principal lacks the power to appoint an agent to perform an illegal act (maʿs․iyah). Accordingly, the Muslim public lacks the power to authorize public officials to commit acts in violation of the law. Accordingly, if a public official knowingly performs a substantively illegal act, the public official becomes liable in the same way that a private person would, even if, when he performed that act, he was obeying the ostensible command 418

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of a superior public official. Public officials only enjoyed immunity for their official acts when they could plausibly believe that their actions were substantively lawful. Principles of agency law were therefore adopted from the domain of private law and applied to the actions of public officials to establish that government actions, to be lawful, had to issue from an actor who had been properly delegated the authority to act in that domain, and that the action in question was, in fact, substantively lawful. The contract of the caliphate, by establishing the principle that public officials are the agents of the governed, established a norm of constitutional government that limited the powers of public officials to those which met both the procedural limitations of the applicable grant of jurisdiction, and the substantive norms of the law. Whether the Sunni jurists, in addition to affirming the idea of limited government, also accepted the notion of self-government, i.e., the power of the political community to make laws for itself, will be discussed in further detail below, but before we can answer that question, we must first consider the different kinds of rules recognized within Islamic law, and their respective relationship, if any, to the existence of political institutions.

3  Islamic law and the state A commonly held view among scholars of Islam is that Islamic law is a pre-political jurists’ law in the sense that it exists, conceptually at least, prior to the founding of the state. As a consequence, the state’s role is limited to enforcement of the body of rules, known as fiqh, developed by the Muslim jurists. The state, therefore, has no positive role in the development of the norms of Islamic law, which is understood to be a purely interpretive exercise. From this perspective, the Islamic constitution, although it provides for limited government, does not permit legislation beyond that which is found, or reasonably derivable from, revelation. According to prevailing accounts of Islamic legal history, the impossibility of legitimate, ­human-made positive law produced an enormous chasm between the theoretical ideals set out in the jurists’ law and the lived realities of Muslim societies. This gap between ‘theory and practice’ in turn led to the establishment of a parallel system of ad hoc law, known as siya¯ sa.5 This system was rooted in the raw power of the state and was justified solely on the jurisprudential doctrine necessity (d․aru¯ra). Although later authors, such as Ibn Taymiyya and others, attempted to subject siya¯ sa to the normative discipline of the Shariʿah, giving rise to what they called siya¯ sa sharʿiyya, modern scholars largely continue to view such rules as existing outside the normative framework of Islamic law proper, which they tacitly limit to the rules of fiqh. In the modern age, where state-promulgated law has largely displaced the norms of fiqh in Muslim states, the notion that a state is constitutionally disabled, from an Islamic perspective, to legislate positive law, leads to the conclusion that Islamic law is dead, or the even bolder claim that an Islamic state is conceptually impossible. I believe these conclusions are based on the erroneous assumption that the pre-19th ­century Islamic constitution did not authorize human-made positive law. To establish this point, it is useful to consider views of the 13th-century Egyptian Maliki jurist, Shihab alDin al-Qarafi, on the different kinds of rules that were operational in the late Ayyubid and early Mamluk states. While there are many different ways to classify the rules of Islamic law, Qarafi introduces a distinction between: 1) rules that are established by virtue of revelation (ma¯ taqarrara fı¯ as․l al-sharʿ); and 2) rules that are established by a post-revelation act of a human being pursuant to that person properly exercising a power granted to him or her by God. The first category of rules includes: a) uncontroversial rules of Islamic law (al-mujmʿa ­ʿalayha¯ ), such as the obligation of a debtor to repay his debt, or that the punishment for theft 419

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is amputation of the hand; b) controversial rules of Islamic law derived through the reasonable interpretation of revelation (al-mukhtalaf fı¯ha¯ ); and c) the universal rules of Islamic jurisprudence (al-qawa¯ ʿid al-kulliyya). These first-order rules are discovered exclusively through the hermeneutical techniques and juridical principles set out in the principles of theoretical jurisprudence, and for this reason, they are properly described as pre-political rules: neither their ontological existence, nor our apprehension of them as morally obligated individuals (mukallafu¯n) is contingent on the existence of any particular political order. These pre-political rules do not exhaust the body of rules that make up Islamic law, however, the first-order rules include rules that authorize individuals to make rules for themselves by exercising a power granted to them by revelation. These are the second-order rules that make up the second category of the rules of Islamic law identified by al-Qarafi. Al-Qarafi gives two examples of first-order rules that confer rule-making power on all of humanity, the vow (nadhr) and the oath (al-yamı¯n).6 Another such first-order rule, according to al-­Qarafi, is the right of public officials to make rules for the public, a conclusion he justifies using a rational proof and a legal proof. The rational proof is the a fortiori analogy: Insofar as God granted the power to originate post-revelatory rules to all human beings, without regard to their learning or in view of a pressing necessity, through the devices of the vow and oath, a fortiori God granted that same authority to public officials, on account of their lofty position and the pressing necessity of making rules to bring an end to conflict, suppress aggressors and eliminate disorder.7 In this latter case, however, the rule maker’s decision does not establish a new, post-revelatory rule unless the rule maker has been properly appointed to an office that grants him the power to make rules, and has appropriately exercised that power in accordance with its terms. Thus, the market inspector may properly establish post-revelatory obligations with respect to matters falling within his jurisdiction, such as matters involving public streets in the city, but he may not litigate claims arising out of contracts.8 Second-order rules derived from the exercise of powers delegated to public officials are therefore explicitly dependent upon the existence of a legitimate political order. Accordingly, one can appropriately characterize the rules of Islamic law produced via the mediation of political institutions, as political rules, and thereby distinguish them from the pre-political rules of fiqh that are the product of learned interpretation of revelation. In a polity subject to an Islamic constitution, then, three kinds of rule are operative according to al-Qarafi’s analysis. The first are the rules of fiqh, which can be understood to form the basic law of an Islamic polity. All things being equal, individuals are presumptively entitled to act in accordance with their rights under the rules of fiqh, and are subject to the obligations the fiqh imposes on them, in each case, as articulated through an appropriately constituted legal opinion ( fatwa). In the event of conflict between rights holders, or potential conflict between rights holders, however, rights holders were obliged to submit their dispute to a judge (qa¯․d¯ı or ․ha¯ kim) whose decision, provided it was not procured by fraud, and that the judge ruled based on a reasonable interpretation of revelation, constituted an origination (insha¯ ʾ) of a particular rule that conclusively settled that dispute, both as a temporal matter and in the hereafter. The result of a valid judicial decision, moreover, not only forever bound the litigants, it also required all jurists to change their opinion regarding the proper resolution of the case and to adopt the solution applied by the judge. It is in this latter sense that the judicial decision constitutes a post-revelatory rule: in the absence of a judge’s decision, it would be the case that numerous rules could have applied to the dispute, some of which would be in contradiction, as would be the case of a marriage of a woman who enters into a marriage contract without the permission of her father. While such a marriage would be valid according to the Hanafis, it would be invalid according to the Malikis, and before a 420

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judicial ruling conclusively determining the marriage’s validity, jurists of both schools would be entitled to issue legal opinions regarding the marriage’s validity in accordance with the teachings of their respective legal schools. Once a Hanafi judge rules on the case, however, and determines it is valid, even the Maliki jurists are under an obligation to recognize that marriage as valid. While final judicial rulings are universally binding, in the sense described above, they are limited in effect to the litigants. Accordingly, the next case involving a woman who marries without her father’s consent would be subject to the same conflict between the Hanafis and the Malikis that existed prior to the judicial ruling in the prior example. That is because judges do not have authority to resolve, conclusively, disputes about the correct rule of divine law, a matter that al-Qarafi states is a matter for the next life. Accordingly, juristic differences in the fiqh cannot be universally and prospectively resolved through a system of binding precedent as one sees in modern common law systems: the only mechanism in the fiqh for the universal and prospective resolution of a substantive dispute regarding the content of a rule of law is for the jurists themselves to settle on a single rule, resulting in a consensus (ijma¯ ʿ). Al-Qarafi, however, recognizes a third kind of rule making that is capable of generating universally binding norms, which he calls tas․arruf bi-l-imama (administrative act). Unlike a judge’s interstitial rule-making activity, which represents the union of the pre-­political rules of the fiqh represented by the universal, but non-binding legal opinion ( fatwa), with the particular evidence (h․ija¯ j) produced by litigants in the context of litigation, to produce the binding and unassailable judicial decision (h․ukm), an administrative act is based on the ­office holder’s interpretation of empirical facts in light of the public good (al-mas․lah․a al-ʿa¯ mma). An administrative act is neither a legal opinion, insofar as it is not based on the interpretation of revelation, nor is it a judicial decision, insofar as it is not based on courtroom evidence. Although it is prospectively and universally binding like a legal opinion, it is a binding rule of law, unlike a legal opinion which binds only those who accept it as a true conception of the law. Although an administrative act is like a judicial ruling insofar as it is binding, it is subject to revision and even repeal in its entirety by a subsequent office holder if the successor believes the rule is no longer consistent with the public good. Al-Qarafi’s taxonomy of the rules of Islamic law, therefore, provide an important corrective to the notion that Islamic law is limited to rules derived from the interpretation of revelation. While it is true that such rules, which are set out in the theoretical treatises of the jurists and communicated to the public through the mechanism of the legal opinion (al-fatwa), represent the basic law of the Muslim community and that these rules are pre-­ political, public officials complete the community’s law by making supplemental law, either interstitially on a case-by-case basis through the binding and irrevocable mechanism of the judicial ruling (al-h․ukm), or on a wider, albeit revocable, basis, through the mechanism of an administrative act that relies on the office holder’s determination of the public good (al-mas․lah․a). This last category, I argue, is effectively recognition of the right of public officials to ‘legislate’ rules that bind the community, not because they represent either a true or probable interpretation of divine will, as is the case with a legal opinion, but because such positive acts are necessary to achieve the well-being of the community. Al-Qarafi, while expressly creating normative space within Islamic jurisprudence for legitimate public-interest legislation, failed to provide a systematic account that set forth the relationship between the power of public officials to legislate in accordance with the public interest, and the rights of individuals as set out in the basic law of the community. Nevertheless, it is impossible to avoid the conclusion that for al-Qarafi, where the public official exercised public-interest powers appropriately, that rule displaced any rights an individual 421

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might purport to enjoy under an otherwise valid legal opinion. It would make no sense, for example, for al-Qarafi to defend the Maliki view that the right of a soldier in the Muslim army to despoil an enemy warrior that he himself killed was contingent on the prior permission of the ruler, and then to grant that a follower of the Shafiʿi school, which believed that soldiers did not need the prior permission of the ruler to exercise this right, could do so even in circumstances where the ruler, exercising his prerogatives as head of the Muslim community, prohibits them from so doing. At least in circumstances where the public official exercises his public-interest law-making power appropriately, then, we can be reasonably confident that in al-Qarafi’s view, such rules pre-empt the rights of individuals in the public to act in accordance with what would otherwise have been legitimate conceptions of their rights as established in the fiqh. We now must turn to the unexplored question in al-Qarafi’s theory, namely, what must a public official do in order to establish that he exercised this law-making power appropriately? In so doing, we admit that we are necessarily engaged in a reconstructive enterprise: in contrast to the rules that determined whether a legal opinion was valid (us․u¯l al-fiqh), or whether a judicial ruling was valid (the rules of fiqh governing adjudication), there were no systematic treatises, as far as I know, that discussed the conditions that rendered the exercise of this power valid. Instead, various particular rulings are found that regulate the conditions that must be satisfied so that an administrative act is valid. These conditions require us to return to the model of agency that we argued in the previous section was constitutive of the Islamic constitution as understood by Sunni jurists. So it is to that topic to which we next turn.

4 Agency, accountability of public officials and the conditions of valid administrative law making Al-Qarafi’s taxonomy of the rules of Islamic law not only expressly made normative room for binding legislation based on the public good rather than interpretation of divine law, it also implied that when this power was appropriately exercised, it had the effect of pre-empting contrary rules of the fiqh. His analysis, however, did not attempt to draw out explicitly the conditions that would render the exercise of this public-interest-based rulemaking power legitimate. To reconstruct what these conditions are, we necessarily need to return to the principles of agency that underlie the Sunni constitution. In Section 2 of this chapter, we argued that Sunni jurists adopted the fiduciary principles found in the private law of agency to solve the basic problem of political ordering that Sunni political theology introduced: how to make governance among equals legitimate. By declaring that public officials were agents of the public, Sunni jurists established the principal of limited government, both in the procedural sense that a public official could not exercise powers that had not been legitimately delegated to him, and in the substantive sense that a public official lacked the power to act in contravention of the law insofar as the principles of agency law did not contemplate appointing an agent for the furtherance of illegal ends. Section 2 stopped, however, with the question of whether the Sunni constitution contemplated the possibility that public officials could make law, or whether they were limited to enforcing the basic law – the fiqh – of the Muslim community. Section 3 made clear, however, that later Muslim jurists, al-Qarafi being a foremost example, did permit public officials to make law, based solely on the public good, even if it had the effect of restricting recognized rights that existed in basic law. In this section, we show how the fiduciary values of agency allowed post-Qarafian Muslim jurists to develop conditions that regulated the use of this power, but that, consistent with the model 422

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of agency that underlie the Sunni constitution, they also explicitly recognized that public officials, when they made rules based on the public good in a manner that satisfied certain conditions, had the authority to prohibit conduct that the basic law deemed permissible, or oblige conduct that in the view of the basic law was a matter of indifference. Moreover, when public officials’ rule-making activities were valid, the obligation on the part of the public to obey such public-interest rules was not merely grounded in prudence, but represented a genuine moral obligation before God. The first condition for the validity of an administrative act was that it had to be consistent with the public good of the Muslim community, in accordance with the duty of the agent to act in accordance with the well-being of the principal.9 Accordingly, al-Qarafi stated that administrative acts of public officials are not binding unless they satisfy a public standard of rationality, meaning, they result either in an absolute increase in well-being (mas․lah ․a kha¯ lis․a), a net increase in well-being (mas․lah․a ra¯ jih․a), an absolute decrease in harm (darʾ mafsada kha¯ lis․a), or a net decrease in harm (darʾ mafsada ra¯ jih․a).10 The second condition, albeit one not entirely free of controversy in its details, was that the subject matter of the relevant decree lie within the affairs of the public (al-mas․a¯ lih․ al-ʿa¯ mma), rather than the private affairs of individuals. Maliki and Shafiʿi jurists in particular disagreed with respect to commands of the ruler directing the public to perform supererogatory acts of ritual devotion: the Malikis denied any effect to such commands because such acts, although religiously commendable, are not part of the affairs of the public, while the Shafiʿis believed they become obligatory by virtue of the ruler’s command to perform them. Both groups of scholars agreed, however, that with respect to a governmental command to perform (or refrain from) an act that the revealed law deemed permissible (muba¯․h), the command must relate to the public good before it could become an obligation by virtue of a governmental command.11 The third condition was that the public official issuing the command had to have a good-faith, subjective belief that his command was lawful, i.e. compliance with the command would not lead to sin, even if what was commanded was not mandatory by virtue of revelation.12 The fourth condition was that the recipient of the command, from his or her subjective perspective, must be able to comply with the command without committing a sin.13 The fifth condition was that the public official who issued the rule must be acting within the scope of his jurisdiction, whether by geography, subject matter or both.14 Accordingly, a judge appointed to hear family law cases in Cairo, for example, could not divorce a woman in Damascus, even if his verdict was substantively correct, nor could he invalidate a contract of sale in Cairo, even if, as a matter of substantive law, the contract is universally recognized as unenforceable. Finally, al-Qarafi added that judgments and rules made by a public official are not valid if they are tainted by a conflict of interest.15 If these conditions are satisfied, and the decision maker is untainted by a conflict of interest, the administrative act is valid and binding, both from a moral perspective and a prudential one. One historical example of juristic treatment of law making by government officials is found in a legal opinion issued by a 15th-century Shafiʿi jurist in the Mamluk era, issued in response to a question concerning the legality of a recently promulgated price-control regulation.16 The mufti concluded that the petitioner, who was apparently a follower of the Shafiʿi school of law, was morally bound to follow a controversial price-control regulation, even though the petitioner believed such a regulation to be unlawful. The mufti reasoned that so long as the ruler had a good-faith belief that the rule was permissible – and that would be satisfied in this case given the fact that the Maliki school of law permitted such regulations – and that the petitioner could comply with the rule without committing a sin, the rule bound him, both morally and prudentially.17 The difference between moral and prudential duties of obedience 423

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is not inconsequential from the perspective of the rule of law: if obedience in this case were only a prudential obligation, the merchant would be free to ignore it if he could do so without risking detection, for example. The fact that jurists recognized in this circumstance clearly a moral obligation on the part of Muslims to obey the rule, regardless of the ruler’s ability to enforce the command, and not one based simply on the ruler’s arbitrary power of the ruler, establishes clear evidence that they did not limit moral obligations to rules of conduct that were unequivocally established by revelation; rather, duly formulated human legislation could also generate moral obligations which, although not found in the basic law established by revelation, was nonetheless morally binding upon Muslims once the law was made. A ­ ccordingly, if the ruler prohibited smoking in public places, it became sinful to do so.18 While later jurists affirmed the moral nature of the obligations generated by valid governmental decrees, they did not provide an express theory explaining why the command of a government official could generate a moral duty above and beyond those imposed by revelation. Careful analysis of the pre-requisites that they required a governmental command to meet in order for it to generate both moral and prudential duties of obedience, however, suggests that the principle of legitimacy which was at stake was that of agency: whenever public officials acted in conformity within the ideals of what constitutes the Muslim community’s public agent, the Muslim community becomes morally bound to adhere to their decisions, just as a principal becomes morally bound by the duly authorized actions of his agent taken in conformity with the principal’s instructions. Just as al-Kasani declared that the caliph’s actions in appointing and dismissing judges is in reality the actions of the Muslim public, so too, then, the valid commands of public officials taken are nothing other than the actions of the Muslim public. The individuals constituting the Muslim public become bound not because the public official is accurately interpreting divine will, but rather because he has properly exercised the power of the Muslim public to pursue its well-being within the constraints imposed by the Shariʿah. In obeying the commands of public officials in that regard, individuals are only obeying themselves with respect to the conclusive, if provisional, determination of where the community’s temporal well-being lies.

5 Implications of the Sunni constitutional theory for modern Muslim-majority states Some Muslim scholars who are understandably concerned about the practical implications of contemporary calls ‘to apply the Shariʿah (tat․bı¯q al-Shariʿa)’ in the name of preserving the integrity of divine sovereignty have objected to such a programme, in part arguing that there is no such thing as applying divine law, and that in all instances, state law is necessarily human law. Moreover, these scholars have also suggested that there is an unbridgeable conceptual gap between divine law as an idea, and the idea of popular sovereignty that underwrites the modern state. Accordingly, Muslims should instead be content with preserving the Shariʿah as a reservoir of moral ideals that can be used as a source of inspiration for particular political projects or laws, but the state should never claim that it is ‘applying Islamic law’.19 Indeed, Wael Hallaq in a recent work goes even further, and argues that there is an absolute incompatibility between the idea of the Shariʿah and the idea of the modern state.20 More generally, the fear an ‘Islamic state’ creates even among observant Muslims is that the state will use its claim to be Islamic to silence all dissent, and claim that dissent to its policies amounts to disobedience to God. Secularists, on the other hand, while sharing that fear, also fear that there would be no room for democratic self-government in an Islamic state insofar as the legislative function would be an exercise simply of law finding through 424

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interpretation of revelation rather than law making by means of deliberation. Furthermore, any constitutionalization of Islamic law would lead to a result in which the pre-modern corpus of Islamic law determines the content of the state’s positive law and renders reform efforts, particularly in areas such as family law, impossible. A conception of an Islamic constitution developed from the model outlined in this chapter, however, responds to both of these concerns. First, it makes clear that in promulgating legislation, while there is at least a prima facie moral duty to obey the law (on the assumption that the state is in fact properly representative and the other Islamic conditions of legislative validity are satisfied), the duty to obey the law does not derive from its status as a true conception of divine law, but rather because it represents a proper manifestation of the public’s will in formulating and pursue its own good. This manifestation of the public’s will is not absolute, however, as individual members of the public, even if bound to adhere to the content of the law, remain morally free to contest both the legality of the rule, insofar as they may disagree with whether it represents a permissible understanding of divine law,21 and to insist on an excuse from adhering to the law if they can credibly claim that, from their subjective perspective, compliance with the law would cause them to sin. Second, the conception of an Islamic constitution set out here makes clear that the fiqh, although representing the basic law of the Muslim community, does not provide individuals with a set of non-negotiable and absolute rights and obligations that are outside the political process. Rather, they represent a kind of baseline set of entitlements that may be varied through the exercise of legitimate deliberation about the public good, so long as the revisions made to the rights and duties that are set out in the basic law do not either compel individuals to sin, or compel them to refrain from performing an obligatory act. Reforming rules of family law, for example, whether with respect to granting women equal capacity to enter the marriage contract or equal rights to exit it by divorce, could be accomplished as a manifestation of the public’s will to exercise its freedom by amending the terms of the marriage contract as set out in the fiqh by including various stipulations that go beyond the minimum set out in the basic law, just as a particular husband may do so in favour of his wife in their particular marriage contract. Instead of such legislation depending for its moral justification on controversial claims regarding the proper meaning or intent of divine revelation, such reforms would rest on the much firmer grounds (and metaphysically less controversial grounds) of a permissible exercise of the public’s freedom to determine what will result in its own collective well-being. What this analysis of Islamic constitutional law suggests, therefore, is that Muslims are not in need of any new theories of interpretation in order to justify the reform of the content of Islamic law. Indeed, to the extent that they continue to be fixated on interpretive reform of the basic law, they reinforce a paradigm of law that excludes, or at a minimum marginalizes, political deliberation about the public good in favour of a theological inquiry into the actual content of divine law that can never, at least within the theological assumptions of Sunnism, achieve even a temporary resolution. Islamic positive law, on the other hand, as set out in this argument, need not claim for its effectiveness more than that it represents a non-sinful conception of divine law, and that it is reasonably believed to be consistent with the public good, for it to constitute legitimate and binding law. And in any event, it also leaves open the possibility for criticizing, revising and even repudiating both assumptions with respect to any particular legislative act, thus preserving the political community’s freedom to make and revise laws for itself, without sacrificing the morally binding character of such laws for so long as they remain in force. What Muslims need, therefore, is not a better hermeneutics, but rather a better politics that can legitimately and effectively represent them. In short, what they need to effect reform of Islamic law is democracy. 425

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Notes 1 See, e.g., Thomas Hobbes, and J. C. A. Gaskin, Leviathan (Oxford: Oxford University Press, 1998). 2 A good example of implausible interpretations of revelation are attempts to interpret the use of the verb ․da-ra-ba in the notorious ‘beating’, verse 4:34, to mean ‘go away’ instead of ‘beat’. Neal MacFarquhar, ‘Verse in Koran on Beating Wife Gets New Translation’, New York Times, 25 March 2007, http:// www.nytimes.com/2007/03/25/world/americas/25iht-koran.4.5017346.html?pagewanted= all&_r=0 (accessed 24 July 2018). 3 The most famous dissident is the 20th-century Egyptian scholar, ʿAli ʿAbd al-Raziq, who denied that the Prophet Muhammad was ever a worldly ruler. See ʿAli ʿAbd al-Raziq and Mamduh Haqqi, Al-Islam wa-Usul al-Hukm: Bahth fi al-Khilafa wa-l-Hukuma fi al-Islam (Beirut: Dar Maktabat alHaya, 1966). 4 ‘The Caliph is merely the public’s messenger … and insofar as he is merely their messenger, his actions are the equivalent of acts done by the Muslim public. … Accordingly, when the Caliph removes a judge or a provincial governor, the judge or the provincial governor, as the case may be, is in fact removed from his position by virtue of that command, but neither is removed from office upon the Caliph’s death, because, in reality, neither was removed by virtue of the Caliph’s command, but rather by virtue of the public’s command to remove him (innama¯ al-khalı¯fatu bi-manzilat al-rasu¯l ʿanhum … wa-idha¯ ka¯ na rasu¯lan ka¯ na fiʿluhu bi-manzilat fiʿl ʿa¯ mmat al-muslimı¯n … inna al-khalı¯fa idha¯ ʿazala al-qa¯․d¯ı aw al-wa¯ lı¯ yanʿazil bi-ʿazlihi wa-la¯ yanʿazil bi-mawtihi li-annahu la¯ yanʿazil bi-ʿazl alkhalı¯fa ․haqı¯qatan bal bi-ʿazl al-ʿa¯ mma)’. Abu Bakr al-Kasani, Badaʾiʿ al-Sanaʾiʿ, 2nd edn (Beirut: Dar al-Kutub al-ʿIlmiyya, 1986), 16. 5 For an overview of the standard conception of the relationship of the Shariʿah to the state in Islamic history, see Mohammad Fadel, ‘State and Sharı¯ʿa’, in The Ashgate Research Companion to Islamic Law, ed. Peri Bearman and Rudolph Peters (Farnham, Surrey: Ashgate, 2014), 29–42. 6 A vow gives every adult the power to transform a morally commendable act (mandu¯b) into a morally obligatory one (wa¯ jib). An oath allows a person to transform the occurrence or non-occurrence of any event into a ground of legal obligation, e.g. ‘If I strike ʿAmr, my slave, Zayd, is free’. 7 Shihab al-Din al-Qarafi, Al-Tamyiz, 28. 8 Ibid., 168. 9 Abu al-Barakat Ahmad b. Muhammad b. Ahmad al-Dardir, Al-Sharh al-Saghir, ed. Mustafa Kamal Wasfi (Cairo: Dar al-Maʿarif, n.d.), 508 (an agent is obliged to act for the benefit of the principal (wa-faʿala al-wakı¯l al-mas․lah․a wuju¯ban … li-muwakkilihi)). 10 Shihab al-Din al-Qarafi, Al-Furuq (Beirut: ʿAlam al-Kutub, n.d.), 39. See also, Shihab al-Din Ahmad b. Muhammad Makki, Ghamz ʿUyun al-Basaʾir fi Sharh al-Ashbah wa-l-Nazaʾir (Beirut: Dar al-Kutub al-ʿIlmiyya, 1985), 369 (the actions of the Imam bind the public only if they are in the public good (al-qa¯ ʿida al-kha¯ misa: tas․arruf al-ima¯ m ʿala¯ al-raʿiyya manu¯․t bi-l-mas․lah․a)); Jalal al-Din alSuyuti, Al-Ashbah wa-l-Nazaʾir (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990), 121. 11 See, for example, Muhammad b. Ahmad b. ʿArafa, Hashiyat al-Dassuqi ʿala al-Sharh al-Kabir (Beirut: Dar al-Fikr, n.d.), 406–7 (iʿlam anna mah․alla kawn al-ima¯ m idha¯ amara bi-muba¯․h aw mandu¯b tajib ․ta¯ ʿatuhu idha¯ ka¯ na ma¯ amara bihi min al-mas․a¯ lih․ al-ʿa¯ mma); Sulayman b. Muhammad b. ʿUmar, Hashiyat al-Bijirmi ʿala al-Khatib (Beirut: Dar al-Fikr, 1995), 238 (duty to obey a command mandating the performance of an act that revealed law classifies as permissible becomes obligatory only if it relates to the public good, like refraining from smoking); Hashiyat al-Imam ʿAbd al-Hamid al-Shirwani ʿala Tuhfat al-Muhtaj (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, n.d.), 69, 71. See also, Al-Qadi Abu Bakr b. al-ʿArabi, Ahkam al-Qurʾan, ed. Muhammad ʿAbd al-Qadir ʿAta (Beirut: Dar al-Kutub al-ʿIlmiyya, 2003), 102–3 (stating that the ruler was delegated power only to vindicate the rights of the public, not the rights of particular individuals). 12 Ibn Hajar al-Haytami, Al-Fatawa al-Fiqhiyya al-Kubra (Cairo: al-Maktaba al-Islamiyya, n.d.), 235–6 (obedience is obligatory if the ruler believes the command is lawful); Muwaffaq al-Din ‘Abdallah b. Ahmad b. Muhammad b. Qadama, al-Mughni (Cairo: Maktabat al-Jumhuriyya al-’Arabiyya, 1964), 366 (if the ruler issues a command which he believes is illegal, and it is carried out, the ruler is personally liable). 13 See, for example, al-Kasani, Badaʾiʿ al-Sanaʾiʿ, 100 (orders of the ruler should be obeyed unless they are known to be sinful); Muhammad b. Muhammad b. ‘Abd al-Rahman al-Hattab, Mawahib al-Jalil li-Sharh Mukhtasar Khalil (Beirut: Dar al-Fikr, 1992), 250 (if the ruler orders a person to kill, amputate or unjustly appropriate property, the latter must not obey the command, and if he does, he is 426

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14

15 16 17 18 19 20 21

liable for retaliation (qis․a¯․s) and the value of the unlawfully seized item (al-ghurm)); see also, al-Khatib al-Shirbini, Mughni al-Muhtaj ila Ma’rifat Ma’ani Alfaz al-Minhaj (Beirut: Dar al-Kutub al-’Ilmiyya, 1994), 5:539; Ibn Qudama, 366. Ibn Qudama in this case limited this requirement to a person with an independent capacity to interpret the law; non-specialists, on the other hand, were entitled to adopt the legal reasoning of the public official who had issued the command, at least in cases whose legality was a matter of legal reasoning (ijtiha¯ d). Al-Qarafi, al-Furuq., 40 ( fa-yulh․aq bihi al-qad ․a¯ ʾ min al-qa¯․d¯ı bi-ghayr ʿamalihi fa-innahu la¯ tatana¯ waluhu al-wila¯ ya li-anna ․sih․․hat al-tas․arruf innama¯ yustafa¯ d min ʿaqd al-wila¯ ya wa-ʿaqd al-wila¯ ya innama¯ yatana¯ wal mans․iban muʿayyanan wa-baladan muʿayyanan fa-ka¯ na maʿzu¯lan ʿamma¯ ʿada¯ hu la¯ yanfudh fı¯hi ․hukmuhu wa-qa¯ lahu Abu Hanifa wa-l-Shafiʿi wa-Ahmad ibn Hanbal … wa-ma¯ ʿalimtu fı¯hi khila¯ fan). Ibid., 43 (al-qa¯ ʿida anna al-tuhma taqdah․ fı¯ al-tas․arrufa¯ t ijma¯ ʾan min ․haythu al-jumla). Ibn Hajar al-Haytami, Al-Fatawa al-Fiqhiyya al-Kubra, 235–6. Ibid. (distinguishing the obligation to obey inwardly ( fı¯ al-sirr) and outwardly ( fı¯ al-jahr)). Other jurists apply the terms ba¯․tin and ․za¯ hir to express the same notions of inward and outward compliance. See, for example, Hashiyat al- al-Shirwani, 71. Ibid. See, for example, Khaled Abou El Fadl, Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2015), and Abdullahi an-Naʿim, Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008). Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2012). In other words, the power to make positive law does not abrogate dissenting views about the content of the basic law itself, as is clear from the price-setting case discussed above. Even though the mufti in that case replied that the petitioner was under a moral obligation to adhere to the price restraint, the mufti did not revise the basic position of the Shafiʿi school that denied the legitimacy of price restraints as a matter of the basic law of Islam.

Selected bibliography and further reading Abou El Fadl, Khaled. Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2015). ʿArabi, Oussama. Studies in Modern Islamic Law and Jurisprudence (London: Kluwer Law International, 2001). Crone, Patricia. God’s Rule: Government and Islam (New York: Columbia University Press, 2004). Fadel, Mohammad. ‘Islamic Law Reform: Between Reinterpretation and Democracy’. Yearbook of Islamic and Middle Eastern Law 18(1) (2017): 44–90. Fadel, Mohammad. ‘State and Sharı¯ʿa’. In The Ashgate Research Companion to Islamic Law, ed. Peri Bearman and Rudolph Peters (Farnham, Surrey: Ashgate, 2014), 29–42. Feldman, Noah. The Fall and Rise of the Islamic State (Princeton, NJU: Princeton University Press, 2008). Fox-Decent, Evan. Sovereignty’s Promise: The State as Fiduciary (New York: Oxford University Press, 2011). Hallaq, Wael. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: C ­ olumbia University Press, 2012). Naʿim, ʿAbduallahi Ahmed al-. Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008). Qarafi, Shihab al-Din Ahmad b. Idris al-. The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers, trans. Mohammad Fadel (New Haven, CT: Yale University Press, 2017). Schacht, Joseph. ‘Problems of Modern Islamic Legislation’. Studia Islamica 12 (1960): 199–29.

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26 Terrorism, religious ­violence and the Shariʿah Ahmed Al-Dawoody

Introduction The Islamic scriptural sources (Qurʾan 5:33–4) treated a specific form of terrorism that took place during the Prophet’s lifetime. This treatment was considerably developed/­regulated by the classical Muslim jurists under the titles of al-h ․ira¯ ba, by the Maliki and Hanbali schools of Islamic law, or qat․ʿ al-t․arı¯q (banditry, highway robbery, piracy, terrorism), by the Hanafi and Shafiʿi schools, though some Hanafi jurists also call it al-sariqa al-kubra¯ (the great theft). A specific form of religiously motivated violence or terrorism sparked, as most scholars believe, during the reign of the fourth caliph ʿAli b. Abi Talib (r. 656–661) and as such, since it was not treated in the scriptural sources, was not adequately developed/ regulated in the classical Islamic legal literature. The perpetrators of this specific form of religious ­v iolence/terrorism are called khawarij (literally those who come out), i.e. against the ruler(s). Although both forms of ․hira¯ ba and khawarij satisfy the main elements of the current phenomenon of terrorism, for specific methodological and historical reasons, the four Sunni schools of Islamic law have failed to provide a systematic legal treatment of the khawarij including, in particular, their punishments. A far more serious issue here is the prevalent confusion in both classical and current Islamic legal discourses between the khawarij and the bugha¯ (armed rebels) which is used and abused to delegitimize and criminalize both armed rebellion and sometimes even peaceful opposition to the state authorities. Therefore, the main aims of this chapter are, first, to identify what constitutes terrorism and its punishments under Islamic law, and second, to demarcate the lines between terrorism and legitimate armed rebellion against the state in Islam, if there are any. The discussion focuses mainly on the classical legal literature of the four Sunni schools of Islamic law. This chapter argues that the Islamic law of terrorism developed by the Muslim jurists of the second/ eighth and third/ninth Islamic centuries identifies most of the main elements of the current phenomenon of terrorism, but not treating this specific historical phenomenon of religious violence/terrorism known as the khawarij under the law of terrorism constitutes a lacuna in the Islamic legal tradition.

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1  Terrorism Almost every known human society has experienced some form of terrorism. The Qurʾanic texts 5:33–4 addressed a specific horrific incident that took place during the Prophet’s lifetime and mainly regulated the punishment for the culprits as follows: Indeed, the retribution for those who yuh․a¯ ribu¯n (make war upon) God and His Messenger and strive to make fasa¯ d (destruction, damage) in the land is that they be killed or [emphasis added here and below] gibbeted or have their hands and feet amputated from opposite sides or they be banished from the land; this is a degradation for them in this world and in the Hereafter they will receive a grave chastisement. Excluded [from this retribution] are those who repent before you capture them; and be sure that God is All-Forgiving All-Merciful.1 Although this text addresses an incident of armed robbery in which the culprits brutally severed the limbs of their victims and intimidated the passers-by during their escape, classical Muslim jurists developed a description of the crime of ․hira¯ ba in the light of the above succinct yet key Qurʾanic term in the subject ‘make fasa¯ d (destruction, damage) in the land’ and the acts of terror they witnessed that considerably matches with the description of the main elements of the current phenomenon of terrorism. The word used for terrorism in contemporary Arabic usage is al-irha¯ b, although it was never used in the Qurʾan, in the sense of terrorism. Its derivatives occur eight times in the Qurʾan, seven times in the sense of fear (2:40; 7:116, 154; 13:59; 16:51; 21:9; 28:32) and once in the sense of deterrence (8:60).2 Although usually defined in slightly different ways, since the earliest available legal literature of the four Sunni schools of Islamic law, which dates back to the second/eighth-century, classical Muslim jurists agree on the following description of the crime of ․hira¯ ba: ‘a group of Muslims who under the threat, or use, of arms attack or merely intimidate or terrorize their victims in order to overtly and forcefully rob, kill or merely terrorize their victims’.3 In December 2003, the Mecca-based Islamic Fiqh Council, affiliated to the Muslim World League, brought a 20th-century dimension to the Islamic definition of the crime of ․hira¯ ba/terrorism as follows: Terrorism is an atrocity committed by individuals, groups or states against the human being (his religion, life, mind, property and honour). It includes all forms of intimidation, harming, threatening and killing without a just cause and all acts of banditry and violence that take place in the wake of an individual or collective criminal plan aimed at spreading the terror among people by exposing their life, liberty or security to danger, including the harm inflicted to the environment or to a public or private utility, or exposing one of the national or natural resources to danger.4 In its 17th meeting held in Jordan on 24–28 June 2006, the Council affirmed that all current forms of terrorist actions fall under the crime of ․hira¯ba. Although the world has not agreed yet on a common definition of terrorism and irrespective of the wording of these classical and contemporary Islamic definitions of the crime of ․hira¯ba, in particular, the classical Islamic legal definitions satisfy the following main elements of the crime of terrorism in its current forms. 1) Organized and/or overt use of force. Since this heinous crime could include several criminal acts such as murder, armed robbery, piracy, intimidation and cutting off the limbs 429

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of victims, this element distinguishes between the same criminal acts when committed under the crime of ․hira¯ba and when classified merely as acts of murder or theft, etc. by individual criminals. A major consequence here is that the punishment is grossly more severe under the law of ․hira¯ba. That is because under the crime of ․hira¯ba such acts are committed by a group of organized criminals who therefore possess a degree of what the classical jurists described as shawka or manʿa (power, force). This means that their criminal activities are undertaken mostly in a premeditated manner. No less importantly, their organized use, or intimidation of the use, of force is used in an overt manner which indicates muka¯bara/muja¯hara (an overt flagrant challenge) to state authorities and hence constitutes a great danger to stability and security of society at large. Furthermore, as pointed out by the Andalusian jurist exegete al-Qurtubi (d. 1272), it also constitutes a danger to the economy of society.5 That is because any individual(s) can be the victim(s) of this crime and hence it causes a widespread fear in the entire society which endangers the security and economy of any country. For this reason, the Qurʾanic text above figuratively describes the crime of ․hira¯ba as a war waged against God and His Messenger because of the usually indiscriminate nature of targeting/attacking the victims and the wanton destruction and damage it may cause to the entire society. To a great extent, this situation describes the current terrorist groups or organizations, clandestine or otherwise, who illegally and indiscriminately use force against mostly civilian victims in a daring challenge to the national and international laws prohibiting such acts of terrorism. 2) Use, or intimidation of use, of force. The Hanafi, Shafiʿi and Hanbali jurists, in particular, stressed the element of the use of force/arms and sometimes they even refered to certain simple and primitive arms such as sticks or stones. Irrespective of the primitive or lethal nature of the arms used against the victims, what the classical Muslim jurists intended to stress here is that such use of arms against peaceful civilians who are not prepared for such attacks inculcates a state of widespread fear and intimidation among its victims. But it is interesting to find out that the Maliki jurists, in particular, specifically include under the crime of ․hira¯ ba the mere act of intimidation or the threat of the use of force obviously because intimidation could create a similar context of widespread fear that may endanger stability in any society. Here also this element of the threat of the use of force and intimidation indicates a daring challenge to the state authorities and this is also one of the reasons of the severe punishments the convicted perpetrators of this crime receive. 3) The lack of a justification for their criminal acts altogether. Unlike the current definitions and studies of terrorism which focus on the motives of the terrorists, specifically the political ones, classical Muslim jurists did not focus much on the motivations behind the resort to the forms of terrorist actions in their time. Instead they focused on what constitutes the acts of terrorism and their punishments. Nonetheless, the Hanafi jurists usually refereed to armed robbery as a main motive behind ․hira¯ ba. Hence, the victims of the crime of ․hiraba are usually random and more importantly there is no enmity between the culprits and their victims. The element of justification behind the resort to the use of force here is of particular importance because it is one of the main distinctions between rebels and khawarij, on the one hand, and terrorists, on the other. Unlike armed rebels and the khawarij, culprits of the crime of ․hira¯ ba do not even claim to have a taʾwı¯l (a justification) or a just cause for their use of force. That is because, in the case of armed rebellion, a taʾwı¯l, a justification is a pre-­requisite for the status of rebels even if their justification is not blatantly plausible. And if the rebels have organized power and force – and for some jurists, a leadership – and they use force solely against state authorities and 430

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avoid targeting civilians or civilian property and that their use of force is strictly linked to achieving their supposedly just cause, they will not be held liable for the damage they cause during hostilities as stipulated under the Islamic law of rebellion. But it should be added here that what identifies the existence of the crime of ․hira¯ ba is the use or threat of the use of force against peaceful victims regardless of whether the culprits have justifications or not. In fact, what constitutes one of the main differences between the current forms of terrorism perpetrated by Muslims and the context of terrorism treated in the classical Islamic legal literature is that current terrorism is mainly motivated by religious or political goals. 4) The helplessness and victimization of the targets. The rationale behind this element as is reflected in the classical Muslim jurists’ deliberations is that the context of the crime of ․hira¯ba does not refer to any of the contexts of hostilities between armed adversaries who are prepared for any armed attack. This also distinguishes the context of the crime of ․hira¯ba from armed rebellion because, as referred to above, armed rebels do not target civilians and their use of force is strictly limited to achieving the goal, or what they believe the just cause, of their rebellion. In other words, the victims of ․hira¯ba are left defenceless and helpless in the face of their attackers. In addition to that it indicates that there is no just cause for attacking the victims, who are not only peaceful defenceless civilians but also have done nothing wrong to the part of the perpetrators of the crime of ․hira¯ba. It goes without saying that here perpetrators of the crime of ․hira¯ba do not abide by the Islamic regulations on the use of force since they randomly, indiscriminately and stealthily attack their peaceful civilian victims. Hence, it is of paramount importance to note that unnecessary use of force by both the state authorities and the rebels disqualifies them from treatment under the law of rebellion. For example, any use of force which cannot be described as a mere defence to put down the rebellion on the part of the state authorities or which cannot be described as merely directed against state authorities and limited to achieving the justifications of the use of force on the part of the rebels will be a violation of the regulations on the use of force in the case of internal armed conflict. As a consequence, both armed rebels and state army soldiers will be held equally liable under Islamic law for any violations of these strict rules on the conduct of war during armed rebellion. This specific concept of helplessness and victimization led, first, Abu Hanifa (d. 767), the eponymous founder of the Hanafi schools, and a few jurists of the Hanbali school to restrict the application of the crime of ․hira¯ ba to crimes committed in the desert or unpopulated areas simply because victims are la¯ yalh ․aquhum al-ghawth (cannot be rescued, helped) in these places. But in populated areas or in the villages, victims can be rescued either by the police or the ordinary public. In other words, this context of helplessness and defencelessness creates a state of irha¯ b, ikha¯ fa (intimidation, terror, widespread fear) not only among the victims also but among the rest of society because any individual could be the victim of such terror attacks. For this very reason, Abu Hanifa excludes women from the punishment of the crime of ․hira¯ ba, because by their very physical nature they cannot create such a state of widespread irha¯ b, ikha¯ fa.6 Second, the Maliki jurists by analogy extended this concept to include other crimes under the crime of ․hira¯ ba, such as killing by stealth and poisoning, simply because the victims are helpless and cannot defend themselves. It is worth adding here that some of the Hanbali jurists apply the crime of ․hira¯ ba if such crimes are committed at sea.7 Although the nature, contexts and forms of terrorism often change, the above specific context and the deliberations of the classical Muslim jurists over what constitutes the crime of 431

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․hira¯ ba largely echo the modern phenomenon of terrorism. The above elements of the threat, or the use, of force against helpless and defenceless peaceful civilians exist in all terrorist acts taking place at present at the hands of either Muslims or non-Muslims. However, the context treated by the classical Muslim jurists indicates rather a context of domestic terrorism rather than international terrorism. It took place in Muslim territories and the culprits and victims were mostly Muslims or permanent non-Muslim citizens of the Islamic state. This can be understood in light of the fact that at the time Muslim individuals or groups could not move freely in non-Muslim territories, let alone carry arms and commit terrorist attacks in such territories. In fact, contemporary Muslim scholars added little to the discussion of the subject of terrorism under Islamic law. They mainly included some modern forms of terrorism to the primitive forms discussed above by their classical predecessors. For example, some modern scholars argued for including organized assassinations of politicians or businessmen, kidnapping for ransom, mafia gangs, drug trafficking, hijacking airplanes, ships, etc., and terrorist explosions.8 In fact, the Qurʾanic term generally guiding the description of the crime of ․hira¯ ba, ‘make fasa¯ d (destruction, damage) in the land’, includes any current or future form of illegal damage or destruction in a non-fighting situation or the threat and intimidation of the use of force against peaceful civilians as shown within the context discussed above. But interestingly and fortunately, the treatment of what constitutes terrorism under Islamic law focuses on the actions, the elements and context of this heinous crime, irrespective of, and unlike the modern world’s unwarranted focus on, the political or social motivations of the terrorist actions. Indeed, the classical Muslim jurists’ approach avoids the misuse of the label of terrorism and assures that culprits of the same criminal acts receive the same punishments regardless of the nature of their motivations. The punishment of ․hira¯ba falls under the category of ․hudu¯d because its punishment is prescribed in the Qurʾan. It is worth recalling that this heinous crime is figuratively described as a war against God and His messenger because of the danger it constitutes to society as a whole. Hence, it constitutes a crime against both what is described in Islamic parlance as ․h uqu¯q Allah (rights of God) and ․h uqu¯q al-ʿiba¯ d (rights of the humans), i.e. civil liability. Partly, therefore, the punishment of ․hira¯ ba is the severest under the Islamic penal code. Without getting into the details of the jurists’ deliberations, they split into two groups: the majority which includes the Hanafis, Shafiʿis and Hanbalis maintain that the four specific punishments included in the above Qurʾanic texts – i.e. execution, gibbeting, amputation of the right hand and left foot, and banishment/imprisonment – are listed in a manner that indicates a specific order according to the crimes committed. In other words, execution is the punishment of a person convicted of ․h ira¯ ba who kills his victim, and gibbeting and/or amputation can be added if he also robbed his victims. If the convicted criminal only kills his victims without robbing them, then only execution is the punishment. If the criminal only robbed his victim, then his punishment is the amputation of the right hand and left foot. If the criminal only intimidated/terrorized his victims, then his punishment is ­banishment/ imprisonment. However, the Maliki jurists argue that these punishments are intended to give the judge the freedom to choose the punishment that is suitable to the case of each convicted criminal. For instance, if the criminal is clever in planning the crime, he is to be executed because the rest of the punishments will not stop him from being a danger to society. While if he lacks this skill, but has the physical ability to carry out the crime, then amputation is the punishment that can prevent further crimes. Thus, if the criminal lacks both the intellectual and physical capability to commit the crime, then the judge can give him a discretionary punishment or send him into exile. Convicted accomplices of the crime of ․h ira¯ ba receive the same punishment as the convicted culprits according to the majority 432

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of the jurists, while al-Shafiʿi maintains that they receive only a discretionary punishment left to the judgment of the judge and imprisonment.9 The above brief discussion shows that under Islamic law, the identification of what constitutes terrorism and the punishment of its culprits and accomplices are crystal clear regardless of the usual disagreement among the jurists. Moreover, the Islamic treatment of terrorism provides a fully developed framework that may include new forms of terrorist acts as long as the above elements are met. The significance here is that the lack of ambiguity in the identification of terrorism to a great extent could prevent the manipulation of the law by trying under the law of terrorism the political opponents of the state, particularly armed rebels who are to be treated, not tried, according to a different law. Unfortunately, it is because of the historical and geographical proximity between two forms of internal hostilities that took place during the reign of the Fourth Caliph ʿAli b. Abi Talib (r. 656–661), namely, armed rebellion and the khawarij, that a considerable degree of confusion in differentiating between them has existed since the second Islamic century in the Islamic legal and theological literatures, as studied below.

2  Religious violence At the outset, it should be emphasized here that the term ‘religious violence’ is used to refer to the phenomenon or movement known in Islamic historical, legal and theological literatures as the khawarij. Obviously, it is also used to describe any contemporary acts that fall under the same description. The term ‘religious violence’, insightfully suggested by the editor of this volume in the title of the chapter, or more precisely ‘religious terrorism’, as used in the remaining part of this chapter, is purposefully used here to refer to the khawarij, partly because it exactly matches the definitions included in the classical Islamic legal literature. Furthermore, the distinction between the phenomenon of terrorism treated in Islamic law under the title of ․hira¯ba, discussed above, and the specific form of religious terrorism treated under the title of khawarij is deliberately continued here to prove the lack of a systematic or developed treatment of the law of the khawarij. That is particularly because despite the fact that the khawarij share most of the elements of the crime of terrorism discussed above, there is no definite punishment specified for the khawarij in the Islamic penal code. The main reason for the lack of this punishment is that the khawarij emerged after the demise of the Prophet and hence since this phenomenon was not treated in the Islamic scriptures, jurists unjustifiably and regrettably did not develop the punishment for acts of religious terror. However, the Hadith literature includes many reports in which the Prophet predicted, and/or described the characteristics of, the khawarij. The Islamic historical and legal literature disagrees over the origin of the emergence of the khawarij. It is bizarrely suggested that the khawarij goes back to a certain incident in which ʿAbdullah b. Dhi al-Khuwaisiri al-Tamimi objected to the Prophet’s distribution of some property. This sort of peaceful objection by al-Tamimi is wrongly considered as an act of khuru¯j, literally going out, i.e. against the ruler/s. Certainly, this is rather a figurative description rather than an act that would make al-Tamimi fall under the technical legal categorization of khawarij. Apart from this opinion, while a minority maintain that the khawarij dates back to the group who assassinated the third Caliph ʿUthman b. ʿAffan (r. 644–656) because of his alleged nepotism, the majority’s opinion is that the origin of the emergence of the khawarij goes back to the violent groups who assassinated the fourth Caliph ʿAli b. Abi Talib (r. 656– 661) because they rejected his resort to tah․kı¯m (arbitration) with Muʿawiyah b. Abi Sufyan (d. 680) in the battle of Siffin (657).10 They saw in the resort to arbitration a violation of the Qurʾan since only the Qurʾan should be the source of tah․kı¯m. Moreover, anyone who rules 433

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in accordance with anything except what is revealed by God, i.e. the Qurʾan, is an infidel, the khawarij advocated.11 The jurists’ discussion of this underdeveloped, yet important, law focuses largely on the historical narrations and descriptions of this historical phenomenon rather than developing the rules and regulations that govern how they are to be punished under Islamic law. The Islamic literature describes the khawarij as follows. 1) Pious and devout worshippers who usually recite the Qurʾan and spend an excessive amount of time on their prayers and fasting, but are ignorant of Islam and its teachings or, at best – as anticipated in one report attributed to the Prophet – have a shallow or a narrow understanding of Islam and the Qurʾan. They believe that any Muslim who commits a major sin – including the Companions of the Prophet – is a ka¯ fir (unbeliever) and that those who commit a major sin will remain indefinitely in Hellfire. Hence, takfı¯r (excommunication) of Muslims who commit a major sin has since then become one of their main characteristics and a rationale for their division of Muslims into believers and kuffa¯ r (unbelievers). In other words, as pointed out by Ibn Taymiyya (d. 728/1328), the khawarij see themselves as representing da¯ r al-Isla¯ m (house of Islam) while the rest of the Muslims representing the da¯ r al-h․arb (house of war). Their reading of the Qurʾanic text (64:2) ‘It is He Who created you, then some of you are unbelievers and some of you are believers’ leads them mistakenly to this twofold division which results in excommunicating those who do not share their beliefs. In other words, in the opinion of the khawarij, any Muslim who does not follow their creed is an infidel.12 The above description certainly was not used to refer to armed rebels or more obviously to the culprits of ․hira¯ ba, whom the legal literature explicitly presents as criminal terrorists whose motivations were predominantly pecuniary. The Islamic position on the khawarij is that they are still Muslims and cannot be solely classed on the basis of their unorthodox and heinous acts as infidels, pure and simple. This position was recently emphasized by the current Shaykh Al-Azhar Ahmed Al-Tayyib who rejects labelling members of the Islamic State in Iraq and Syria (ISIS) as kuffa¯ r (unbelievers). In other words, regardless of their criminal and heinous terrorist acts, the current Shaykh Al-Azhar rejects excommunicating ISIS terrorists from the religion of Islam as long as they believe in its core tenets. However, in a sense, the khawarij may be described, so far, as radical religious fanatics or fundamentalists. Moreover, they developed a literature of their own, an ideology and a creed and as a consequence in Islamic theology they are studied and categorized as a heretical sect that deviated from the true path of Islam. In addition to their strong religious-based message, certain historical, political and social factors contributed to the emergence of the khawarij as many historians and sociologists attempted to prove. 2) Apart from their intellectual and ideological framework, and more importantly here, the classical Muslim jurists identify the khawarij as a group that indiscriminately, and sometime massively, kill and commit terrorist acts against peaceful civilian Muslims including women, children and the aged. Early Islamic historical literature shows that the khawarij committed widespread terrorist acts and intimidation of the public. For example, the khawarij ‘especially the Azariqa, and the Qaramita, used methods that are difficult to differentiate from common acts of banditry, these groups often slaughtered indiscriminately, raped, and usurped property’.13 This leads to the important question about their justifications, since committing these major sins and such use of terror-­oriented methods undoubtedly contravenes any religious aim and undermines any lofty political goals. Bearing in mind that the khawarij considered anyone who commits a major sin an infidel, the fact that the khawarij ­themselves – of course not all of them – committed 434

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a number of major sins and heinous acts such as the indiscriminate murder of civilian Muslims, taking money from Muslims by force, as well as rape, is an inexplicable paradox. Recalling that the use of force by armed rebels is strictly regulated must be used exclusively against the state authorities and must be limited to achieving the objective of their armed rebellion, the sort of indiscriminate slaughter of peaceful civilians committed by the khawarij, let alone rape and usurpation of victims’ property, is exactly the same as the acts punishable under the crime of ․hira¯ ba/terrorism. 3) They allow the usurpation of the property of Muslims and/or taking it as spoils of the war, yastah․illu¯n amwa¯ l al-muslimı¯n. In war against non-Muslims, or what may be described in modern terminology as international war, enemy property becomes spoils of war, but in inter-Muslim fighting taking the booty of fellow Muslims is not permitted. For example, according to the law of armed rebellion, the state is not allowed to confiscate the property of the rebels and even any weapons confiscated from the rebels during the armed rebellion must be returned to the rebels after the cessation of hostilities. Moreover, ‘the jurists of the four schools unanimously agree that it is not permitted for the state army to use weapons confiscated from the rebels to fight against them, except in cases of dire military necessity’.14 This proves beyond doubt the inviolability of the property of Muslims even during acts of hostilities. Therefore, the unorthodox beliefs and horrible atrocities committed by the khawarij in such an early period in Islamic history have left an everlasting traumatic and legal impact on the discussion of the subject of inter-Muslim fighting. In other words, recalling the memories of the shedding of blood among Muslims, including particularly the indiscriminate acts of terror committed at the hands of the khawarij in early Islamic history, led the majority of classical Muslim jurists to prefer that Muslims endure injustice and tyranny rather than resort to the use of armed rebellion that may cause the shedding of blood among Muslims. Therefore, these characteristics warrant the classification of this specific form or use of force as ‘religious violence’, or ‘religious terrorism’, because the use of indiscriminate acts of terrorism, including against peaceful civilians, is motivated by, or grounded in, certain religious interpretations. For the purpose of this chapter and in light of the above description, as rightly asked by Khaled Abou El Fadl, ‘the material legal question is: What is the status of groups such as the khawarij whose system of thought justifies the terrorizing and victimizing of people when they are most unable to resist?’15 The following brief discussion will approach this question by examining, first, the rules regulating the use of force against the khawarij and, second, the Islamic law that will be applied against them if they are brought for prosecution in an Islamic court. It is interesting to mention here that the fourth Caliph ʿAli b. Abi Talib (r. 656–661) declared a wise and very tolerant policy towards the khawarij that is reflected in the following three principles: First, they are not prevented from attending the mosques, i.e. the non-khawarij mosques because they apparently built mosques for the followers of their ideology. Second, they will receive a share of the booty as long as they fight alongside the rest of the Muslims. Obviously, if the khawarij fight under the leadership of the fourth Caliph ʿAli b. Abi Talib, this signifies acknowledgement of, and obedience to, his legitimate authority. Third, they will not be fought unless they initiate the fighting. This means that despite their heretical and unorthodox beliefs, the khawarij are to be treated just like the rest of the Muslims as long as they do not initiate violence. In other words, as pointed out by al-Shafiʿi, unorthodox groups such as khawarij cannot be prevented from their religious or political rights as long as they were not the first to resort to the use of force.16 435

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Therefore, irrespective of the historical, Hadith and theological literatures, the key to the legal treatment of the khawarij is their use of violence and for this reason classical Islamic law books study their case as one of the four forms of the non-international armed conflicts developed under Islamic law because of specific precedents that took place within the first four decades following the demise of the Prophet in 632 AD. The above brief discussion has shown some similarities between the khawarij and the culprits of ․hira¯ ba in the sense that both of them commit acts of terrorism and victimize peaceful civilian Muslims. It has also shown stark dissimilarities between the methods of force adopted by the khawarij and those adopted by the culprits of ․hira¯ ba, on the one hand, and the armed rebels, on the other. Because armed rebels do not target peaceful civilians or civilian property, a set of extremely strict and humane rules of combat must be followed by the state army when attempting to mount a defence against them. The point here is to show by way of comparison the different rules of combat that must be applied in these conflicts and which, in turn, will prove, in addition to the issue of prosecution touched upon below, among other issues, the unwarranted confusion and misuse of the misidentification of the conflict in order to punish the political opponents of the state. The rules of combat against them include that the state army cannot: 1) initiate the hostilities; 2) shoot to kill the rebels; or 3) pursue the rebels if they escape the fighting. More importantly, 4) any damage to lives and property committed by both sides of the conflict during acts of hostilities are not punishable as long as they are dictated by military necessity and, therefore, 5) captured rebels must be set free after the cessation of hostilities. Understandably, none of these five rules applies in the case of fighting against the culprits of ․hira¯ba, who receive the severest punishments in the Islamic penal code. Bearing in mind the similarities between the khawarij and the culprits of ․hira¯ba in terms of the indiscriminate killings and acts of terrorism and victimization of peaceful civilian Muslims, which they both commit, the rational position here is that the khawarij receive the same treatment vis-à-vis the rules of combat and punishment as the culprits of ․hira¯ba. This because they commit the same acts of terrorism, though often with different motivations: the classical legal literature shows that at least during the first two centuries of the Islamic history, which witnessed the development of the Islamic legal literature, the motivations of the culprits of ․hira¯ba are often pecuniary, while the khawarij’s are often religious. That is to say that, regarding the rules of combat, the khawarij should be pursued if they escaped the battlefield; the prohibition on the shooting to kill rule may not be feasibly upheld here; if they are captured, they cannot be set free; and they have to be prosecuted in court for any damage they cause to lives and property. Nonetheless, as referred to above, since the primary sources of Islamic legislations (the Qurʾan and the Sunnah) do not include specific regulations on the treatment of the khawarij, disagreements typically arose among the classical Muslim jurists over whether the khawarij should be treated as armed rebels or terrorists. Among the material legal consequences of the fact that, as pointed out by Abou El Fadl, ‘the Khawarij were declared to be rebels, entitled to the treatment given to the bugha¯, and not bandits’,17 are that the khawarij cannot be pursued if they escaped the fighting and, more importantly, they will not be held liable for the lives and property they destroyed. Therefore, and this takes the discussion to the second question, according to this untenable position of treating the khawarij as rebels, if a group of khawarij who commits acts of terrorism against peaceful civilians were brought to an Islamic court for prosecution, they will go unpunished for their terrorism. Indeed, this untenable position indicates a lacuna in the Islamic legal treatment of the khawarij. It is true that the khawarij may share with the armed rebels the three conditions required for an armed group to be qualified as rebels: 1) khuru¯j (actual use of force); 2) manʿa/shawka (power, force); and 3) taʾwı¯l ( justification). But the main characteristic that distinguishes the khawarij from armed rebels is that the khawarij 436

Terrorism, religious violence and Shariʿah

do not abide by the Islamic regulations on the use of force in addition to their notorious use of terror-oriented methods against their civilian victims. In the case of armed rebellion, in addition to the rules of combat mentioned above, the use of force by the rebels must be strictly limited to achieving the cause of the rebellion and must be directed against government targets. Hence, armed rebels will be held liable for any damage they cause to lives and property that is not directly related to achieving the cause of rebellion or made before or after the rebellion. Therefore, this chapter supports the position adopted by some of the classical Muslim jurists that the khawarij must be treated under the law of ․hira¯ ba. In other words, they must be held liable for their acts of indiscriminate killings and acts of terrorism and that they do not deserve the protected status armed rebels receive under classical Islamic law, as maintained by some other classical jurists. Regrettably, even the jurists who opined that the khawarij are to be treated as the convicted culprits of ․hira¯ ba did not touch upon the punishment that the khawarij should receive. The determining factor for the prosecution the khawarij is and should be whether they violate the Islamic restraints on the use of force or not. Likewise, it is interesting to find that under international humanitarian law (IHL) for international armed conflicts, resistance movements in support of a party to the conflict receive the protected status if they meet four conditions: 1) they are under responsible command; 2) they have a distinctive sign or emblem; 3) they carry arms openly; and 4) they use force in accordance with the laws and customs of war.18 Apart from the distinctive sign, which may not be regularly observed in such classical primitive war situations, and although not all classical Muslim jurists stipulated that armed rebels must have a commander, this modern IHL discussion about ‘resistance movements’ is brought here because it supports the thesis argued in this chapter that the overarching factor which should be used in an Islamic court to distinguish between the armed rebels and the khawarij is abiding by the Islamic regulations on the use of force, in addition to meeting the three conditions required for being classified as rebels. If the khawarij abide by the Islamic restraints on the use of force, then technically under Islamic law, there will be no grounds for prosecuting them because they could fall in the same category, and thus enjoy the protected status, of armed rebels since they fulfil the same three conditions of the armed rebels, referred to above.

3  Conclusion The treatment of the classical Muslim jurists of these two specific forms of terrorist acts during the first two centuries of the history of Islam is utterly archaic, highly contextual and methodological. Nonetheless, the current acts of terrorism perpetrated by Muslims, on the one hand, and the greatest number of non-international armed conflicts at present taking place in the Muslim world bring to mind this classical Islamic juristic treatment. It is interesting to find out, on the levels of scholarly and juristic examination, that the current different legitimate and illegitimate forms of the force by Muslims at present can be identified and regulated, and punishment for only certain forms of illegitimate force can be inflicted under classical Islamic law. It is disappointing, however, at least on the level of the practice, that despite the fact that Islamic law in this area is not incorporated into the legal systems in the majority of the Muslim world, classical Islamic juristic rulings are at present cherry-picked to justify acts of terrorism and indiscriminate killings by Muslim terrorists. Moreover, on the other hand, Islamic law is also abused by the governments in the Muslim world in the sense that not a single government in the Muslim world has granted, or apparently will grant, the protected status for armed rebels provided under classical Islamic law. However, the classical Muslim jurists’ greatest achievement in this area of non-international armed conflict is that 437

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they developed a remarkably progressive law that regulates the recourse to armed rebellion which, in the words of John Kelsay ‘prefigured (by nearly a thousand years) Lieber’s conclusion that participation in a rebellion does not, in and of itself, make one a criminal’.19 This chapter has shown that classical Muslim jurists successfully developed a legal framework that identifies and sets the punishments for the crime of ․hira¯ ba, but they failed to develop the punishments for the khawarij who commit the same acts of terrorism, a lacuna this chapter attempts to address. In conclusion, Islamic law can make a great contribution to both national and international criminal justice: Islamic law can diminish the use of illegitimate use of force, humanize non-international armed conflicts, and as a consequence alleviate the suffering of the victims. But the reality on the ground shows that non-state actors and criminal terrorist Muslims are the ones who mainly use or abuse Islamic law to justify their respective use of organized force or violent terrorist acts. Islamic law cannot contribute to criminal justice unless it is institutionally utilized: a conclusion that is reached in the West, at least in some scholarly and professional circles. Indeed, there is an opinion in the West that Islamic law can or should be utilized, at least, to counter terrorism, humanize armed conflicts involving Muslims, and contribute particularly to international criminal justice. But this contribution, practically speaking, is not possible in the face of such schizophrenic or at best dual legal systems in the majority of the Muslim world, where, apart from Islamic family law, many areas of Islamic law including the above classical juristic discussions and deliberations would be unheard of for many Muslim jurists. Bearing in mind the lip service to Islamic law paid by the many Muslim countries whose constitutions dictate that Islam is the religion of the state and/or Islamic law is a source or the source of legislation, peaceful and violent Islamists appear to champion the case of Islamic law. Therefore, in the case of the Islamists who zealously, emotionally, sometimes insanely and/or brutally attempt to unilaterally, and outside of the state institutions, apply their respective understandings of Islamic law, it becomes imperative that Islam can and must contribute to the ongoing process of the Islamization of societies. Apart from political ideologies and the conflicting ongoing processes of Islamization or the de-Islamization of the societies in Muslim majority countries, Islamic law at least for purely pragmatic considerations will be revisited by both the Muslim and the Western worlds.

Notes 1 Translations of the Qurʾanic texts in this chapter are mine. 2 For this discussion, see Ahmed Al-Dawoody, ‘International Terrorism and the Jurisdiction of ­Islamic Law’, International Criminal Law Review 15(3) (Spring 2015): 571. 3 See Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations, Palgrave Series in Islamic Theology, Law, and History 2 (New York: Palgrave Macmillan, 2011), 171. 4 The Islamic Fiqh Council, ‘Makkah Declaration on Terrorist Explosions and Threats: Causes, Consequences, Legal Opinions and Means of Protection’, The Islamic Fiqh Council Journal, 17 (2004): 34. 5 See Muhammad ibn Ahmad al-Ansari al-Qurtubi, Al-Jamiʿ li-Ahkam al-Qurʿan, vol. 6 (Cairo: Dar al-Shaʿb, n.d.), 157. See also Sherman A. Jackson, ‘Domestic Terrorism in the Islamic Legal Tradition’, The Muslim World 91(3–4) (September 2001), 299ff. 6 See Muhammad ibn Ahmad ibn Abi Sahl al-Sarakhsi, Kitab al-Mabsut, vol. 9 (Beirut: Dar alMaʿrifa, n.d.), 197ff.; Jackson, ‘Domestic Terrorism in the Islamic Legal Tradition’, 297. 7 See, for example, Mustafa al-Suyuti al-Rahaybani, Matalib Uli al-Nuha fi Sharh Ghaya al-Muntaha, vol. 6 (Damascus: Al-Maktab al-Islami, 1961), 251; Mansur ibn Yunus ibn Idris al-Buhuti, Sharh Muntaha al-Iradat al-Musamma Daqʾiq Uli al-Nuha li-Sharh al-Muntaha, vol. 3, 2nd edn (Beirut: ʿAlam al-Kutub, 1996), 381. 8 See, for example, Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2006), 337; ʿAbd al-ʿAziz ibn ʿAbdullah ibn Muhammad Al al-Shaykh, 438

Terrorism, religious violence and Shariʿah

‘Al-Irhab: Asbabuh wa-Wasaʾil al-ʿIlaj’, The Islamic Fiqh Council Journal 17 (2004): 38ff.; Dawoody, The Islamic Law of War, 174–6. 9 See Dawoody, The Islamic Law of War, 177–83. 10 See Sulayman ibn Salih ibn ʿAbd al-ʿAziz al-Ghusn, ‘Al-Khawarij: Nashʾatuhum, Musammahum, Alqabuhum, Firaquhum’, Majala Jamiʿat al-Imam 48 (2010): 85–145; Usama Sulayman, ‘Al-­K hawarij bayn al-Madi wa-l-Hadir’, Al-Tawhid, 404: 57. 11 Al-Ghusn, ‘Al-Khawarij’, 103. 12 Abou El Fadl, Rebellion and Violence in Islamic Law, 171. 13 Ibid., 52. See also Al-Ghusn, ‘Al-Khawarij’, 109–15. 14 Al-Dawoody, The Islamic Law of War, 164. See also Abou El Fadl, Rebellion and Violence in Islamic Law, 153; ʿAla al-Din al-Kasani, Badaʾiʿ al-Sanaʾiʿ fi Tartib al-Sharaʾiʿ, vol. 7, 2nd edn (Beirut: Dar al-Kitab al-ʿArabi, 1982), 141; Muhammad al-Khatib al-Shirbini, Al-Iqnaʿ fi Hall al-Faz Abi Shujaʿ, vol 2, ed. by Maktab al-Buhuth wa-l-Dirasat (Beirut: Dar al-Fikr, 1994), 549; ʿAbd al-Qadir ʿAwda, Al-Tashriʿ al-Jinaʾi al-Islami: Muqarana bi-l-Qanun al-Wadʾi, vol. 2 (Beirut: Dar al-Kitab alʿArabi, n.d.), 695. 15 Abou El Fadl, Rebellion and Violence in Islamic Law, 248. 16 Ibid., 152. 17 Ibid., 56. 18 Geneva Convention (III) Relative to the Treatment of Prisoners of War, of 12 August 1949, Article 4A(2). 19 John Kelsay, Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminster/John Knox, 1993), 93.

Selected bibliography and further reading Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2006). Al-Dawoody, Ahmed. The Islamic Law of War: Justifications and Regulations. Palgrave Series in Islamic Theology, Law, and History 2 (New York: Palgrave Macmillan, 2011). Al-Dawoody, Ahmed. ‘International Terrorism and the Jurisdiction of Islamic Law’. International Criminal Law Review 15(3) (Spring 2015): 565–86. ʿAwdah, ʿAbd al-Qadir. Al-Tashriʿ al-Jinaʾi al-Islami: Muqarana bi-l-Qanun al-Wadʿi, vol. 2 (Beirut: Dar al-Kitab al-ʿArabi, n.d.). Buhuti, Mansur b. Yunus b. Idris al-. Sharh Muntaha al-Iradat al-Musamma Daqaʾiq Uli al-Nuha li-Sharh al-Muntaha, vol. 3, 2nd edn (Beirut: ʿAlam al-Kutub, 1996). Jackson, Sherman A. ‘Domestic Terrorism in the Islamic Legal Tradition’. The Muslim World 91(3–4) (September 2001): 293–310. Kasani, ʿAlaʾ al-Din al-, Badaʾiʿ al-Sanaʾiʿ fi Tartib al-Sharaʾiʿ, 2nd edn (Beirut: Dar al-Kitab al-ʿArabi, 1982). Kelsay, John. Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminster/John Knox, 1993). Qurtubi, Muhammad b. Ahmad al-Ansari al-. Al-Jamiʿ li-Ahkam al-Qurʾan, vol. 6 (Cairo: Dar al-Shaʿb, n.d.). Rahaybani, Mustafa al-Suyuti al-. Matalib Uli al-Nuha fi Sharh Ghaya al-Muntaha, vol. 6 (Damascus: Al-Maktab al-Islami, 1961). Sarakhsi, Muhammad b. Ahmad b. Abi Sahl al-. Kitab al-Mabsut, vol. 9 (Beirut: Dar al-Maʿrifa, n.d.). Shaykh, ʿAbd al-ʿAziz b. ʿAbdullah b. Muhammad al-. ‘Al-Irhab: Asbabuh wa-Wasaʾil al-ʿIlaj’. The Islamic Fiqh Council Journal 17 (2004): 25–49. Shirbini, Muhammad al-Khatib al-. Al-Iqnaʿ fi Hall al-Faz Abi Shujaʿ, ed. Maktab al-Buhuth wa-lDirasat, vol. 2 (Beirut: Dar al-Fikr, 1994).

439

Index

abode of Islam see da¯ r al-Isla¯ m Abu Hanifa see al-Nuʿman, Abu Hanifa ʿa¯ da see custom agency derived from the Prophet 376–7 al-Ahkam al-Sultaniyya (Mawardi) 366–7 ahl al-athar (School of the Texts) 52–9 ahl al-raʾi (Rational School) 54–8, 60 Allah (God): divine sovereignty and temporal sovereignty in relation 416; lut․f 375–6, 377; rights of (see ․huqu¯q Allah); supreme Legislator 233; truth see ․haqq; kashf wa¯ qiʿ Anglo-Muhammadan Law 31, 294 apostates (execution of ), modernity and 177, 178–9 appellate system 190–1, 193 Aquinas, Thomas 100 argument see ikhtila¯ f armed conflict see jihad assisted reproduction, ethics of 119 authority see ․hujjiyya; judicial authority; wila¯ ya; wila¯ yat al-faqı¯h autopsy, ethics of 117 al-Awzaʿi, Abu ʿAmr ʿAbd al-Rahman 148–9 al-Baghdadi, Ibrahim ibn Khalid 152 beginning of human life, ethics of 118 bioethics: assisted reproduction 119; autopsy 117; beginning and end of human life 118; definition 112; emergence 112; five juristic views as to medical treatment 115; interdisciplinary field of 112; Islamic and Western conceptualisations 115–16; Islamic juristic discourses 113–15; and Islamic law 113, 120; issues in Islamic bioethics 116–19; law and 112; organ donation or transplantation 117; pregnancy 118; religion and 112 body covering, regulations on 343 borrowed law see legal transplant British common law see common law (British) Byzantine legal system 279 caliphate: abolition of 293, 305, 402; application of Islamic law 301; Baghdadi caliphate 360;

‘caliphate of man’ as ‘theo-democracy’ 411; as constitutional government 418–19; continued obligatoriness of 403; early caliphate era 361–2; imperial caliphate era 362–4; jihad and 309; legal conceptions of 202; in modern Islamic constitutional theory 403–5, 409; Muslim unity within 305; Muwahhidun caliphate 152; re-establishment of 309; Sunni caliphate legal discourse 365–8; treatise on 411; universal Caliphate 412 canons of law see qawa¯ ʿid fiqhiyya Christianity: Byzantine legal system 279; Divine Command Theory 99; medieval Catholic view of God’s rights 74; see also natural law classical Islamic legal system, colonial displacement of 30–2 codification: association with modernity 389; ‘codification of Islamic law’, notion of 393; concept of 389–92; Islamic law as result of 393; jurists’ law in pre-modern era 392; and legal transplant 389, 394–7; and localization of Islamic law 395–7; and marginalization of Islamic law 397; mukhtasars (legal treatises) 393; Ottoman Majalla (Mecelle) 292, 393; state-led 392 colonialism: Anglo-Muhammadan Law in India 294; displacement of classical Islamic legal system 30 (see also transplanted law); hybrid legal institutions 31; Nigerian ‘native courts’ 163 combat see jihad common law (British) 31, 294 ‘Common Morality Theory’ 100, 103–6 community of Islam see umma Companions of the Prophet 56, 141, 172, 179, 210, 257, 288, 306, 358, 434 comparative law approach to qawa¯ ʿid fiqhiyya 242–3 compendia of laws see mukhtasars conflict of laws see ikhtila¯ f conquered territories, policy towards 361 constitutional law: agency and accountability of public officials 422–4; caliphate as 441

Index

constitutional government 418–19; constitutionalism, definition of 400; democracy and Islam in relation 415; divine sovereignty and temporal sovereignty in relation 416; failure of democratic movements in Arab world 415; governance among equals in Sunni thought 418–19; historical development of Islamic constitutional theory 401–2; human-made legislation, scope and authority of 405; Islamic democratic theory 410–12; and Islamic law 400; Islamic law and the state 419–22; ‘Islamic state’, definition as 406–9; Islamic theory of democratic self-governance 415; Islamist theory 406–9; main features of Islamic constitutional theory 403–5; objective of Islamic constitutional theory 375; separation of powers 400; sovereignty and rule of law in relation 400; standard (Sunni) Islamic doctrine 409–10; Sunni political theory 416–18; Sunni theory in modern Muslim-majority states 424–5; see also caliphate contracts, ikhtila¯ f and rescinding contractual commitments 189 crime and punishment: and ․huqu¯q Allah 75; punishment for theft 133–8 culture see legal culture custom (ʿurf; ʿa¯ da): ˓ada, meaning of 287; authority (h․ujjiyya) of 293; changing habits 291; classification of 290; compatibility and continuity with Shariʿah 291; as contextual evidence 292; custom canon (al-ʿa¯ da muh․akkima) 224, 227, 229, 292; ethics and 290; fixed habits (ʿa¯ da¯ t) 291; general customs 290; historical sources 287–90; human-made customs 290; istih․sa¯ n and 232; law in relation 286; legal applications of 291; linguistic (verbal) custom (ʿurf qawlı¯) 290; maʿru¯f, meaning of 287; modern period 293–5; in other (non-Western) legal traditions 286; Ottoman Majalla (Mecelle) 292, 393; practical custom (ʿurf ‘amalı¯ or fiʿlı¯) 290; recognition of 293; role in legal rulings 291; Shariʿah and 286, 293–5; Shariʿah-based customs 290; as source of law 286, 291; specific customs 290; textual sources 287–90; ʿurf, meaning of 287; Western law 286 da¯ r al-Isla¯ m (abode of Islam) 301–11 ․daru¯ra (necessity) 224 democracy see constitutional law disagreement see ikhtila¯ f Divine Command Theory: and ‘Common Morality Theory’ 100, 103–6; compatibility with Islamic law 98; compatibility with natural law 98, 99; divine origin of morality 98, 100; and ‘Divine Purposes Theory’ 442

106–9; fiqh and 101–3; kala¯ m and 101–3; usu¯l and 101–3 ‘Divine Purposes Theory’ 106–9 Divinity see Allah divorce see marriage, family and succession doctrine see kala¯ m donated human organs, ethics of 117 dower see marriage, family and succession dress codes 343 Egypt: ikhtila¯ f 189, 190–1; marriage to male apostate, repudiation of 191; Mixed Courts 31; rescinding of contractual commitments 189; sources of civil law 190; undelivered gifts of heritable property 191 end of human life, ethics of 118 Enlightenment, definition of 256 equality see gender equality equity see istih ․sa¯ n ethics: Divine Command Theory: custom and 290; goodness and 263; and Islamic law 13; maqa¯ sid al-Shariʿah as ethical values 229; see also bioethics Europe see colonialism; Western law, thought and scholarship expiation see kaffa¯ ra¯ t fallibilist (formalist) approach to ikhtila¯ f 214, 215, 217 family law see marriage, family and succession fatwas (legal opinions), issuing of 156, 382–3 feminism: equality and 335, 345–7, 351; Islamist feminists 335; marriage and 335; Muslim feminists 335; secular feminists 335 fiqh ( jurisprudence): Divine Command Theory; ․haqq; natural law; qawa¯ ʿid fiqhiyya; wuju¯b: five major axioms (al-qawa¯ ʿid al-fiqhiyya alkubra¯ ) 47; human origin of 101; principles see usu¯l al-fiqh; Shariʿah distinguished 101, 347; substantive rulings 228–9; universal canons 227; wuju¯b and 90–4; see also bioethics fiqh al-aqalliyya¯ t (law of Muslim minorities): aims and goals of 316, 320; concept of 316; continued debate on 321; creation of 314, 315; definition of 316; dominant opinions as to 317; equality and 319; equity and 319; fatwas, role of 316, 320; impact on Islamic law 319; and Islamic perspective on world minorities 319; justice and 319; justifications for 317; legal premises of 318; moral aspect of 319; and Muslim Brothers 318; and nonMuslims 319; sources for 315; term usage 316; and ‘traditional’ fiqh 318; use of Islamic legal tradition 318; Western scholarship on 320; and Western values 319 fiʿlı¯ see custom five axioms of jurisprudence 47

Index

five categories of Islamic legal canons 222 five daily prayers 115, 173 five elements of human existence 196 five fundamental values of Shariʿah (al-kulliya¯ t al-khamsa) 22, 107 five juristic views as to medical treatment 115 five legal classes of actions 24, 57, 82, 84 five levels of knowledge 147 five pillars of Islam 22, 199 five principles of Hanbali legal doctrine 151 five principles of Maliki legal doctrine 145 five rules of combat 436 five universal legal canons 227, 228, 229, 233, 292 ‘five universal objectives’ see maqa¯ sid al-Shariʿah force, use of see jihad gender equality: classical fiqh 342; dress codes 343; feminism and 335, 345–7, 351; gender equity/complementarity in neo-traditionalist legal thought 343–5; gender in Islamic legal tradition 341; gender inequality in traditionalist legal thought 341–2; and ʿiba¯ da¯ t/muʿa¯ mala¯ t distinction 347; import from West 340; Islamic/Western polemic 340; Islamism and 340; justice and equality in relation 349–50; khuntha¯ (‘third gender’) 326; marriage and 335, 342; Musawah global movement 347–9; patriarchalism and 351; and political Islam 340; progress of movement for 350; progression of ideas on 350; reformist legal thought 345; segregation of men and women 343; and Shariʿah/fiqh distinction 347; social construction of gender, equality and justice 340; and social justice 341; and ‘War on Terror’ 340; women qadis 161 al-Ghannushi, Rashid, constitutional theory 410–12 al-Ghazali, Abu Hamid Muhammad ibn Muhammad 106 Ghaznavid dynasty (India), state and politics 371 God’s rights see ․huqu¯q Allah goodness, ethics and 263 governance (h․ukm) see caliphate; state government see caliphate; state hadith: authenticity 128; authority 128; certainty as to interpretation of 138; collecting of 128; complimentarity with Qurʾan 129; hermeneutics (interpretation) of 129–39; indpendence from Qurʾan 129; as interpretative tool for Qurʾan 134, 138; multiplicity of Sunnahs 133; revisionist Islamic view 129; as source of Islamic law 127–39; Sunnah distinguished 128; tolerance for different interpretations of 138; Western view 129

․hakı¯m (ruler, presiding judge) 384–6 Hallaq, Wael 12, 52, 211, 217, 258, 259–62, 265, 308, 309, 310, 424 Hanafi legal school: Abu Hanifa al-Nuʿman, life and career 142–4; and ahl al-athar school 54, 55; and ahl al-raʾi school 52, 55, 102; alAhkam al-Sultaniyya 366; bioethics 114, 115; and British common law 294; codification of laws 390, 392, 393, 395; continuance of 22; custom as source of law 26, 292, 293; da¯ r al-Isla¯ m 305, 310; foundation of 142–4, 364; ․huqu¯q Allah 71, 76; and Ibn Rushd 215; istih․sa¯ n 52, 288; ‘jurisprudence for minorities’ 7; legal pluralism 20, 28, 75; marriage 325, 327, 328, 331, 420; marriage dissolution 332, 333; mas․lah․a 59; non-Muslim husbands 179; number of daily prayers 173; ‘proprietor’oriented view of law 74; qadhf 72; qadis 161, 162, 363, 370; tah․sı¯n 57; terrorism 428, 430, 431, 432; women qadis 161; see also alNuʿman, Abu Hanifa Hanbali legal school: and ahl al-raʾi school 52; Ahmad ibn Hanbal al-Shaybani, life and career 150–1; al-Ahkam al-Sultaniyya 366, 367; bioethics 114, 115; da¯ r al-Isla¯ m 305; five principles of 151; foundation of 23, 150–1, 364; legal pluralism 25; marriage 327, 328; marriage dissolution 331, 332, 333; mas․lah․a 59; punishment of theft 134; purposes of law 198; same-sex relations 326; terrorism 428, 430, 431, 432; see also al-Shaybani, Ahmad ibn Hanbal Hanifa see al-Nuʿman, Abu Hanifa ․haqq (Divine truth): concept 67–8; divine interest in 69; divine origin 68; human interest in 69; justice and 67; law and 69; typology 69; see also ․huqu¯q al-ʿiba¯ d; ․huqu¯q Allah health see bioethics hermeneutics see ijtiha¯ d hijab (veil), regulations on 343 ․hira¯ ba see terrorism history: beginnings of Islamic law 1; colonial displacement of classical Islamic legal system 30–2; early centres of Islamic law 1 homicide see qadhf homosexuality 326 ․hujjiyya (authority): of custom 293; of hadith 128; of imams (wila¯ ya); Prophetic 54, 165, 263, 358, 375, 378, 408; of Qurʾan 127; taqlı¯d and 259, 261–5; see also judicial authority ․hukm (governance) see state humanity: five elements of human existence 196; human welfare as purpose of law 229; individual rights and ․huqu¯q al-ʿiba¯ d distinguished 69; original state see natural law; rights of believers see ․huqu¯q al-ʿiba¯ d; see also bioethics 443

Index

․huqu¯q al-iba¯ d (rights of believers): ‘absolute’ character 76; class of 69; definition 69; government action and 76; gradations 69; and ․huqu¯q Allah 29–30, 69, 71, 75, 77; ʿiba¯ da¯ t and 70; ‘individual rights’ distinguished 69; murder and 72; scope 71 ․huqu¯q Allah (rights of God): ‘absolute’ character 73, 76; class of 69; concept 74; crime and punishment and 75; and ․huqu¯q al-ʿiba¯ d 29–30, 69, 71, 75, 77; individual’s service to Allah 73; kaffa¯ ra¯ t and 70; medieval Catholic theology contrasted 74; murder and 72; public order and 69; societal dimension 74; and state power 72 hybrid legal institutions 31 ʿiba¯ da¯ t (ritual branch of law): and gender equality 347; and ․huqu¯q Allah 70; muʿa¯ mala¯ t distinguished 347; wuju¯b and 86–90 Ibn Rushd 215–16 ʿilm (knowledge): five levels of 376; of imams 376; sources of religious knowledge 289 ijma¯ ʿ ( juridical consensus): concept of 19; conditions for 174; consensus canons 223–4; definition of 171; (ir)reversibility of 175–6; legacy of 180; need for 171; operation of 174–5; and popular consensus 173–4; scope of 171; Shiʿi scholarship and 176–7; as Sunni matter 176–7; in theoretical jurisprudence 181; theories of 171; utility of 181 ijtiha¯ d (interpretation): academic perspectives on 256, 258; and autonomous western reason 255–6; defunctness of 261; imams and 377; as independent reasoning 257, 264, 265; ‘literalist’ hermenuetics 138; mujtahids 259, 263; reason and 264; scope of 260; taqlı¯d 256, 258, 261, 263 ikhtila¯ f ( juristic disagreements): abrogation of earlier arguments 188; causes of 210–12, 216–17; certainty, possibility of in modern age 188; conflict of laws within same legal school 186; equal and conflicting arguments, problem of 183; fallibilist (formalist) approach 214, 215, 217; functions of 213–14; historical sources 210, 217; Jafari (Shiʿi) legal school 187–8, 192; juristic disagreement and legal pluralism distinguished 209; legal pluralism 208–18; medieval Sunni jurisprudence 183–6, 192; modern appellate system 190–1, 193; modern Egyptian civil law 189, 190–1; modern Islamic law 189–90, 192–3; pragmatic approach 214, 216, 217; prohibition of usury 190; and superior argument (theory of ) 188; tarjih (preponderance) approach 215; temporal conflict of laws 188–9; validity of 212–13 imams: agency derived from the Prophet 376–7; binding and mandatory rulings 377; 444

conformity of rullings with kashf wa¯ qiʿ 377; as H ․ akı¯m 384–6; ʿlim (knowledge) 376; and ijtiha¯ d 377; ʿisma (infallibility) 376; juristic interpretations of rule of 379–82; jurist’s expanded authority in absence of 382; and Muslim minorities in the West 314; and politics 377; Shi’i Imamate 375; wila¯ ya (authority) 377 India: Anglo-Muhammadan Law 31, 294; Ghaznavid dynasty 371; Mughal Empire 368, 369 infallibility see ʿis․ma inheritance see marriage, family and succession interpretation see ijma¯ ʿ; ikhtila¯ f; judicial authority; jurisdiction and conflict of laws; madhhabs; maqa¯․sid al-Shariʿah; qawa¯ ʿid fiqhiyya; sources of Islamic law; Western law Iran: ikhtila¯ f and prohibition of usury 190; Imamate 375; muftis 166; Safavid Empire, state and politics 368–9; type of Islamic law 12; wila¯ yat al-faqı¯h 382; see also imams; Shi’i concept of the state Iraq, post-occupation return of sovereignty 374–5 Islamic Awakening 315 Islamic law: as academic discipline 2; approaches to 1–9; canons see canons of law; classical 30–2; definition 11, 32; existence of 11, 13–14; history see history; modernity 177–80, 188; and natural law see natural law; nature of 14–17; pre-Islamic law see pre-Islamic law; profane domain 26–8; ‘proprietor’-oriented view 74; purposes 14–17, 196–9; sacred domain 26–8; schools see madhhabs; sources see hadith; Qurʾan; type of law 11–12, 32–4; and Western legal systems in Muslim countries 11; see also Shariʿah ʿis․ma (infallibility) 376 Ismaʿili legal school 23 Israelite prophetic governance 359 istih․sa¯ n (equitable juristic discretion): ʿa¯ da and 232; qawa¯ ʿid fiqhiyya 56–8 Jaʿfari legal school: foundation of 148; ijma¯ ʿ 176, 177; ikhtila¯ f 187–8, 192; Jaʿfar al-Sadiq, life and career 23, 148; superior argument 187–8, 189, 192 jihad (effort to fulfil God’s will) 301–11; and application of Islamic law 301; armed conflict as 301; caliphate and 309; collective jihad 301; conquered territories, policy towards 361; continued debate on 311; doctrine of 301; five rules of combat 436; individual jihad 301; Islamic understanding of 301; and jurisdiction of Islamic law 308–10; justification for 302–5, 310; modern context of 311; objective of 301; peaceful methods 301; in Qurʾan 301;

Index

regulations on use of force 311; rules of 310; sovereignty and 308–10; territorial divisions of the world 305–7, 310; terrorist misuse of 311; and UN Charter 311; violent methods 301; see also terrorism jizya (poll tax on non-Muslims) 370–1 judicial authority 156–68 jurisdiction, jihad and 308–10 jurisdictional disagreements see ikhtila¯ f jurisprudence see fiqh juristic disagreements see ikhtila¯ f justice: equality and 349–50; haqq and 67; and natural law 60–3; social construction of 340 al-Juwayni, Abu al-Maʿali 17, 20, 103, 104, 172–3 kaffa¯ ra¯ t (expiation), and ․huqu¯q Allah 70 kala¯ m (doctrine), and Divine Command Theory 101–3 kashf wa¯ qiʿ (intented truth of Divine laws) 377 khawarij see terrorism Khomeini, Sayyid Ruhollah Musavi Khomeini, Ayatullah 382–6 khuntha¯ (‘third gender’) 326 knowledge see ʿilm al-Kufi, Sufyan ibn Saʿid al-Thawri 149–50 al-kulliya¯ t al-khamsa (five universal principles) (22, 107 law making and natural law 58–60 al-Layth, Abu al-Harith 150 legal canons see qawa¯ ʿid fiqhiyya legal culture: colonialism and 30–2; pre-Islamic regional legal culture 276, 281 legal pluralism: in Islamic law see ikhtila¯ f; preIslamic law 281 legal transplant adoption (‘recycling’) of pre-Islamic law 275, 281; codification and 389, 394–7 legal treatises see mukhtasars legitimate lineage see nasab ‘literalist’ hermenuetics 138 localization of Islamic law 395–7 madhabs (legal schools): beginnings of Islamic legal discourse 141; codification of legal opinions 141; origins and founders of 141–52; see also ahl al-athar; ahl al-raʾi Majalla (Ottoman) law of custom 292, 393 al-Majd, Abu, constitutional theory 409–10 Malik ibn Anas 20, 22, 141, 142, 143, 144–6, 147, 148, 149, 150, 151, 210, 211, 264, 327, 328; see also Maliki legal school Maliki legal school: and ahl al-raʾi school 56; al-Ahkam al-Sultaniyya 366, 367, 368; bioethics 114, 115; constitutionalism 419, 422, 423; custom 26, 293; da¯ r al-Isla¯ m 305;

five principles of 145; foundation of 22, 144–6, 364; ․huqu¯q Allah 75; ijma¯ ʿ 172, 177, 179; ijtiha¯ d 258; istih․sa¯ n 288; legal pluralism 20, 215; Malik ibn Anas, life and career 144–6; marriage 325, 327, 328, 420; marriage dissolution 331, 332, 333; mas․lah․a 59; nasab 330; natural law 57; Nigerian ‘native courts’ 163; purposes of law 197, 198; sources of Islamic law 26, 51; taqlı¯d 258; terrorism 428, 430, 431, 432 maqa¯ sid al-Shariʿah (purposes of Shariʿah): ability to discern 195; bioethics and 107, 113; definition of 199, 201–2; doctrine of 107; as ethical values 229; expanded scope of 201–2, 203; five objectives 22; historical sources 197–9; legal discourse on 195; mas․lah․a 196–9, 203; modern period 199–203; narrow scope of 203; principles of application 195; as public policy 204; qawa¯ ʿid fiqhiyya distinguished 229; qawa¯ ʿid 197–9; ‘system-approach’ to 202–3; theological discourse on 195; varieties of interpretation 203–4 marginalization of Islamic law by codification projects 397 marriage, family and succession: adoption of Western legal categories 324; divorce waiting period (ʿidda) 332; dower and maintenance (mahr/nafaqa) 329–30; dower redemption (khulʿ) 333; feminism and 335; fiqh 325; future of family law 335; gender 325–6; gender equality 335, 342; husband’s rights 335; ikhtila¯ f 325; legitimate lineage (nasab) 330–1; marriage (nika¯ h) 326–7; marriage as money relation 335; marriage contract (ʿaqd) 327–8; marriage dissolution 331; marriage guardian (walı¯ al-nika¯ h) 328; marriage impediments (mawa¯ niʿ) 329; marriage repudiation (t․ala¯ q) 331–2; marriage rights (h․uqu¯q) 329; marriage to male apostate, repudiation of 191; modernity and inheritance 178, 180; modernity and mixed marriages 178, 179–80; paternity canon (al-walad li-l-fira¯ sh) 226, 230; patriarchal type of law 335; pre-Islamic legal practices 324; Qurʾan 324; separation by court (khiya¯ r fi al-nika¯ h) 333–4; sexual relations 325–6, 335; succession 334–5; traditional Islamic legal categorisation 324; undelivered gifts of heritable property, validity of 191; variety of regulations and rulings 325 maʿru¯f see custom mas․lah․a (well-being) 59, 196–9, 203 al-Mawardi, Abu al-Hasan ʿAli 366–7 Mawdudi, Abu al-Aʿla, theory of Islamic State 406–9, 410–11 medicine see bioethics modernity and Islamic law 177–80, 188 modesty and body covering, regulations on 343 445

Index

Moosa, Ebrahim 13 morality and natural law 99 muʿa¯ mala¯ t (social relational branch of law): and gender equality 347; ʿiba¯ da¯ t distinguished 347; wuju¯b and 86–90 muftis ( jurists): historical development 158, 164–8; historical sources 157; issuing of fatwas 156; and Muslim minorities in the West 314; role of 156–7; scholarly views on 158; see also qadis Mughal Empire (India), state and politics 368, 369 Muhammad, Prophet: agency from 376–7; Arab ancestry 396; authority 54, 165, 263, 358, 375, 378, 408; Companions 56, 141, 172, 179, 210, 257, 288, 306, 358, 434; death 23, 54, 128, 172, 212, 305, 346, 359, 433, 436; example 5, 303; family and successors 19, 146, 166, 179, 208, 324, 327, 359, 375, 416; hadith see hadith; lifetime 18, 51, 198, 225, 288, 301, 358, 428, 429; messengership 127, 347, 358, 402, 407; miracles 289; rulings 51, 158, 280; sacred and temporal roles 18, 48, 383, 416; Sunnah see hadith mujtahids (scholars qualified in ijtiha¯ d) 259, 263 mukhtasars (legal treatises) 393, 411 murder see crime and punishment Musawah global movement 347–9 Muslim Brothers 315, 318 Muslim minorities in the West: balancing of assimilation and adherence to Islam 314; discrimination against 314; early jurisprudence as to 313; history of minority experience 313; imams, role of 314; and Islamic Awakening 315; justification for non-integration 314; maintenance of separate Muslim identity 314; modern changes in relationship with West 314; modern migration to West 313; muftis, role of 314; and Muslim Brothers 315; Muslim minorities worldwide 313; Muslims born in the West 315; unity of Islamic law and culture 314; and Wahhabi-oriented organizations 315; see also of fiqh al-aqalliyya¯ t Muʿtazilite legal school 100–7, 109 nasab (legitimate lineage) 330–1 ‘native courts’ in Nigeria 163 natural law: ‘Common Morality Theory’ (CMT) and 100; creation and 47–51; Divine Command Theory and 98, 99; first principles 43; formulation of law 45–6; function 43; Islamic legal principles and 47–60; juristic discretion and 56–8; law making and 58, 58–60; and medieval Christianity 100; modern interpretations 100; morality and 99; origins in ancient Greek philosophy 100; political philosophy and 60–3; politics and 60–3; society and 45–6; theory of being 43–4 446

‘Near Eastern’ legal culture see pre-Islamic law Nigerian ‘native courts’ 163 nika¯․h (marriage) see marriage, family and succession non-Muslims: conquered territories, Islamic policy towards 361; and fiqh al-aqalliyya¯ t 319; jizya 370–1 al-Nuʿman, Abu Hanifa 20, 22, 23, 54, 55, 57, 75, 141, 142–4, 145, 147, 148, 151, 211, 213, 306, 307, 308, 310, 328, 431; see also Hanafi legal school organ donation or transplantation, ethics of 117 original state of humanity see natural law Ottoman Empire: codification 393; end of, and abolition of caliphate 293, 305, 402; jizya 370–1; Majalla (Mecelle) law of custom 292, 393; muftis 165; qadis 162; state and politics 368–71; type of Islamic law 12 Pakistan as ‘Islamic state’ 406–9 paternity see marriage, family and succession patriarchalism 324, 325, 326, 335, 340–6, 351 pluralism 20–6; see also ikhtila¯ f politics see constitutional law; natural law; state poll tax see jizya power see state pragmatic approach to ikhtila¯ f 214, 216, 217 prayer see daily prayers pregnancy, ethics of 118 pre-Islamic law: adoption (‘recycling’) by Islamic law 275, 281; Byzantine legal system 279; geographical scope 275; jurisprudence 281; law and state in ‘Near Eastern’ legal culture 278; legal pluralism 281; limitations of conventional historiography 276; orthodox Islamic scholarship 280–1; and regional legal culture 276, 281; Sasanian legal system 278–9; temporal scope 275; transition from pre-Islamic to Islamic state legal systems 279–80; tribal legal systems 278; variations in continuity with Islamic law 276 pre-Islamic legal traditions 275–82 profane (domain of ) 26–8; see also muʿa¯ mala¯ t ‘proprietor’-oriented view of law 74 public officials in Sunni constitutional theory 422–4 public order and ․huqu¯q Allah 69 public policy, maqa¯․sid al-Shariʿah as 204 punishment see crime and punishment qadaʾ (adjudication) 383–4 qadhf (homicide) 72 qadis ( judges): historical development 158–64; historical sources 157; role of 156–7; scholarly views on 157–8; women as 161; see also muftis al-Qarafi, Ahmad ibn Idris 172–3, 197–8

Index

al-Qarafi, Shihab al-Din 6, 51, 258–61, 368, 416, 419, 420–3 qawa¯ʿid fiqhiyya (legal canons): for allocation of power between judicial and political authorities 225; burden of proof canon 234; categories 227–8; categories of 222; causation and 226; certainty canon 229; comparative law approach to 242–3; consensus canons 223–4; contractual obligations canon 224; contradictory evidence canon 235; correlation between 226; court procedure canons 234; custom canon 224, 227, 229, 292; ․daru¯ra 224; definition 221; delegation, theology of 233, 235; divine legislative supremacy, theory of 233; doubt canon 223, 224, 225, 226, 227, 234, 235; emergence 221, 222; equitable principles 224; equity (extratextual-source) canons 227; evaluation canon 229; evidence canon 224, 226; evidentiary canons 234–5; extratextual canons 228, 232, 233–4; extratextual sources 224; five categories of 222; five universal canons 227, 229, 233, 292; functional classification 228; general canons 229, 230; general standard for determining law of social relations and transactions 225; governance canons 228, 236–7; hadith as source 222–3; hardship canon 229; impermissibility presumption 233; interpretive canons 227, 228, 231–2; interpretive sources 223; interpretive-source canons 227; in Islamic legal history 238–40; in Islamic legal theory 240–1; judicial conduct canons 236; from judicial practice, precedents and procedures 224–5; judicial procedure canons 234, 236; from legal reasoning 224; literal meaning canon 232; and maqa¯․sid alShariʿah 197–9; maqa¯․sid al-Shariʿah distinguished 229; no harm canon 224, 226, 229; nonsuperfluity canon 224; paternity canon 226, 230; permissibility presumption 225, 233; plain meaning canon 223; from practical principles, presumptions and governance norms 225–6; procedural canons 228, 234–5; procedural presumptions 233; Qurʾan as source 222; reasonable person standard 224; source-based classification 228; source-preference canons 228, 232–3; sources 222–7; specific canons 229, 230–1; structural canons 228, 237–8; study of 221–2, 238–43; substantive canons 227, 228; textual canons 228, 232; textual-source canons 227; from transplanted law 226–7; universal canons 227, 228, 229, 233, 292; universal canons and universal objectives (maqa¯․sid alShariʿah) distinguished 229; ua․u¯l ʿamaliyya 224 Qurʾan: authenticity of 127; authority of 127; certainty as to interpretation of 138; complimentarity with hadith 129; definition of 127; generalised rulings by 138; hadith

as interpretative tool 134; hermeneutics (interpretation) of 129–39; indpendence from hadith 129; punishment for theft as example of interpretation of 133–8; as source of Islamic law 127–39; tolerance for different interpretations of 138 al-Razi, Fakhr al-Din 25, 48, 172–3, 174, 197 reason: analogical 224; autonomous 255; epistemic 265; practical 265, 377–8; revelation and 51 religious violence 428–38 revelation and reason 51 ritual, law of see ʿiba¯ da¯ t sacred (domain of ) 26–8; see also ʿiba¯ da¯ t al-Sadiq, Jaʿfar 23, 141, 144, 148, 187; see also Jaʿfari legal school Safavid Empire (Iran), state and politics 368–9 same-sex relations 326 Sasanian legal system 278–9 Schacht, Joseph 256–8, 260–1, 262 scholarly interpretation see ijma¯ ʿ; ikhtila¯ f; judicial authority; jurisdiction and conflict of laws; madhabs; maqa¯․sid al-Shariʿah; qawa¯ ʿid fiqhiyya; sources of Islamic law; Western law segregation of men and women 343 separation see marriage, family and succession sexual relations see marriage, family and succession Shafi’i legal school: and ahl al-ra’i school 55; al-Ahkam al-Sultaniyya 366, 367; bioethics 114, 115; codification of laws 364; conflict of laws 186, 191; constitutionalism 417, 422, 423; custom 293; da¯ r al-Isla¯ m 305; foundation of 146–8; ijma¯ ʿ 178; istih․ sa¯ n 57; legal pluralism 20, 23, 25, 28, 216; marriage 325, 326, 328; marriage dissolution 331, 332, 333; maslaha 59; Muhammad ibn Idris al-Shafiʿi, life and career 146–8; and Muʿtazilite legal school 104; nature and purpose of Islamic law 15; purposes of law 196, 197; sources of religious knowledge 289; spread of 102; taqlı¯ d 263; terrorism 428, 430, 432, 433, 435 al-Sistani, Ali, Grand Ayatullah 374–5 al-Shafiʿi, Muhammad ibn Idris 16, 20, 23, 53, 55, 57, 102, 103, 137, 141, 142, 143, 145, 146–8, 149, 150, 152, 210, 212, 213, 214, 263, 271, 304, 307, 308, 311, 433, 435; see also Shafi’i legal school Shariʿah (Way of Islam): definition 11; divine origin of 101; fiqh distinguished 101, 347; five objectives 22; as normative 11; see also Islamic law al-Shaybani, Ahmad ibn Hanbal 23, 145, 147, 150–1, 152, 211, 213, 292, 305; see also Hanbali legal school 447

Index

Shiʿi concept of the state: agency derived from the Prophet 376–7; and Coalitional Provisional Authority (CPA) administration of Iraq 374–5; fatwa of Grand Ayatullah Ali al-Sistani 374–5; fatwas, issuing of 382–3; H ․ akı¯m, Imam’s role as 384–6; ijtiha¯ d 382–3; Imamate 375; imams and politics 378–9; juristic interpretations of Imam’s rule 379–82; jurist’s expanded authority in absence of Imam 382; lut․f (divine grace) and 375–6, 377; politics and practical reasoning 377–8; qad․aʾ (adjudication), political role of 383–4; wila¯ yat al-faqı¯h (comprehensive authority of jurists) 382 Shi’i view of Islamic law: ijma¯ ʿ 176–7; ikhtila¯ f 187–8, 192; legal schools see Ismaili legal school; Jaʿfari legal school; Zaydi legal school; practical reasoning 224; procedural presumptions 233; reasonable person standard 224; see also Shiʿi concept of the state social dimension of law see custom; family law; gender equality; jihad; muʿa¯ mala¯ t; Muslim minorities in the West; natural law; pre-Islamic legal traditions; succession sources of Islamic law see hadith; Qurʾan sovereignty: divine 375; jihad and 308–10; postoccupation return of Iraqi sovereignty 374–5 state: al-Ahkam al-Sultaniyya (Mawardi) 366–7; caliphate as constitutional government 418–19; conquered territories, policy towards 361; early caliphate 361–2; early Islam 357; early modern empires 368; Ghaznavid rule in India 371; governance (h․ukm) 360–1; historical development of political and legal institutions 361–71; historical sources 357; and ․huqu¯q al-iba¯ d 76; and ․huqu¯q Allah 72; imperial caliphate (Umayyads and early Abbasids) 362–4; Islamic law in relation 419–22; Islamic state/governance, notion of 357; Israelite prophetic governance in relation 359; late medieval (post-Mongol) era 367–8; military patronage rule (early medieval period) 364–5; Mughal Empire in India 368, 369; and natural law 60–3; in ‘Near Eastern’ legal culture 278; object of Islamic theory of 375; Ottoman Empire 368–71; Ottoman poll tax on non-Muslims ( jizya) 370–1; political concepts in Qurʾan and hadith 357; public officials in Sunni constitutional theory 422–4; Safavid Empire (Iran) 368–9; Shi’i conception 374–86; social continuity and political fragmentation 371; sultanates (early medieval period) 364–5; Sunni caliphate discourse 365; Sunni conception 357–71; transition from pre-Islamic to Islamic state legal systems 279–80; ulu¯ al-amr 358; umma 358, 359;

448

Western conceptions 359; see also codification; constitutional law; natural law; Shi’i concept of the state; sovereignty; terrorism succession see marriage, family and succession sultanate see state Sunnah see hadith Sunni view of Islamic law: abrogation of earlier arguments 188; caliphate 365–8; ijma¯ ʿ 176–7; ikhtila¯ f 183, 192, 208; law schools see Hanafi legal school; Hanbali legal school; Maliki legal school; Shafi’i legal school; Qurʾan and hadith as primary legal sources 127, 129, 133; reasoning from analogy 224 superior argument see ikhtila¯ f tah․sı¯n (declaring something pleasant) 57 taqlı¯d (conformity to teaching): academic perspectives on 256, 258; authority and 259, 261; and ‘closing of the door of ijtiha¯ d’ 257; definition of 257; dominance of 259; epistemic authority 262–5; ijtiha¯ d in relation 258, 261, 263; institutionalization of 260; and legal development and innovation 259, 261; mimetic authority 262–5; and mujtahids 259, 263; as negative influence in Islamic law 261, 264; reason and 262, 265; as unquestioning acceptance 257 temporal conflict of laws see ikhtila¯ f territorial divisions of the world 305–7, 310 terrorism: Islamic definition of 429–32; jihad and 311; modern relevance of classical jurisprudence 437–8; punishment of 432; Qurʾan-sanctioned terrorism (h․ira¯ ba, khawarij) 428; Qurʾanic accounts of 429; religious violence 433–7 theft see crime and punishment ‘third gender’ see khuntha¯ transplanted human organs, ethics of 117 transplanted law see legal transplant treatises see mukhtasars tribal legal systems (pre-Islamic) 278 truth, Divine see kashf wa¯ qiʿ ulu¯ al-amr (persons with authority, rulers) 358 umma (community of Islam) 358, 359 UN Charter: jihad and 311 UN Security Council resolutions on Iraq 374, 375 ʿurf see custom use of force see jihad us․u¯l al-fiqh (principles of jurisprudence) 227, 228 us․u¯l ʿamaliyya (procedural principles) 224 usury, ikhtila¯ f and prohibition of 190 veiling of women (hijab), regulations on 343 violence see jihad; religious violence; terrorism

Index

Wahhabi-oriented organizations: and Muslim minorities in the West 315 war see jihad well-being see mas․lah․a Western law, thought and scholarship: autonomous reason 255; certainty, possibility of in modern age 188; customary foundations of law 286; Enlightenment 256; epistemic reason 265; family law 324; and fiqh alaqalliyya¯ t 319, 320; hadith in 129; individual rights and ․huqu¯q al-ʿiba¯ d distinguished 69; legal canons 226, 228; legal pluralism 209, 217; original state of humanity 60; origins of Islamic law 276–7; personal status law 324; practical reason 265; revelation and reason 51; state, conceptions of 359; succession law 324; Western legal systems in Muslim countries 11; see also bioethics; Christianity; gender equality; Muslim minorities in the West; natural law wila¯ ya (authority of Imam) 377

wila¯ yat al-faqı¯h (comprehensive authority of jurists) 382 women see feminism; gender equality; marriage, family and succession worship, law of see ʿiba¯ da¯ t wuju¯b (obligation): in classical jurisprudence 83–6; ‘command of the sovereign’ model of explanation of 83; concept of legal obligation 82; ʿiba¯ da¯ t and 86–90; in Islamic legal thought 82; muʿa¯ mala¯ t and 86–90; range of obligations in classical fiqh 90–4; understandings of 83 al-Zahiri, Dawud ibn Ali ibn Khalaf 23, 152; see also Zahiri legal school Zahiri legal school: and ahl al-raʾi school 55; Dawud al-Zahiri, life and career 152; foundation of 152; legal pluralism 212, 213, 215; ‘literalist’ hermenuetics 138 Zarkashi, Muhammad ibn Bahadur 171, 175–6 Zayd ibn ʿAli 23, 142 Zaydi legal school 23, 141, 176

449