Causes of legal pluralism

The earliest sources of Islamic law (eighth and ninth centuries) attribute juristic disagree­ments to the hermeneutic activities ofjurists 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).

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.

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 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.

One could, pace Hallaq, find a common core of doctrines as in the case of the practice (amal) 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 ofjurists such as Ibrahim al-Nakha'i (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 (ijtihad) on points of dis­agreement.

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 ofjuristic 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 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 ofjuristic disagreements led to a debate about the ontology of legal truth, with some legal theorists justifying or narrowing areas of legal pluralism.