The sacred andprofane in Islamic law

The relationship between the sacred and profane was negotiated in Islamic law through the ongoing historical dynamics demarcating the boundaries between Shari 'ah and fiqh. But be­yond this, there were several other conceptual categories and functional mechanisms through which sacred and temporal spaces were negotiated in Islamic law.

Beyond this clear categorical division, negotiating the extent to which a particular human act or conduct, whether it be public or private, primarily involved 'ibdddt or mu 'dmaldt, was not a simple and unequivocal issue. For instance, there were lengthy debates as to whether the prohibition of zina (fornication or adultery) or the consumption of alcoholic substances would fall under the category of 'ibdddt or mu 'dmaldt, or alternatively, some mixture of both categories. Nevertheless, as in the case of the debates regarding the parameters of Shari 'ah and fiqh, although in principle there was a philosophical recognition that the spaces occupied by the sacred and profane required different treatments, in reality, it was the juristic method that played the defining role in determining the function of text, precedent and rational innovation in the treatment of legal questions. It was not the legal presumptions attaching to either category but the institutional and methodological processes of each legal school of thought that most influenced the way issues were analysed and determined. It was the delib­erative ability to demonstrate a commitment to a consistent interpretive methodology that determined legitimacy and validity within each school of thought.⁴⁴

Importantly, a prominent jurist such as Abu Hamid al-Ghazali insisted that the entire discipline offiqh is but a temporal discipline. Al-Ghazali argues that the very role of a faqdh (jurist) is to resolve and negotiate conflicts among disputants who fight over material earthly things.Just because a jurist competent in resolving and adjudicating earthly dis­putes does not mean that such a jurist is knowledgeable about the affairs of the Hereafter.⁴⁵ Moreover, al-Ghazali explains that jurists (fuqaha) are experts in temporal things, but they are not necessarily experts in spiritual matters. Therefore, it is critical to distinguish these jurists from scholars who specialize in piety and spiritual matters (fuqaha al-zahir versus ‘ulama al-akhira).⁴⁶ The thrust of al-Ghazali’s argument is that competence over the delib­erative and reasoned methods of law does necessarily imply competence in spiritual matters of personal piety.

It is in the historical practice of the guilds of law, and especially on questions of pro­cedure, jurisdiction, conflict of laws and the compulsory powers of courts, that one finds the most pronounced negotiations of the space and balance between the sacred and pro­fane. For instance, throughout Islamic history, courts rarely took jurisdiction of matters involving 'ibdddt, such as the performance of prayers.⁴⁷ In a rather large genre of literature dealing with the laws of adjudication (ahkdm al-qada ), administrative and executive laws (ahkdm al-hisba and al-siydsa al-shariyya), and the functions of the muhtasib, who in classical practice were usually market inspectors, Muslim jurists differentiated between judicial and executive functions.⁴⁸ Related and overlapping discussions are also found in treatises deal­ing with the private and public normative obligation to enjoin the good and resist what is wrong (al-amr bi-l-maruf wa-l-nahy 'an al-munkar). In this literature and in the actual histor­ical practice, courts did not take jurisdiction of a matter unless there was an actual or real conflict. Courts had the duty to issue ahkdm (judgments) and notfatdwa (responsa). At the same time, the authority and discretion of the executive to dispense summary justice or deal out summary penalties was restricted.⁴⁹ Among other limitations, in any particular case, if either the law or the facts were disputed, the matter had to be referred to the judiciary. Only the judiciary had the legitimate power to interpret the law and establish the facts in any dispute. Interestingly, although varying according to time and place, it was not unusual for litigants to appoint a wakdl (agent or lawyer) to argue on their behalf in civil cases, and it was common for litigants to solicit and obtain a fatwa in support from respected jurists, and judges considered such conflicting responsa as advisory or persuasive in authority.

Perhaps as a practical result of the epistemology of plural orthodoxy, in Islamic jurispru­dence, a court’s judgment or finding was not equated with or considered the same as God’s judgment. At a normative level, a court’s judgment could not right a wrong or wrong a right, and it could not negate or replace the duties and responsibilities imposed by an in­dividual’s conscience.⁵⁰ Jurists argued that individuals do have an obligation to obey court decisions as a matter of law and order, but judicial determinations do not reflect or mirror God’s judgment.⁵¹ A classic example would be of a litigant who, for instance, follows the Hanafi school of thought, and who is forced to submit to the jurisdiction of a Shafi'i court. The Hanafi litigant would have to obey the judgment of the court, not because it is correct, but because a duly constituted court possesses legitimate positive authority (sultat al-ilzam). Not surprisingly, the proper balance between the duty of obedience to the public order and the duty to follow one’s conscience, or school of thought, has been the subject of consider­able jurisprudential debates.⁵² It was argued that at times, it becomes incumbent to disobey a lawful judgment or command, even if this might mean having to suffer negative repercus­sions. Typically, this involved situations where a person conscientiously believed that harm or injury would be done to innocent parties, or scenarios implicating personal virtue or honour, such as marital status. In the classical juristic tradition, there are situations where the state, acting through a judge, could rightfully punish disobedience to its commands, and yet an individual would have an obligation to disobey the state’s commands.

Because of the reality of pluralist legal orthodoxy, in Islamic jurisprudence it is entirely conceivable, even where Shari 'ah is the law of the land, that an individual legitimately would feel torn between his duties towards the public order and God. The legitimacy of the state and even the law were not absolute — both state and law performed a functional but necessary role.⁵³ Beyond the fact that the state could not act as a proxy for God, legal determinations could not void the necessary role of personal beliefs or individual conscience because they did not replace the sovereignty of Divine judgments. Importantly, the space for individual conscience was not simply a product of legal pluralism. It is not only the diversity of legal opinions that allowed for a duality between the rule of law and rule of conscience, but the very nature of Islamic law. On many issues, the rule of law or the way a litigant would be treated by the legal system would not mirror how God would adjudge a matter in the Hereaf­ter. Put differently, an act could be a sin before God, but this does not necessarily entail legal liability in this world; similarly, legal liability does not necessarily mean that an act is sinful. Sin and legal liability overlap, but in many situations, are not identical.⁵⁴

A significant by-product of the institutions of legal pluralism was the rather fascinating, but little understood, practice of multiple territorially overlapping legal jurisdictions. There were many historical examples of governments establishing as many as four court judicial jurisdictions, each following a different madhhab, with a challengingly complex set of con­flict of laws rules regulating subject matter and en persona jurisdiction.⁵⁵ Normally, however, the predominant madhhab affiliation of the population of a region would play a determina­tive role on the madhhab followed by a court. Furthermore, frequently, there was a senior or chief judge settling issues of adjudicatory law within each madhhab. In addition, a common practice was to appoint a supreme chief judge who enjoyed ultimate appellate authority, as far as the positive law was concerned, over all the judicial jurisdictions. Although the research in this field is poorly developed, there is considerable evidence that the supreme chief judge, although personally belonging to a particular madhhab, in his official function, sought to resolve conflict among the jurisdictions through a synchronistic or conciliatory methodology known as al-tawfiq bayn al-madhahib (resolving and balancing between the differences among the schools of legal thought), which was a well-developed jurisprudential field and specialty.