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 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 ofjuristic 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 ofjuristic 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 Mu'tazilis 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, 'Abd al-Rahman al-Dimashqi and al-Sha'rani. The fallibilist al-Sha'rani developed an ingenious theory to 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 Abbasid 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 Ali ibn Muhammad Mawardi, The Ordinances of Government: A Translation of al-Ahkam al-Sultaniyya w’ al-Wilayat al-Diniyya, trans.

Wafaa Hassan Wahba (Reading: Garnet Publishing, 1996).

3 Ahmed Fekry Ibrahim, ‘Rethinking the Taqlid Hegemony: An Institutional, Longue-Duree Approach', Journal of the American Oriental Society 136:4 (2016): 808-12.

4 Ibn Abi Hatim al-Razi, Al-Jarh wa-l-Tadil, ed. 'Abd al-Rahman b. Yahya al-Yamani (Beirut: Dar al-Kutub al-'Ilmiyya, 1953), 1:31-2; Ahmad b. al-Husayn al-Bayhaqi, Manaqib al-Shafii 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. 'Abd al-Fattah Abu Ghudda, 3rd edn (Beirut: Dar al-Nafa’is, 1986), 42-4; Jonathan Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oxford: Oneworld, 2009), 27-9.

5 Ahmad b. Hanbal, Masa'il al-Imam Ahmad Ibn Hanbal Riwayatu Ibnihi "Abdullah Ibn Ahmad, ed. Zuhayr al-Shawish (Beirut: al-Maktab al-Islami, 1981), 449; Abu Muhammad al-Hasan b. 'Ali b. Khalaf al-Barbahari, Sharh al-Sunna, ed. 'Abd 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 Sunni 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 Maliki Texts', in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden and Boston, MA: Brill, 2002), 3-22; Jonathan E.

Brockopp, Early Maliki Law: Ibn Abd Al-Hakam 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 Taqlid-Ijtihad 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 Boynukalin (Beirut: Dar Ibn Hazm, 2012), 12:102.

11 Yasin Dutton, The Origins of Islamic Law: The Qur'an, the Muwatta' and Madinan Amal (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-Shafi'i, Al-Risala, ed. Ahmad Muhammad Shakir (Beirut: Dar al-Kutub al-'Ilmiyya, 1940), 2:476-505; Ahmed Fekry Ibrahim, ‘Rethinking the Taqlid-Ijtihad Dichotomy: A Conceptual-Historical Approach', Journal of the American Oriental Society 136:2 (2016): 287-8.

14 Abu Muhammad al-Hasan b. 'Ali b. Khalaf al-Barbahari, Sharh Al-Sunna, ed. 'Abd al-Rahman b. Ahmad al-Jumayzi (Riyadh: Dar al-Minhaj, 2005), 35-40, 90-116.

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, Masai al-Imam Ahmad Ibn Hanbal Riwayatu Ibnihi 'Abdullah Ibn Ahmad, ed. Zuhayr al-Shawish (Beirut: al-Maktab al-Islami, 1981), 449; Abu Hamid al-Ghazali, Al-Mustasfa min 'Ilm al-Usul, ed.

Hamza b. Zuhayr Hafiz (Medina, Saudi Arabia: Sharikat al-Madina al- Munawwara li-l-Tiba'a, 1992), 4:154 -5.

18 Ibrahim, Pragmatism in Islamic Law; Ibn Hanbal, Masa'il al-Imam Ahmad ibn Hanbal Riwayatu Ibnihi Abdullah ibn Ahmad, 449.

19 Ibrahim, Pragmatism in Islamic Law, 3.

20 Tarjah 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 tarjah 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 tarjah, see further Hallaq, Authority, Continuity, and Change, 147-66; Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab Al-Dan Al-Qarafa (Leiden and Boston, MA: Brill, 1996), 83-9; Ulrich Rebstock, ‘A Qadi’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, Soci- olegal Studies, and the Fact-Value Distinction’, American Journal ofJurisprudence 41:1 (1996): 315-55; Richard A. Posner, ‘Pragmatic Adjudication’, Cardozo Law Review 18 (1997-1996): 1-20; Richard A. Posner, The Problems ofJurisprudence (Cambridge, MA: Harvard University Press, 1990).

22 Ibrahim, Pragmatism in Islamic Law, 63-104.

23 Abu Muhammad 'Ali b. Ahmad b. Sa'id b. Hazm, Al-Muhalla, ed. Mu hammad Munir Dimashqi (Cairo: Idarat al-Tiba'a al-Muniriyya, 1933), 1:2.

24 On verification of juristic opinions, see Ibrahim, ‘Rethinking the Taqlad-Ijtihad 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-Ma'rifa, 1982), 1:1-30; Yasin Dutton, ‘The Introduction to Ibn Rushd’s Bidaayat al-Mujtahid’, Islamic Law and Society 1:2 (1994): 188-205.

26 Wael B. Hallaq, ‘Murder in Cordoba: Ijtihad, Ifta ' 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 Ju ristic Discourse between Inertia and Change’, Islamic Law and Society 22:3 (2015): 35-48; Ahmed Fekry Ibrahim, Al-Sha'rani’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-Sha'rani’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 Qur'an, the Muwatta' and Madinan Amal (Richmond, Surrey: Curzon Press, 1999).

Hallaq, Wael B. Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge University Press, 2001).

Hallaq, Wael B. Shara 'a: Theory, Practice, Transformations (Cambridge and New York: Cambridge University Press, 2009).

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 Taqlid: The Four Chief Qadis 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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Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

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