Functions of legal pluralism
Despite the acceptance of juristic disagreements among the earliest jurists as valid articulations of the law, this legal pluralism was sometimes a source of anxiety owing to its potential misuse.
As early as the ninth century, jurists realized that while disagreements may result from valid hermeneutic engagement with the sources, the laity were prone to manipulate them to achieve worldly gains.17 This tension led to a spectrum of views on how the community should manage these disagreements.Unlike the proponents of legal certitude (e.g. the early Mu'tazilis of Baghdad), both the fallibilists and the infallibilists accommodated legal pluralism, though the scope depended on the different orientations within these positions. The infallibilists’ position offered the strongest justification of legal pluralism, while fallibilist scholars such as Ibn Taymiyya allowed for narrower areas of probability and therefore fewer acceptable cases of legal pluralism. Like Ibn Taymiyya, earlier traditionalists such as Ibn Hanbal had an aversion to juristic disagreements not only on account of their source: whimsical non-textual ‘opinion’, but also owing to the profane functions that they could serve.18 Juristic disagreements, in their estimation, were used by both jurists and the laity to circumvent the divine law when people picked and chose different doctrines that fit their whims. According to them, this was a sign of corruption, a pragmatism that is unbecoming of the divine law.
Certainly, al-Shafi'is’ infallibilism does not necessarily entail the permission of the laity’s picking and choosing of juristic views pragmatically, yet it is a precondition for the acceptance of legal pluralism and its concomitant pragmatic functions. By contrast, the view that completely rejects probability in legal matters, attributed to early Mu'ta- zilis such as Bishr al-Marisi and al-Asamm, forecloses such pluralism and eclecticism.
Although infallibilism and certain versions of fallibilism may act as prerequisites for the acceptance of pragmatic forum selection (i.e., choosing between different schools), the question of whether Muslims could pick and choose from the range of juristic disagreements a view that suits their secular needs offers no clear-cut correspondence to a jurist’s position on the question of the multiplicity or unity of truth. An infallibilist like al- Ghazali (d. 505/1111) did not allow pragmatic eclecticism,19 even though his position that there are multiple truths lends itself readily to permitting the laity to pick and choose pragmatically.Another position that is conducive to the permission of pragmatic eclecticism is the falli- bilist position that there is only one truth that cannot be known with certainty and that the realm of unknowability corresponds to actual legal disagreements in the Sunni schools. All the supporters of pragmatic eclecticism came from these two camps, while most opponents came from the fallibilist position that narrowed the scope of unknowability and viewed most cases of legal disagreements negatively. Those who were minimalist in defining the scope of unknowability discouraged people from choosing opinions based on what suits their needs, obligating all jurists, and sometimes even the laity, to exercise ‘preponderance’ (tarjTh) in juristic disagreements to weed out the ‘wrong’ views. Despite these patterns, the utilization of legal pluralism to accommodate profane social needs through forum selection does not map perfectly onto the fallibilist—infallibilist distinction.
During the time of al-Shafi'i, and despite his arguably infallibilist position, he, along with his contemporaries, was opposed to the laity’s pragmatic choices of forum. However, the evidence points to the practice of pragmatic eclecticism as early as the ninth century from the polemical discourse of traditionalists who described such pragmatism as a sign of sin or even disbelief.
Thus, the utilization of regional differences in the seventh to the ninth centuries between Medina, Kufa, Basra, Damascus and Fustat to achieve pragmatic objectives was soundly rejected by jurists with no minority position that one can reconstruct from the available sources. We can call this position the formalist approach, as it relies on the process of formal reasoning to weigh different juristic views against one another (tarjTh),20 using legal hermeneutics to determine which rule is the best articulation of the divine will. These formalists accepted disagreements on points of law in varying degrees, so long as they resulted from following the proper rules of legal hermeneutics. According to these formalists, choices could only be driven by methodological, hermeneutic considerations, rather than a focus on the legal result. In a word, the formalists emphasized the process of hermeneutic engagement itself regardless of the resulting disagreements, so long as the choice is not driven by a pragmatic, result-based approach.The competing position was a pragmatic approach21 that was concerned not with the process of formal reasoning but with the legal result itself. In the formative period of Islamic law, the formalist approach dominated in juristic discourse, albeit not in practice as the polemics themselves suggest. It was not until the 13th century that the dominant juristic discourse shifted to the pragmatic approach, partly to justify existing court practices.22 Having discussed the causes and functions of juristic disagreements, in what follows I examine some examples of how these theoretical approaches (drawn from tomes of legal theory) played out in manuals of comparative law and in actual court practice.