Nature and purpose of Islamic law
The word Shari 'ah is derived from the word shar‘, which means, among other things, a way or method. Variants of the word Shari 'ah are mentioned in the Qur'an in a number of instances, among them the following.
The expression, shara 'a lakum, meaning decreed upon you or for you, occurs in a verse that states, ‘God has decreed upon you the same commandment that God has given Noah, and what We have revealed to you is what We had enjoined upon Abraham and Moses and Jesus’ (Qur'an 42:13). Elsewhere, the Qur'an uses the expression shir 'atan wa-minhajd, which means a path and a way (law) in a verse stating,We sent to you the scripture with truth, confirming the scriptures that came before it, and with final authority over them: so judge between them according to what God has sent down. And do not follow their whims so that you may deviate from the truth that has been sent to you. We have assigned a path and way (shir'tan wa-minhajd). If God would have willed God would have made but a single nation... but compete in good deeds. (Qur'an 5:48)
The word Shari 'ah occurs in the context of the expression, shard 'atin min al-amr, which is usually translated as sure path or mandated path. ‘Now We have set you on a sure path (shard 'atin min al-amr) so follow it, and do not follow the whims of those without knowledge’ (Qur'an 45:18). The various ways that the word Shari 'ah is employed in the Qur'an give the connotation of a path to truth, moral law, or perhaps a method that leads to the truth. Linguistically, Shari 'ah could mean a pasture, a water spring, or a path of goodness. Shaheen Sardar Ali correctly notes that, in essence, Shari 'ah means a flowing stream that brings nourishment, flourishing and life.15 In many ways, the word Shari 'ah is well represented by the term nomos or an applied way of life.16
As an essential point of departure, it is important to underscore that in classical jurisprudential theory, the ultimate point of Shari 'ah is to serve the well-being or achieve the welfare of people (tahqdq masdlih al- 'ibdd).17 The objective of Shari 'ah is not necessarily compliance with the commands of God for their own sake, rather such compliance is a means to an end, which is the serving of the physical and spiritual welfare and well-being of people.
Some classical jurists contended that Shari 'ah is but a means to moral virtues (fadila)™ Ibn Rushd (d. 595/1198), for instance, asserted that Shari 'ah is but a means to achieving and promoting particular virtuous norms including spiritual purity ('iffa), equity ( 'adl), courage (al-shaji 'a), and generosity (al-sakhi’). Shari 'ah regulation of social norms is founded upon the obligation to do good and avoid evil (al-amr bi-l-ma'ruf wa-l-nahy 'an al-munkar).19 Ibn Qayyim al-Jawziyya (d. 751/1350—1) contended that:Shari 'ah is founded and structured upon wisdom and people’s welfare in this world and the Hereafter. In its entirety, it is justice, mercy, and wisdom, and so any ruling that exceeds justice to injustice, mercy to its opposite, welfare to harm, or wisdom to nonsense cannot be considered a part of Shari 'ah, even if it was introduced into it through (faulty) interpretation.20
Of course, statements such as those above only beg the question of whether Shari 'ah is best understood as a teleological project, or more appropriately, in terms of an empirical or morally neutral approach. The famous Mu'tazili Shafi'i jurist al-Qadi 'Abd al-Jabbar (d. 415/1025) and other Mu'tazili, i.e. rationalist, scholars argued for an objective understanding of justice and morality. Rationalist jurists embraced what became known as the ‘correlation principle’ (ittifaq al-Shari 'ah wa-l-' aql) between revelation and reason by which they believed that God, the Lawgiver, legislates according to the dictates of reason. Actions are intrinsically good or bad (hasan or qabih) and are objectively so, and the Lawgiver has committed Himself to legislate according to objective dictates of justice and morality. Some rationalists argued that although good and bad are objectively knowable, human beings are obligated to do good and abstain from doing bad only because God commanded us to do so. Things and actions are intrinsically and objectively good or bad, but they are not normatively so.
The actual normative obligation or duty (taklif) is derived only from God’s command.One can say that there is a natural law tradition soundly anchored in the classical Shari ah tradition. But it would be difficult to describe Shari 'ah in purely natural law terms. As discussed below, a number of Muslim jurists advocated that the demands of Shari 'ah be understood in teleological terms — that Shari 'ah be interpreted in light of certain moral objectives. However, in terms of the development of Shari 'ah as a socio-historical and institutional practice, reason was not used independently from the revealed text. For the most part, Muslim jurists did not justify Shari 'ah in purely abstract philosophical terms. Rather, they anchored their authority in the claim of Divine legislative supremacy, and employed reason in the service of Shari 'ah. The classical jurists did not use reason in lieu of or independently from the revealed text. They did, however, use reason to deduce canons of interpretation, develop presumptions of law, and navigate the Divine legislative Will in the context of promoting perceived public interests, or even to create equity-based exceptions to the law.21 For the most part, because Muslim jurists functioned within the parameters of a living legal system, they did not feel free to pursue the logic of unfettered philosophical reasoning. Instead, they used reason to negotiate the dynamics of legal interpretation towards the achievement of particular ethical or social policy goals. Reason was utilized in a systematic effort to thread the needle of law through the mechanics of practical adjudications often in the pursuit of particular social policies or moral goals.22 In this sense, Shari 'ah was often seen as the nomos (or in Arabic namus) or the correct path to happiness in this world and the Hereafter (tariq al-sa 'ida fi al-dunya wa-l-’akhira) — as a way of life discoverable through the application of practical reasoning and deliberative practice.
Classical Muslim jurists reasoned that if law will be made to serve the well-being of people, while at the same time avoiding the pitfalls of the tyranny of human whim or unfettered reason, Divine guidance or direction is necessary and indispensable.
Muslim jurists reasoned that God communicates God’s Way or Path (the Shari ‘ah) through indicators or evidence pointing towards the Divine Will, known as the daldl (pl. adilla). The daldl means the indicator, mark, guide or evidence. In Islamic legal theory, it is a fundamental building block of the search for the Divine Will and guidance. As a sign of God’s mercy and compassion, God created or enunciated numerous indicators serving as guidance to human goodness, well-being (al-hasan wa-l-ma‘ruf), and ultimately, the Divine Will. Moreover, God ordained that human beings exert a persistent effort in investigating the Divine indicators, or the evidence of God’s Will (badhl al-juhd ft talab al-daldl) so that the objectives of Shari ‘ah may be fulfilled. Not surprisingly, the nature of the daltl became one of the formidable and formative debates of early Islamic jurisprudence. The most obvious type of indicator is an authoritative text (sing. nass Shar‘d or pl. al-nusus al-Shar‘iyya), such as the Qur'an, but Muslim jurists also recognized that God’s wisdom is manifested through a vast matrix of indicators found in God’s physical and metaphysical creation. Hence, other than texts, God’s signs or indicators could manifest themselves through reason and rationality ( ‘aql and ra'y), intuition (fitra), and human custom and practice (‘urf and ‘ada). Functionally, ‘aql or reason meant necessary rational relationships inherent in the laws of creation or nature. Recognition of these rational relationships was very often infused with principles of natural justice. So, for instance, ‘aql included the principle that the law must premise itself on the natural laws of physical causation; the principle that whoever causes damage incurs an obligation to compensate or make whole (wajib al-damdn); the presumption of innocence, and also the presumption that one is free from obligation or duty unless there is just cause or evidence of incurring a duty or liability (al-bard'ah al-asliyyah); the principle that harm or suffering must be removed or alleviated (al-darar yuzdl); or the interpretive principle that certainty cannot be rebutted by speculation or suspicion (al-yaqdn la yuzdl bi-l-shak). These among many others were considered foundational principles of law based in reason and natural justice. Similarly, what counted as fitra or proper intuition was multi-layered and a rather complicated issue.23 Especially in early Islam, which of these could legitimately be counted as avenues to God’s Will and to what extent, were hotly debated issues. Especially with the increasing consolidation of the legal system after the tenth century, both Sunni and Shi'i jurists argued that most indicators are divided into rational proofs (daltl ‘aqlt) and textual proofs (daltl nasst). As to rational proofs, jurisprudential theory further differentiated between pure reason, and practical or applied reason. Foundational legal principles and legal presumptions, such as the presumption of innocence or the presumption of permissibility (al-bard'a al-asliyya); the presumption of continuity (istishdb al-hdl); and the duty to apply caution if there is reason to believe a right will be violated (wajib al-ihtiydt) are derived from pure reason infused with principles of natural justice.In Islamic jurisprudential theory, the diversity and complexity of the Divine indicators are considered part of the functionality and suitability of Islamic law for all times and places. The fact that the indicators are not typically precise, deterministic or uni-dimensional allows jurists to read the indicators in light of the demands of time and place. So, for example, it is often noted that one of the founding fathers of Islamic jurisprudence, al-Shafi'i (d. 204/820) had one set of legal opinions that he thought properly applied in Iraq, but changed his positions and rulings when he moved to Egypt to account for the changed circumstances and social differences between the two regions.24 The same idea is embodied by the Islamic legal maxim: ‘It may not be denied that laws will change with the change of circumstances (la yunkar taghayyur al-ahkdm bi-taghayyur al-zamdn wa-l-ahwal).’25
One of the most important aspects of the epistemological paradigm upon which Islamic jurisprudence was built was the presumption that on most matters, the Divine Will is unattainable, and even if attainable, no person or institution has the authority to claim certitude in realizing this Will.
This is why the classical jurists rarely spoke in terms of legal certainties (yaqTn and qat j. Rather, as is apparent in the linguistic practices of the classical juristic culture, Muslim jurists for the most part spoke in terms of probabilities, or in terms of the preponderance of evidence and belief (ghalabat al-zann). As the influential classical jurist al-Juwayni stated:The most a mujtahid would claim was a preponderance of belief (ghalabal al-zann) and the balancing of the evidence. However, certainty was never claimed by any of them (the early jurists)... If we were charged with finding [the truth] we would not have been forgiven for failing to find it.26
Muslim jurists emphasized that only God possesses perfect knowledge — human knowledge in legal matters is tentative or even speculative; it must rely on the weighing of competing factors and the assertion ofjudgement based on an assessment of the balance of evidence on any given matter. So, for example, Muslim jurists developed a rigorous field of analytical jurisprudence known as larjTh, which dealt with the methodological principles according to which jurists would investigate, assign relative weight, and balance conflicting evidence in order to reach a preponderance of belief about potentially correct determinations.27
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