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 Shafi'i schools of law, Abu Hanifa (d.

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 Shafi'i jurist, al-Juwayni (d.

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 ofbelief about the law. At the point that a preponderance ofbelief 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 ofliteral textualism.³⁴ This philosophy did not mean that Muslim jurists accepted legal relativism or even in­determinism in Shari'ah. Shari'ah was considered to be the immutable, unchangeable and objectively perfect Divine truth. Human understanding of Shari 'ah, however, was subjective,

partial, subject to error and change. While Shari 'ah is Divine, fiqh (the human understanding of Shari 'ah) was recognized to be only potentially so, and it is the distinction between Shari 'ah and fiqh that fueled and legitimated the practice of legal pluralism in Islamic history.³⁵ The conceptual distinction between Shari 'ah 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.

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 Shari 'ah andfiqh. In the Islamic legal tradition, there is only one Shari 'ah (Shari 'at Al­lah), but there are a number of competing schools of thought offiqh (madhdhib fiqhiyya).

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 offiqh, 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 faqdh (jurist), not every faqdh agreed to serve as a judge (qadi), and not every qadi was a reputable faqdh. The tension and resistance of legal scholars (fuqaha") to the temptations of power and to the allure of accepting a judicial post (qadd') 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 offiqh, 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), Ibn Idris al-Shafi'i (d. 820, eponym of the Shafi'i school) and Ahmad b. Hanbal (d. 855, ep­onym of the Hanbali school). There are three major Shi'i schools of law: the Ja'faris (named after Jafar al-Sadiq, d. 765), the Zaydis (named after Zayd b. 'Ali, d. 739), and the Ismailis with their own unique legal heritage. Other than the Sunnis and Shi'is, there is the legal tradition of the Ibadi school, which descended from the sect of the Khawarij. There are also many extinct schools such as these of: Ibn Abi Laylah (d. 765), Sufyan al-Thawri (d. 777), Ibn Jarir al-Tabari (d. 923), 'Abd Allah b. Shubruma (d. 761), al-Layth b. Sa'd (d. 791), Sharik al-Nakha'i (d. 803), al-Awza'i (d. 773), Ibrahim Abu Thawr (d. 854), Dawud b. 'Ali 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 offiqh 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 madhahib 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 madhahib or schools of law was not a short-lived phenomenon. The contingencies of history are many, and there are madhahib that thrived in Andalusia or Egypt, for instance, but which were overcome by another madhhab and eventually vanished; and there are madhahib 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 offiqh. Put differently, there did not seem to be many issues in Shari'ah that were off-limits for the inquiries offiqh. Rather, the grand abstract types of questions that were raised when attempting to expound a systematic de­marcation between Shari 'ah and fiqh were handled within the classical madhahib through the micro-technicalities of the practice of law. Rather than struggle with the larger abstract conceptual questions, the Shari 'ah/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 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 kaldm, 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 offiqh, 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 hypo- theticals 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 (mubah/haldl); 2) obligatory (fard/wajib); 3) forbidden (muharram); 4) recommended (mandub/ mustahab); and 5) reprehensible or disfavoured (makruh). 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 ‘indana). The critical point is that the masters offiqh 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. fatdwa) 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 Shari‘ah 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 Mihna (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 diwdns (diwdn al-mulk, diwdn al-hukm, diwdn al-mu 'dmaldt, 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 madh- hab. By the end of the tenth century, as more schools offiqh became extinct, thriving schools became increasingly institutionalized and organized as legal guilds with complex processes 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-mutamadft 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-quda) 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. Taqldd (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, taqldd 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 (ijtihdd). Indeed, many of the most important developments in Islamic law were accomplished by jurists centuries after the supposed ‘doors of ijtihdd’ were closed.

The essential point about the Islamic legal tradition, and especially the role offiqh, 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 Aqil (d. 1119) achieved unprecedented advancements in the use of systematic and analytical reasoning in Islamic jurisprudence. In the case of a Shafi'i jurist such as al-Subki and a Hanbali jurist such as Ibn 'Aqil, it is fair to say that, methodologically, they became the embodiment of the Latin maxim ratio est radius divini luminis (reason is a ray of divine light). Some jurists, such as the Hanafi Ibn 'Abidin (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 istihsdn and istislah (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 Shari 'ah and fiqh, but between the realm of God and that of humans, and ultimately, between the sacred and the profane.