‘Justice’ is an incredibly difficult word to define, not least because the term means different things to different people.
One person’s justice might be another’s oppression, and justice seems to shift meaning whenever one either gains or loses power. This is now a widely accepted truth, and political philosophers have busied themselves not so much with the question of whether there are multiple conceptions of justice, but with what informs those different conceptions.1
We should therefore expect that diverse Muslim groups throughout history defined justice in multiple ways.
This is no doubt true, and yet Islamic legal justice is regularly depicted — both in popular rhetoric and in scholarship on the subject — as working in only one of two ways. The first has to do with submission, and according to this presumption Islamic justice is achieved only when Muslims submit to an ancient law developed by elite, male scholars. The ancient law that they promulgated contains an exclusive standard of justice, making all other systems of law illegitimate and, by definition, unjust. In this framework, Muslims work toward justice when they follow the law as outlined by pious Muslim predecessors, and they work toward injustice when they either disobey or misinterpret it.2The second way that Islamic legal justice is presumed to work has to do with critique. In this presumption, ‘justice’ is a Divine measuring stick according to which Islamic laws are judged. God, in this way of thinking, is just and demands
1 Drucilla Cornell, At the Heart of Freedom: Feminism, Sex, and Equality (Princeton: Princeton University Press, 1998); Alasdair MacIntyre, Whose Justice? Which Rationality (Notre Dame, IN: University of Notre Dame Press, 1988); John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1998); Amrtya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009); and many, many more.
2 See for example, M. Cherif Bassiouni, The SharTa and Islamic Criminal Justice in Time of War and Peace (Cambridge: Cambridge University Press, 2014); Harry Dammer and Jay Albanese, Comparative Criminal Justice Systems (Belmont, CA: Wadsworth, 2014), 58 - 62; Hisham Ramadan, ed., Understanding Islamic Law: From Classical to Contemporary (Lanham, MD: AltaMira, 2006); Joseph Schacht, ‘Law and Justice in Islam’, in The Cambridge History of Islam, volume 2B: Islamic Society and Civilization, ed.
P. M. Hold, Ann Lambton and Bernard Lewis (Cambridge: Cambridge University Press, 2008).The author would like to thank the Stanford Humanities Center for the time and resources to complete this article, and Dr. Ayesha S. Chaudhry for her invaluable feedback. justice, and Islamic law is simply a way of realizing that justice on Earth. Thus, Islamic law is only legitimate when it serves the cause of justice, and it is illegitimate when it subverts justice. Historical Islamic laws are therefore always subject to critique, and when they no longer function in a way that leads to a just society, they should be considered un-Islamic and replaced with new, more just laws.[25] Justice, in this second conception, determines what is or is not Islamic law, not the other way around.
In the first way of thinking about Islamic justice, having to do with submission, Islamic laws are historical artifacts that are inherently just, and they are presumed to remain just in perpetuity. In the second way of thinking about Islamic justice, having to do with critique, Islamic laws are only Islamic insofar as they are able to provide justice. Though they may appear to be polar opposites, these two modern conceptions of Islamic justice are in fact flip sides of the same coin, both fraught with Orientalist tropes, both relying on two fundamental, unproved assumptions about Islamic law.
The first assumption is that Islamic law is supposed to manifest and represent Divine justice on Earth. The law, whether comprised of static historical legal opinions or principles that provide critique, is always presumed to reflect the divine; thus, following the law and/or its principles will lead individuals and society to godliness. The second assumption is that Islamic law is primarily metaphysical. That is, it is assumed that following Islamic law will bring metaphysical benefits, especially salvation and God’s favour. This casts Islamic law as primarily salvific, operating on a different level than, say, Danish law or Canadian law.
The reader might think that these two assumptions are fair and should be given; that Islamic law necessarily has a metaphysical element in a way that Danish and Canadian law do not, and as such represents the divine on Earth. This, many believe, is simply how religions and religious laws work. Religion is often thought to be a highly theological enterprise, and religious activity is thought to always be a statement about God. God presumably sent religion as a moral code, and following this moral code will place people upon justice. Whether that code is found in historical laws or in a standard of critique, the law is always presumed to lead to Divine Justice. Therefore, all religious activity must be conducted according to religious laws if justice is to be served in this world and the next. In this way of thinking, obeying religious laws will lead to justice in this life and felicity in the next, and ignoring the law will lead to perdition in this life and damnation in the next.
This is the way that religious laws tend to be presented, and that is doubly true with respect to Muslims and Islamic law. Muslims are presumed to hold Islamic law to be of great importance, and to demand that Islamic law be established in all areas of life. One way of obeying that law would be to slavishly adhere to its contents. Another way would be to critique historical laws based on rigorous religious principles and adapt them to changing circumstances. Either way, Muslims are thought to be obsessed with the law as key to worldly justice and otherworldly salvation, with some scholars of Islam going so far as to say that Islamic law is ‘the very corn and kernel of Islam itself.’4
While this is one way to conceive of Islam, Islamic law, justice, and Muslim practice, it is certainly not the only way, or even the most popular one. Muslims throughout history have had many and varied conceptions of Islamic law’s role in the world, its relationship to justice, and its importance to religious practice.5 For some Muslims, law is an integral part of religion; for others it is entirely unnecessary.
Some Muslims see their religion as merely an identity-marker, whereas for others religion informs everything that they do. Some Muslims have a tenuous relationship with law yet consider themselves good Muslims; other Muslims try to follow the law to the letter yet consider themselves bad Muslims. There are wide varieties of Muslim religious experiences and conceptions of Islamic law, and taking each of them seriously will challenge the way we think about Islamic legal justice.Given the diversity of Muslim religious experiences, it should be no surprise that Muslim scholars throughout history put forward many different ideas about Islamic law’s relationship to justice. Some argued that, indeed, Islamic legal justice is found either in submission or critique, but there is a large and illustrious history of Muslim legal thought that cannot be reduced to either of those two approaches to law. There is, for example, a long line of Sufi saints who held that
A Joseph Schacht, Islam (Oxford: Oxford University Press, 1974), 392. See also Gotthelf Bergstrasser, Grundzuge des islamischen Rechts (Leipzig: De Gruyter, 1935), 1.
5 See for instance Iza Hussin, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago: University of Chicago Press, 2016), 7ff; Scott Kugle, ‘Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia’, Modern Asian Studies 35, no. 2 (2001); Judith Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998), 181 ff. To see how recent scholarship has re-conceived Muslim relationships to law, see Rumee Ahmed, ‘Theology and Islamic Law’, in The Oxford Handbook of Islamic Law, ed. A. Emon and R. Ahmed (Oxford: Oxford University Press, 2017). laws could provide justice, but only up to a limit. After that limit, laws are no longer helpful, and a deeper knowledge must guide a learned person, or else laws will result in injustice.[26] Laws themselves, in this conception, are neither just nor unjust; rather, they are only relatively just based on the spiritual state of the practitioner, and thus are always suspect and only partially helpful in achieving both worldly justice and salvation.
This kind of nuanced relationship to law and justice is not confined to Sufis or mystical practice. There is a long history of non-Sufi jurists who held that the law is not a just moral code at all, and that following Islamic law does not lead to salvation. In this paper, I will discuss one such group of scholars, the early Hanafi school of Islamic law, which promoted a notion of Islamic legal justice that is different from the ones to which we are used. For these Muslim jurists, Islamic law does not have a metaphysical component, and though early Hanafis thought laws to be important, they did not think them central to salvation. Importantly, while early Hanafis believed that individual laws might be more or less just depending on circumstance, they did not believe that justice itself was to be found in laws. Thus, neither following the laws slavishly nor adapting them to changing mores would result in justice in this world nor felicity in the life hereafter. Understanding how and why will require closer study, and will give us new insights into how broadly justice can be conceived with respect to Islamic law.