Introduction
The term used to describe legal pluralism in the primary sources of Islamic law is ikhtilaf which means ‘disagreement’ and usually refers to disagreements among jurists over points of substantive law.
In Twelver Shi'ism, juristic disagreements are permitted in the absence of the Imam, when religious authorities may legitimately hold different positions on points of law. In Sunni Islamic law, the majority ofjurists came to accept legal disagreements (with a few exceptions, as we shall see below) as an expression and manifestation of legal pluralism, so long as the doctrine in question is not one over which scholars agreed at any given time, constituting ‘consensus’ (ijmd‘), a source of Sunni Islamic law, albeit not in Twelver Shi'ism, the second largest Islamic sect. Consensus assumes that once a given generation unanimously agrees on a legal doctrine, this consensus forecloses future hermeneutic freedom to re-interpret the sources. Yet despite the dominance of the doctrine of consensus, pluralism was still maintained in some cases through hermeneutic manoeuvres or simply because some, albeit few, jurists did not accept the validity of consensus as a source of law. Consensus was one way to create unity out of legal hermeneutic and historical circumstances so flexible and diffused as to allow for unlimited legal pluralism in theory.In this chapter, I focus on Sunni Islamic legal pluralism, a phenomenon that resulted at least partly from the history of Islam and the relationship between jurists and the state. In the early Islamic period, a tension existed between the state and jurists due to the trauma of the early Muslim civil wars in 656—661 and 680—692, which led to the accession to power of rulers who were considered illegitimate or at least impious by many scholars. In the Sunni Islamic imaginary, the Umayyad dynasty did not live up to the heritage of the Prophet (d.
632) or his first four successors, when temporal and religious authority was less clearly bifurcated. As early as the eighth and ninth centuries under the Abbasids, there was hostility among many scholars to state intervention in matters of law and theology, as evidenced by the jurists’ position on Abbasid attempts to centralize Islamic law and remove legal pluralism, as well as on the Qur’an Inquisition of 833-848.1 The trauma of the Inquisition in the collective Islamic imaginary and the failure of the Abbasid state to impose one theological doctrine in a manner similar to Byzantine interventions in Christological debates would make it hard for future Islamic states to make claims to theological or legal orthodoxy. These events would help give rise to a unique theory on the relationship between the state and religious scholars in Sunni Islam.During the 11th and 12th centuries, the relationship between state and scholars would incrementally grow into a systematic theory proffering a division of labour, whereby the state was able to legislate in limited domains that did not in theory contradict the jurisprudence of the jurists, but it was the state that enforced the law of the jurists, from whence it derived its own legitimacy.2 Certainly legal pluralism (a function ofjuristic disagreement) pre-dated the emergence of this theory. What this theory did was enable the legal pluralism that existed as early as the second half of the seventh century — only decades after the early Islamic conquests of the 630s in the Near East and long before the articulation of the theory of Islamic governance — to exist without sweeping state intervention. It thus fell upon jurists to determine the content of Islamic law. Absent a rigid, clerical hierarchy that could impose one uniform code across pre-modern Muslim societies, jurists balanced the requirements ofjustice and legal predictability with the epistemic nature of Islamic legal authority, historically drawn from the individual jurist’s personal hermeneutic engagement with the sources, known as ijtihad.
This unique politico-legal context gave rise to potentially unlimited legal pluralism and uncertainty. Aware of the impracticability of extreme legal pluralism, and as a result of the florescence of Islamic jurisprudence, jurists gradually limited interpretive freedom (ijtihad) over the course of the 11th to the 13th centuries by arguing for the dearth of legal skills and scholars capable of wide interpretive freedom.3 Despite the jurists’ efforts to rein in legal pluralism through the limits they placed on ijtihad, Sunni Islamic law retained much of its pluralism in the four extant schools, in addition to intra-school doctrinal pluralism.
This article addresses legal pluralism in Sunni Islamic law by exploring its causes as understood by both modern Western historians and pre-modern Islamic sources, the debates about the validity of juristic disagreements among legal theorists, and disagreements over the utilization of legal pluralism to achieve social and economic objectives. In addition to a discussion ofjuristic disagreements in legal theory, I also address the different approaches to juristic disagreements in substantive legal manuals, a topic that is intimately related to the legal theoretical debate about the validity ofjuristic disagreements and the ontology of truth. After examining the causes of juristic disagreements and whether or not they are justified from the standpoint of the ontology of truth, I discuss the utilization of legal pluralism in pre-modern Islamic courts.
Before we discuss the causes of legal pluralism, a word about the terms I use to refer to legal plurality is in order. Legal pluralism suggests the equal validity of different laws that are applicable in the same geographical space, whereas juristic disagreements do not necessarily assume an equal normative weight to such disagreements. In other words, juristic disagreements could either be rejected as non-normative, simply non-legal or such disagreements could be accepted as equally valid articulations of the law. What I argue in this essay is that juristic disagreements were debated and conceptualized by the majority of pre-modern Muslim jurists as equally valid articulations of the law (in the sense of legal pluralism) since there was no central authority to pronounce one view as the law and reject all others. Differently put, juristic disagreements were translated through epistemological debates into a strong ethos of legal pluralism, as we shall see below, rendering the two terms synonymous when describing the views of the majority of Sunni jurists. Only a small minority ofjurists rejected legal pluralism outright, but as we shall see below, this position died out early on in Islamic legal theory.