Approaches to legal pluralism in substantive legal discourse

3.1 Fallibilist formalism: the preponderance (tarjrh) 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.

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 taqlid (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.

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 ijtihad, going against the available corpus ofjuristic disagreements.²⁶ Ibn Rushd walked the reader through these varying hermeneutic modes in order to assist her or him in exercising ijtihad on new cases. Unlike Ibn Hazm, although Ibn Rushd disagreed with some jurists and assumed that his own ijtihad 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.

3.2 The pragmatic approach

The approach of Ibn Hazm and Ibn Rushd contrasts sharply with that of the 14th-century Shafi'i scholar 'Abd 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 (tarjTh) 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-Ummafi Ikhtilaf al-A'imma (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 ijtihad 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'Abd al-Wahhab al-Sha'rani (d. 973/1565), except that he would develop a theory to justify such pragmatism. According to al-Sha'rani’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-Sha'rani’s work was the exact opposite of that of Ibn Hazm, for the latter sought to show the invalidity of many of the views ofjurists in the four Sunni schools. Al-Sha'rani 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.

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 talfTq) to accom­modate new conceptions of the family, childhood, womanhood and human rights.³⁰