The sources of Islamic law

The critical issue in early Islamic jurisprudence was not the struggle over what role the text ought to play, but more substantially, over the methodologies by which the legal system could differentiate between determinations based on whim or a state of lawlessness (hukm al- hawa), and determinations based on legitimate indicators of the Divine Will (hukm al-shar).

Recognizing the principal of legislative supremacy, the classical jurists insisted that Shariah law is anchored on the twin pillars of the Qur'an and Sunnah. However, it is important to distinguish the formal sources of law in the Islamic legal tradition from practical sources of law. Formal sources of law are an ideological construct — they are the ultimate foundations invoked by jurists and judges as the basis of legal legitimacy and authority. The practical sources, however, are the actual premises and processes utilized in legal practice in the process of producing positive rules and commandments. In theory, the foundations of all law in Islamic jurisprudence are the following: the Qur'an, the Sunnah (the tradition of the Prophet Muhammad and his companions), qiyTs (analogical reasoning), and ’ijma' (consensus or the overall agreement of Muslim jurists). In contrast to mainstream Sunni Islam, Shi' i jurisprudence, as well as a minority of Sunni jurists in the particular classical orientations, recognizes reason (instead of qiyTs) as a foundational source of law. These four are legitimating sources, but the practical sources of law include an array of conceptual tools that greatly expand the venues of the legal determination. For instance, practical sources include a broad array of interpretive and adjudicative canons including legal presumptions, such as the presumption of continuity (istishab) and the imperative of following precedents (taqlTd); legal rationalizations for breaking with precedent and de novo determinations (ijtihTd); application of customary practices ('urf and Tda); judgements in equity, equitable relief and necessity (istislah, hajah, darTTra, etc.); and in some cases, the pursuit or the protection ofpublic interests or public policies (masTlih mursala and sadd al-dharT'i' wa-l-mafTsid).

These and other practical jurisprudential sources were not employed as legal tropes in a lawless application of so-called qadi justice. In fact, sophisticated conceptual frameworks were developed to regulate the application of the various jurisprudential tools employed in the process of legal determination. These conceptual frameworks were not only intended to distinguish legitimate and authoritative uses of legal tools, but collectively, they were designed to bolster accountability, predictability, and the principle of legality and the rule of law.

Being the ultimate sources of legitimacy, the formal sources of law do not play solely a symbolic role in Islamic jurisprudence. Many legal debates and determinations originated or were derived directly from the textual narrative of the Qur'an and Sunnah. Nevertheless, it would be erroneous to assume, as many fundamentalists tend to do, that Islamic law is a literalist explication or enunciation of the text of the Qur'an and Sunnah. Only very limited portions of the Qur'an can be said to contain specific positive legal commandments or prohibitions. Much of the Qur'anic discourse, however, does have compelling normative connotations that were extensively explored and debated in the classical juristic tradition. Muslim scholars developed an extensive literature on Qur'anic exegesis and legal hermeneutics as well as a body of work (known as ahkam al-Qur'an) exploring the ethical and legal implications of the Qur'anic discourse. Moreover, there is a classical tradition of disputations and debates on what is known as the ‘occasions of revelation’ (asbab al-nuzul), which deal with the context or circumstances that surrounded the revelation of particular Qur'anic verses or chapters, and on the critical issue of abrogation (naskh), or which Qur'anic prescriptions and commandments, if any, were nullified or voided during the time of the Prophet.

Similar issues relating to historical context, abrogation and hermeneutics are dealt with in the juristic treatment of the legacy of the Prophet and his companions and disciples.

However, in contrast to the juristic discourses on the Qur'an, there are extensive classical debates on the historicity or authenticity of the hadith (oral traditions attributed to the Prophet) and the Sunnah (historical narratives typically about the Prophet but also his companions). While Muslim jurists agreed that the authenticity of the Qur'an, as God’s revealed word, is beyond any doubt, classical jurists recognized that many of the traditions attributed to the Prophet were apocryphal. In this context, however, Muslims jurists did not just focus on whether a particular report was authentic or a fabrication, but on the extent or degree of reliability and the attendant legal consequences. Importantly, Muslim jurists distinguished between the reliability and normativity of traditions. Even if a tradition proved to be authentic, this did not necessarily mean that it would be normatively binding because most jurists differentiated between the Prophet’s sacred and temporal roles. The Prophet was understood as having performed a variety of roles in his lifetime, including that of the bearer and conveyer of the Divine message, a moral and ethical sage and instructor, a political leader, a military commander and soldier, an arbitrator and judge, a husband and a father, and a regular human being and member of society. Not everything the Prophet said or did in these various capacities and roles created normative obligations upon Muslims. The Prophet did not always act as a lawmaker or legislator, and part of the challenge for Muslim jurists was to ascertain when his statements and actions were intended to create a legal obligation or duty (taklf, and when they were not meant to have any normative weight. In some cases, Muslims are affirmatively prohibited from imitating the Prophet’s conduct because it is believed that in certain situations, the Prophet acted in his capacity as God’s messenger, a status that cannot be claimed by other human beings. Other than the normative implications of the Prophet’s sacred and temporal roles, a great number ofjuristic disputations focused on the practices and opinions of the Prophet’s family (ahl al-bayt), including his wives, and his companions and disciples (sahaba).

But while Sunni jurists tended to emphasize and exhibit deference to the four Caliphs who governed the nascent Islamic state after the death of the Prophet (known in the Sunni tradition as al-Rdshidun or the rightly guided), Shi'i jurists heavily relied on the teachings of the infallible imams, all ofwhom were the descendants of'Ali, the fourth Caliph and the Prophet’s cousin, and his wife Fatima, the Prophet’s daughter.

It is fair to say that the Qur’an and Sunnah are the two primary and formal sources of legitimacy in Islamic law. Quite aside from the question of whether most of Islamic law is derived from these two sources, the Qur’an and Sunnah play the foundational role in the processes of constructing legal legitimacy. This, however, begs the question as to why instrumentalities ofjurisprudence such as analogy or reason and consensus are typically listed among the four formal sources of Islamic law. The response, in part, is that the utilization of the concepts of qiyas (or aql) and ijma', not just as instrumentalities of law but as legitimating and foundational origins of law, was a necessary legal fiction. The emergence of this legal fiction in the first couple of centuries after the death of the Prophet took place after contentious, and at times, tumultuous jurisprudential debates. Ultimately, these concepts were intended to steer a middle course between the unfettered and unrestrained borrowing of local customary laws and practices into Islamic law, and on the other extreme, the tendency towards literalism and over-reliance on textualism as the basis of legitimacy in the process of legal development.

As legal instrumentalities, both the predominantly Sunni concept of qiyas and Shi'i 'aql utilize analogical reasoning to identify the critical issue in one legal ruling and then extend the same ruling to a new case. Jurists used carefully defined analytical skills in deducting the operative cause or ratio legis (the element that triggers the law into action; 'illa in Arabic) of a particular textual law or determination.

Confronted by an unprecedented or novel case, often for which there was no law on point, the jurist would extend the ruling in a previous case (asl) to the new case (far'), but only if both cases shared the same operative cause.²⁸ The derivation of the operative cause of a ruling (istikhraj ' illat al-hukm) was important not only because it had become the method by which the law was extended to cover new cases, but also because it became one of the primary instruments for legal systemization and also change. If the operative cause changes or no longer exists, the law, in turn, must change. The Islamic legal maxim, al- 'illa tadur ma 'a al-ma'lul wujudan wa- 'adaman, became substantially the same as the Latin maxim providing that the law is changed if the reason of the law is changed (mutata legis ratione mutatur et lex). In interpretation as well as adjudication, this helped generate a more systematic legal institution; it meant that cases involving substantially the same issues were decided similarly. This practice, in turn, led to the development of the presumption that precedent ought to be followed unless there is sufficient cause for exception or change (istishdb), which could be triggered by changed circumstances, equity, or a number of other legal justifications.

In a similar fashion, the concept of ijma ‘ (consensus) was utilized to create a more systematic and accountable legal system. The basic idea behind the doctrine of ijma' was that the agreement ofjurists on a particular point of law or that well-established legal doctrine ought to be binding. Nevertheless, beyond this fundamental idea, which was often invoked in an effort to consolidate and stabilize the legal system, there were numerous juristic debates as to a range of issues, such as whose consensus counts or matters; whether consensus is timebound, for instance by generation or another time contingency; whether the doctrine of consensus has a regional dimension and how; and last but not least, how to go about ascertaining that a consensus exists. As readily recognized by classical jurists, however, the claim of consensus was often polemically invoked by judges and jurists in the course of arguing that a particular issue was well settled in law, when indeed it was not, or alternatively, to resist pressure in favour of legal change.

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Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

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