Contextual backgrounds and necessary clarifications

‘Islamic law’ is the widely accepted translation for both fiqh and Shari 'ah, 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, Shari 'ah 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. Shari 'ah, 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 usUliyyUn, those scholars concerned with establishing the methods, foundations and fundamental principles for belief and practice, namely usiil al-din (kalim) and usiil al-fiqh, definitely aimed at coming closer to understanding the Shari 'ah 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 usiil al-din or 'Ilm al-kalam 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 Murji’ ites, 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-Shafi'i (d. 204/820), who is usually considered the founder of usul al-fiqh, not to mention the fact that laws and regulations were articulated before the establishment of the discipline of usul al-fiqh, sometimes translated as the ‘Theory of Law’. We often read in classical and modern literature that attempts to intertwine kaldm and fiqh started as early as the beginning of the third/ninth century with Abu Bakr al-Asam (d. 200/816),¹⁴ Ibrahim al-Nazzam (d. between 220/835 and 230/845) and Abu Hudhayl al- Allaf (d. 235/850),¹⁵ which is also the time when the usiil al-fiqh started emerging as a discipline of its own. However, throughout the later centuries, the relation between the two disciplines, namely kalim and usiil al-fiqh, was disputed. Some were eager to eliminate all issues related to kalim from the works offiqh and usiil al-fiqh on the ground that issues of kalim were imposed upon the field offiqh, as held by some Hanbalite jurists, while others only wished to distinguish between the two fields for methodological and practical reasons, like the Mutazilite Abu al-Husayn al-Basri (d. 436/1044).¹⁶

'Ilm al-kalam 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, kalim 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 kalim 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 Mutazilite school of kalim in the mid-second/eighth century.

The name Mu'tazilite 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 kalam that issues pertaining to belief (‘aqtda) as opposed to issues related to practice were articulated. Nevertheless, works of kalam usually contain discussions pertaining to the concerns of fiqh and works offiqh often contain sections that confirm doctrines derived from kalam and are related to the fiqht normative enterprise.

It could not have been a coincidence that the Mu'tazilite emerged from Basra, one of the Iraqi cities which were associated with the emergence of the ahl al-ra'y who relied on reason in deriving legal judgements. Ahl al-ra'y, a term rather awkwardly translated to ‘rationalists’, are usually opposed to the traditionalists (ahl al-HadTthfi who favoured the reliance on textual proof, even when it could be only a Hadtth ahad with a limited number of transmitters in its chain of narrators. In a book written by Abu Hilal al-'Askari, called ‘al-Awa ' illiterally, ‘The Firsts’, it is mentioned that one of the founders of the Mu'tazilite was the first to discuss issues related to usul al-fiqh. The Mu'tazilite had a great impact on the emergence of usul al-fiqh.¹⁹ The term ra'y 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 Quranic injunction or an example from the prophetic tradition.

Peoples’ custom (‘urf) that did not contradict the clear teachings of the Qur’an was invoked in addition to preference (istihsdn and istislah). 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 'ilm al-Hadtth 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-Shafi'l, who is often considered to be the founder of legal theory or usul al-fiqh. Al-Shafi'l himself arrived in Iraq in around 184/800, where he encountered the Hanafis, associated with al-ra'y and also the Mu'tazilite. The engagement with the Iraqis must have had a deep impact on al-Shafi'l.²¹ The Hanafis had sought to systematize the edifice of law by subjecting its individual rulings to the test of ra'y, while al-Shafi'i, according to El-Shamsy,²² went deeper by striving to systematize the methodological basis of the law as a whole. While al-Shafi'i emerged as a non-Mutazilite, he most certainly did not belong to the camp of the traditionalists (ahl al-Hadtth ) as a traditionalist he would have betrayed his comrades when he insisted on the essential role of qiyas (reasoning by analogy) in law.²³ His importance was in the establishment of a methodology for deriving laws that elevated Hadith, even the ahad Hadtth, over reason, in an attempt to reduce or rule out differences in opinion.

The most significant early Shafi' ite jurist, who seems to have articulated and spread Shafi' ism, was Ibn Surayj (d. 306/918). None of his works seem to have survived, yet we know that his students were the most prominent Shafi'ites of the first half of the fourth/ tenth century.

Ibn Surayj held that the unaided reason (al-'aql) can discern the good and the detestability of some things.²⁴ Al-Sayrafi (d. 330/942) and al-Qaffal al-Shashi al-Kabir (d. 365/976), among other Shafi' ites, all held positions that were later correctly seen as endorsing elements of the Mutazilite ethical doctrines.²⁵ Thus, regardless of the fact that al-Shafi' i 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-Shafi' i. Indeed, the work of his early followers suggests the opposite. Therefore, I think there is no good reason for considering al-Shafi' i’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 qiyas 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 Ash 'arite school of kalam 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-Ash'ari (d. 323/935) was initially a Mutazilite, but as he disagreed with them on various issues he dissented. Later he became the eponym of a new school of kalam 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 Ash'arite basis.²⁷ Al- Juwayni is also generally recognized as the most important figure between the old Ash 'arite tradition and the later one that included al-Ghazali (d. 505/1111) and his successors.

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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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