What is Islamic law?

I now return to the question of what kind of law is Islamic law? As discussed earlier, some contemporary scholars suggest that Islamic law might not be law at all. But what does this mean? As I argued above, Islamic law is neither natural law nor a positivist legal system.

When we talk about the Islamic legal system, we are referring to a tradition of deliberative practice that is cumulative and continuous. This deliberative and cumulative interpretive practice forms a narrative community that shares a common linguistic practice, interpretive and expository methodologies, and instrumentalities of authority and legality. It is fair to say that all legal systems try to be authoritative and normative. But it is not the articulated commands, determinations, and specified rules that define Islamic law. The specified explicit rules pronounced by a legal system is not what defines this system. The positive commandments and rules are a by-product of the legal system, and not the legal system itself. This is why the articulated commandments and rules can be re-interpreted, altered, abrogated or replaced, and this does not re-define a legal system. This is why the specific determinations, commandments, or rules can be suspended, nullified, abrogated, or in other words, changed all the while the legal system remains the same. What counts is that the positive legal commandments are changed according to the rules of the game within the legal system. If the rules of law are changed whimsically or without following the interpretive dynamics established within a legal community, these amendments or changes will be seen as lacking authoritativeness, legitimacy, or in a word, legality.

It is not the hudud punishments or any other specific legal commandment that defines Islamic law. Any law could be changed and the legal system remains the same. However, for a law to change legitimately and authoritatively, the change must take place through the established interpretive and expository practices of the legal system, otherwise the change will fail to gain recognition and acceptance within the community of practitioners functioning within this legal system.

This, however, begs the question: If the positive commandments or rules do not define a legal system then what does?

Islamic law is founded on the Qur'an and Sunnah. It is accurate to say that the cumulative deliberative practices of the practitioners of Islamic law drew legitimacy and, to one extent or another, inspiration from the Qur'an and Sunnah. But it would not be accurate to say that Islamic law is derived from the Qur'an and Sunnah. Those who have studied the cumulative discourses, debates, contestations and disputations of Muslim jurists through the course of 1,400 years would readily recognize that the Qur'an and Sunnah play a legitimating role in the unfolding and articulations of the Islamic legal tradition. However, Islamic law is not simply derived or deducted from the Qur'an and Sunnah. As a legal tradition, Islamic law unfolded through the robust activity of legal specialists who established a process of continuous use, interpretation, exposition and expansion, and a technical linguistic practice that became the heart and soul of the legal system. The main instrumentality of the unfolding of the Islamic legal system was not legal deduction but reasoning through analogy and from likeness to likeness. This instrumentality would be very familiar to lawyers of the common law system: a similibus ad similia (from like to like), according to which jurists reason from one example to another and from one ratio legis to another. In theory, all the legal opinions emerge from the Qur'an and Sunnah, but in reality, these legal opinions are derived from perceived similarities and differences from one case to another.

What is critical to this process is that there is a continuous and cumulative practice and convention that is essentially discoursive by which jurists employ a linguistic practice to investigate, explore and deliberate upon the indicators of the Divine Will, and reason from one example to another. The indicators are investigated and deliberated in response to communal problems, inquiries, disputations and debates.

The concept of convention here is essential and what I mean by convention is a deliberative practice of applied reasoning. The convention at the heart of Islamic jurisprudence is not a philosophical project and it is not necessarily theoretically systematic. Islamic law is not about an ultimate moral vision, and also it is not about an ontological vision about the correct order of things in the universe. This is not because Muslim jurists did not care about justice or ethics, but because the craft of the lawyer is to work within the bounds of the authoritative, interpretive, incremental, and cumulative. Muslim jurists worked incrementally from one interpretive example to another in a disciplined, deliberative process of investigating textual and communal problems. To do otherwise — to anchor legal determinations on ontological moral goals or ultimate principles — would risk undermining the legitimacy and authority of the entire juristic enterprise. Of course, occasionally on exceptional issues involving pressing public policy or ethical problems, jurists could and did use instrumentalities such as istihsdn (equity) or istislah (breaking with on-point precedent) to achieve morally satisfactory results. But this was not done as a matter of convention or as a regular process because doing so would in due course undermine the integrity of the technical mechanics and legitimacy of the legal system.

Part of the essential function of law is to direct actions by providing normative guidance. However, law does not always succeed in guiding the behaviour of its subjects. Law attempts to provide authoritative directives to autonomous agents in the hope of obtaining their deference. When or how often a legal system succeeds in directing the behaviour of agents is pertinent to evaluating the relevance of law, but obtaining compliance with its directives does not define a legal system. Compliance is relevant to evaluating the effectiveness of a legal system, but not its nature.

Nevertheless, legal systems do attempt to provide normative guidance and obtain compliance and deference from a pertinent community. I am not arguing that legal systems are autonomous, or that jurists are disinterested in whether people obey the law. Jurists and the legal systems they represent are affected by sociological factors to the extent that their own legitimacy, prestige or material interests are impacted by the determinations they produce. However, in terms of their training and loyalty, jurists primarily work within their professional guilds and receive their most immediate feedback and incentives from fellow jurists who share their expertise and linguistic practice. This means that on most issues, jurists rely on the relationship of trust and deference they (the jurists) hope the legal system has built with its pertinent community, and that such a relationship will be sufficient to comply with the legal system’s normative commands.⁶²

This view of law is very different from the one espoused by the legal positivism ofJeremy Bentham, John Austin or Hans Kelsen. However, law is not about rules or the threat of the use of force — law is about a process of reasoning, linguistic use, exposition and authoritativeness.

Islamic law is quintessentially about the art of the faqlh (jurist) — until the birth of the faqih, there was no Islamic law and without the ‘science’ offiqh, Islamic law cannot exist. Islamic law is constituted of the consistent and continued use or practice of the discipline of deliberative reasoning with the purpose of investigating the Divine Will as it applies to the community of believers. Without the Divine Will, Islamic law is no longer Islamic. Without a presumed community of believers who care about what God wants from them, Islamic legal reasoning would no longer be about practical problems but would become purely abstract. But what defines Islamic law is not whether a community of believers exists — what does define Islamic law is the cumulative traditions of interpretation and reasoning, linguistic practices and disciplined deliberations about the Divine Will as it applies to creation and the community of believers.

What defines Islamic law is the convention consisting of numerous explorations, investigations, hypotheticals, debates and disputations about what God demands from the community of believers. Islamic law is not about what Muslims have done or practiced through history; it is about what a class of experts, including judges, have said Muslims should do, or at least what God wants them to do, through history.⁶³ The primary instrument of Islamic law has been the sustained, deliberate and cumulative reasoning from one example to another, one case to another, and one disputation to another. This instrument is wielded and operated through the craftsmanship ofjurists. Islamic law is a convention and practice, but it is a convention and practice of disciplined deliberation that is purposeful and cumulative. In many ways, Islamic law is the ongoing and continuing history of issues and problems, but only as such issues and problems have been understood, described, and resolved by jurists.

Notes

* Professor of Law, UCLA School of Law, and the Omar and Azmeralda Alfi Distinguished Professor in Islamic Law. I am very grateful to Dana Lee, Zezen Zaenal Mutaqin, Misha Checkovich and my wife, Grace Song, for their invaluable feedback and assistance.

1 The claim that Islamic law is an extreme case ofjurist’s law and casuistic in nature famously belongs to Joseph Schacht, An Introduction to Islamic Law (1964; repr. New York: Clarendon Press, 1982), 209.

2 See Baudouin Dupret, What is the Shari’ah? (London: Hurst & Co., 2018), 115.

3 Ibid., 133.

4 Ibid., 137-141.

5 See Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2013).

6 Hallaq describes this as the ‘ruin of Islamic law’. Wael B. Hallaq, ‘“Muslim Rage” and Islamic Law’, Hastings Law Journal 54 (August 2003): 1705-1720, 1712.

7 See Murteza Bedir, ‘Fikih to Law: Secularization through Curriculum’, Islamic Law and Society 11, no.

3 (2004): 386; Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave Macmillan, 2011); Dora Glidewell Nadolski, ‘Ottoman and Secular Civil Law’, International Journal of Middle East Studies 8, no. 4 (1977): 518; Haim Gerber, State, Society and Law in Islam: Ottoman Law in Comparative Perspective (Albany: State University of New York Press, 1994).

8 Ebrahim Moosa, ‘Recovering the Ethical: Practices, Politics, Tradition’, in The Shari'a: History, Ethics and Law, ed. Amyn B. Sajoo (London: I. B. Tauris, 2018), 47.

9 H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71, no. 4 (February 1958): 593-629; Cristobal Orrego, ‘H. L. A. Hart’s Arguments against Classical Natural Law Theory’, American Journal of Jurisprudence 48 (2003): 297-324; H. L. A. Hart, ‘The New Challenge to Legal Positivism (1979)’, Oxford Journal of Legal Studies 36, no. 3 (2016): 459-475; H. L. A. Hart, ‘Law in the Perspective of Philosophy: 1776-1976’, New York University Law Review 51, no. 4 (October 1976): 538-551; Dan Priel, ‘Toward Classical Legal Positivism’, Virginia Law Review 101, no. 4 (June 2015): 987-1022; Andrei Marmor, ‘The Separation Thesis and the Limits of Interpretation', Canadian Journal of Law and Jurisprudence 12, no. 1 (January 1999): 135—150; Andrei Marmor, ‘Legal Positivism: Still Descriptive and Morally Neutral', Oxford Journal of Legal Studies 26, no. 4 (December 2006): 683—704; Joseph Raz, ‘About Morality and the Nature of Law', American Journal of Jurisprudence 48 (2003): 1—16; Joseph Raz, ‘The Identity of Legal Systems', California Law Review 59, no. 3 (May 1971): 795—815; Joseph Raz, ‘Kelsen's Theory of the Basic Norm', American Journal of Jurisprudence 19 (1974): 94—111; Joseph Raz, ‘Legal Principles and the Limits of Law', Yale Law Journal 81, no. 5 (April 1972): 823—854.

10 Inclusive legal positivists, as opposed to exclusive legal positivists, believe that positive law is not necessarily separate from moral criteria. At times and under certain conditions, first order norms (or morality) should guide judicial behaviour. Whether inclusive legal positivism or what is also known as soft positivism is distinguishable from natural law is debatable. Kenneth Einar Himma, ‘Incorporationism and the Objectivity of Moral Norms', Legal Theory 5, no. 4 (December 1999): 415—434; Kenneth Einar Himma, ‘H. L. A. Hart and the Practical Difference Thesis', Legal Theory 6, no. 1 (March 2000): 1—44; Matthew H. Kramer, ‘On Morality as a Necessary or Sufficient Condition for Legality', American Journal of Jurisprudence 48 (2003): 53—82; Matthew H. Kramer, ‘On the Separability of Law and Morality', Canadian Journal of Law and Jurisprudence 17, no. 2 (July 2004): 315—336; Matthew H. Kramer, ‘Throwing Light on the Role of Moral Principles in the Law: Further Reflections', Legal Theory 8, no. 1 (March 2002): 115-144; Matthew Kramer, ‘How Moral Principles Can Enter into the Law', Legal Theory 6, no. 1 (March 2000): 83-108; Matthew H. Kramer, ‘Coming to Grips with the Law: In Defense of Positive Legal Positivism', Legal Theory 5, no. 2 (June 1999): 171-200; W. J. Waluchow, Inclusive Legal Positivism (Oxford: Oxford University Press, 1994); Brian Bix, ‘Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate', Canadian Journal of Law and Jurisprudence 12, no. 1 (January 1999): 17-34; Brian Bix, ‘On the Dividing Line between Natural Law Theory and Legal Positivism', Notre Dame Law Review 75, no. 5 (August 2000): 1613-1624; Brian Bix, ‘Jules Coleman, Legal Positivism, and Legal Authority', QLR 16, no. 3 (Fall 1996): 241-254.

11 In Thomistic natural law theory, humans must actively participate in the eternal law of God by using reason in conformity with the natural law to discern what is good and evil. This obligation flows from the duty to do good and avoid evil. Daniel Mark Nelson, The Priority of Prudence: Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics (University Park: Pennsylvania State University Press, 1992); Steven A. Long, ‘Natural Law or Autonomous Practical Reason: Problems for the New Natu ral Law Theory', in St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives, ed. John Goyette, Mark S. Latkovic and Richard S. Myers (Washington, DC: Catholic University of America Press, 2004), 165-193; Ralph McInerny, ‘On Knowing the Natural Law', in The Ethics of St. Thomas Aquinas, ed. Leo J. Elders and Klaus Hedwig (Vatican City: Libreria Editrice Vaticana, 1984), 133-160; G. B. Siniscalchi, ‘Modified Divine Commands, Atheistic Moral Realism, and Thomistic Natu ral Law', New Blackfriars 96, no. 1064 (March 2015): 419-444; Michael Betram Crowe, The Changing Profile of Natural Law (The Hague: Martinus Nihoff, 1977); John Goyette, Mark S. Latkovic and Richard S. Myers (eds), St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Washington, DC Catholic University of America Press, 2004). On the development of natu ral law theory from the ancient Greeks to the Christian thinkers of medieval Europe see, Fr R. O'Brien Waugh, ‘Natural Law', University of New Brunswick Law Journal 16 (1966): 34-48; John Finnis, ‘Natural Law Theory: Its Past and Its Present', American Journal of Jurisprudence 57 (2012): 81-102; Fulvio Di Blasi, God and the Natural Law: A Rereading of Thomas Aquinas, trans. David Thunder (South Bend, IN: St Augustine's Press, 2001); Howard Kainz, Natural Law: A Reevaluation (Peru, IL: Open Court, 2004); Matthew Levering, Biblical Natural Law: A Theocentric and Teleological Approach (New York: Oxford University Press, 2008).

12 Robert P. George, ‘Natural Law', American Journal of Jurisprudence 52 (2007): 55-76; Robert P. George, ‘One Hundred Years of Legal Philosophy', Notre Dame Law Review 74, no. 5 ( June 1999): 1533-1550; R. George Wright, ‘Ministers of the Law: A Natural Law Theory of Legal Authority', Journal of Law and Religion 26, no. 2 (2010-2011): 609-620; Philip Soper, ‘Some Natural Confusions about Natural Law', Michigan Law Review 90, no. 8 (August 1992): 2393-2423; Philip Soper, ‘Law's Normative Claims', in The Autonomy of Law, ed. Robert P. George (Oxford: Clarendon Press, 1996), 215-247; Michael S. Moore, ‘Moral Reality Revisited', Michigan Law Review 90, no. 8 (August 1992): 2424-2533; Michael S. Moore, ‘A Natural Law Theory of Interpretation', Southern California Law Review 58, nos 1 & 2 (January 1985): 277-398.

In her well-known book Sinha discusses what she calls divine and prophetic theories of law, natural law theories, idealist theories, positivist theories, historical or Marxist theories, sociological theories, realist theories, phenomenological theories of law, and Critical Legal Studies. See Surya Prakash Sinha, What is Law? The Differing Theories of Law (New York: Paragon House, 1989), 53—213.

I am not discounting or ignoring sociological theories of law. Sociological legal theories often focus on the scientific analysis of legal practice as a system of behaviour and tend to see law as a system of social control. However, in my opinion, unlike positivist, natural law or interpretivist approaches, sociological approaches provide a useful methodology for critiquing the dynamics of power in legal practice but do not provide a satisfying way of understanding the nature of law. On sociology of law, see Roscoe Pound, ‘Sociology of Law and Sociological Jurisprudence', University of Toronto Law Journal 5, no. 1 (1943): 1—20; Roman Tomasic, review of The Sociology of Law: An Introduction, by Roger Cotterrell, Australian Journal of Law and Society 2 (1985): 90—95; Donald J. Black, ‘The Boundaries of Legal Sociology', Yale Law Journal 81, no. 6 (May 1972): 1086—1101; Frank Munger, ‘Sociology of Law for a Postliberal Society', Loyola of Los Angeles Law Review 27, no. 1 (November 1993): 89-126; Rita J. Simon and James P. Lynch, ‘Sociology of Law: Where We Have Been and Where We Might Be Going', Law & Society Review 23, no. 5 (1989): 825-848; Richard Abel, ‘What Else is Sociology of Law? Reflection on John Griffiths's What is Sociology of Law?' The Journal of Legal Pluralism and Unofficial Law 49, no. 3 (2017): 373-379.

See Shaheen Sardar Ali, Modern Challenges to Islamic Law (Cambridge: Cambridge University Press, 2016), 20-22.

For a sustained argument of Shari 'ah as nomos, see Sohaira Z. M. Siddiqui, Knowledge and Law under the Abbasids: An Intellectual Portrait of al-Juwaym, (Cambridge: Cambridge University Press, 2018), 24-5, 199-106.

Subhi Mahmasani, Falsafat al-Tashri' al-Islami, 3rd edn (Beirut: Dar al-'Ilm li-l-Malayin, 1961), 199-200; Muhammad Abu Zahrah, Usul al-Fiqh (Cairo: Dar al-Fikr al-'Arabi, n.d.), 291; Mustafa Zayd, Al-Maslaha fi al-Tashri' al-Islami wa-Najm al-Din al-Tufi, 2nd edn (Cairo: Dar al-Fikr al-'Arabi, 1964), 22; Yusuf al-'Alim, al-Maqasid al- Amma li-l-Shari 'ah al-Islamiyya (Herndon, VA: International Institute of Islamic Thought, 1991), 80; Muhammad ibn 'Ali al-Shawkani, Talab al- Ilm wa-Tabaqat al-Muta'allimin (n.p.: Dar al-Arqam, 1981), 145-151.

Khaled Abou El Fadl, Reasoning with God: Reclaiming Shari 'ah in the Modern Age (Lanham, MD: Rowman and Littlefield, 2014), 298-9.

Abu al-Walid ibn Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Cairo: Dar al-Shuruq al-Dawliyya, 2004), 760.

Shams al-Din ibn Qayyim al-Jawziyya, I 'lam al-Muwaqqi 'in 'an Rabb al- Alamin (Beirut: al-Maktaba al-'Asriyya, 2003), 3:13.

Intisar Rabb, ‘The Islamic Rule of Lenity: Judicial Discretion and Legal Canons', Vanderbilt Journal of Transnational Law 44: 1299-1351, 1329-30 (2011); Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2015), 185-225; Rami Koujah, ‘A Critical Review Essay of Anver M. Emon's Islamic Natural Law Theories', UCLA Journal of Islamic and Near Eastern Law 14, no. 1 (2015): 1-28.

Intisar Rabb writes that Muslim jurists used ‘legal canons to thread the needle of power...' See Intisar Rabb, ‘The Curious Case of Bughaybigha', 661-883; ‘Land and Leadership in Early Islamic Societies', in Justice and Leadership in Early Islamic Courts, ed. Intisar Rabb and Abigail Krasner Bal- bale (Cambridge, MA: Harvard University Press, 2017), 29.

Jurists often debated whether and to what extent moral laws are intuitively known or should be known. For instance, are the prohibitions against lying, cheating, stealing and murder known, or should they be known intuitively? Likewise, they debated whether the prohibition of fornication, adultery and other sexual crimes are intuitively or natu rally known or should be known.

Mahmasani, Falsafat al-Tashri, 59; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. edn (Cambridge: Islamic Texts Society, 1991), 285.

Muhammad Abu al-Harith al-Ghazzi, Mawsu'at al-Qawa'id al-Fiqhiyya (Beirut: n.p., 1995), 1:33; Ahmad ibn Muhammad al-Zarqa, Sharh al-Qawa'id al-Fiqhiyya, ed. Mustafa Ahmad al-Zarqa, 4th edn (Damascus: Dar al-Qalam, 1996), 227-229; Mahamsani, Falsafat al-Tashri', 200-202; C. R. Tyser (trans.), The Mejelle: Being an English Translation of Majallah-el-Ahkam-Adliya and a Complete Code on Islamic Civil Law (Lahore: Punjab Educational Press, 1967), 8.

Abu al-Ma'ali al-Juwayni, Kitab al-Ijtihad min Kitab al-Talkhis (Damascus: Dar al-Qalam, 1987), 50-51.

Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi (Salt Lake City: University of Utah Press, 1992), 734—738.

Mahmasani, Falsafat al-Tashri', 168; Kamali, Principles of Islamic Jurisprudence, 197; Hallaq, Islamic Legal Theories, 83—84.

See Ahmad Zaki Hammad, Islamic Law: Understanding Juristic Differences, 44. This statement has also been attributed to al-Shafi'i. Another version of this report states, ‘Abu Hanifah is reported to have said: ‘We know [that] this [position] is one opinion, and it is the best we can arrive at. [If] someone arrives at a different view, then he adopts what he believes [is best] and we adopt what we believe [is best].’ Abu Muhammad ibn Sa'id ibn Hazm, Kitab al-Fasl fi al-Milal wa-l-Ahwa' wa-l-Nihal (Egypt: al-Matba'ah al-Adabiyya, 1317 A.H.), 2:46; Mahmasani, Falsafat al-Tashri^c, 42.

Ahmad ibn 'Abd al-Rahim al-Dahlawi, Shah Wali Allah, al-Insaf fi Bayan Sabab al-Ikhtilaf fi al- Ahkam al-Fiqhiyya (Cairo: al-Matba'a al-Salafiyya, 1385), 12; Jalal al-Din 'Abd al-Rahman al- Suyuti, Ikhtilaf al-Madhahib, ed. 'Abd al-Qayyim Muhammad Shafi' al-Bastawi (Cairo: Dar al-I'tisam, 1404 A.H.), 22-23.

Shah Wali Allah, al-Insaf, 12; al-Suyuti, Ikhtilaf al-Madhahib, 22-23; Yasin Dutton, The Origins of Islamic Law: The Qur'an, the Muwatta, and Madinan Amal (Richmond, Surrey: Curzon Press, 1999), 29; Patricia Crone and Martin Hinds, God’s Caliph: Religious Authority in the First Centuries of Islam (Cambridge: Cambridge University Press, 1986), 86. Incidentally, there is a disagreement over whether the Caliph in question was al-Mansur (d. 158/775) or Harun al-Rashid (d. 193/809). Al-Juwayni, Kitab al-Ijtihad, 61.

Sayf al-Din Abu al-Hasan 'Ali ibn Abi 'Ali ibn Muhammad al-Amidi, al-Ihkam fi Usul al-Ahkam, ed. 'Abd al-Razzaq 'Afifi, 2nd edn (Beirut: al-Maktab al-Islami, 1402 A.H.), 4:183; Jamal al-Din Abi Muhammad 'Abd al-Rahim ibn al-Hasan al-Asnawi, al-Tamhidfi Takhrij al-Furu 'ala al-Usul, 3rd edn (Beirut: Mu’assasat al-Risala, 1984), 531-534; Muhammad ibn al-Hasan al-Badakhshi, Sharh al-Badakhshi Manahij al-'Uqul ma a Sharh al-Asnawi Nihayat al-Sul (Beirut: Dar al-Kutub al-'Ilmiyya, 1984), 3:275-281; Abu Hamid al-Ghazali, al-Mustasfa, 2:375-378; al-Juwayni, Kitab al-Ijtihad, 41; Abu al-Thana’ Mahmud ibn Zayd al-Lamishi, Kitab fi Usul al-Fiqh, ed. 'Abd al-Majid Turki (Beirut: Dar al-Gharb al-Islami, 1995), 202-203; Shihab al-Din al-Qarafi, Sharh Tanqih al-Fusulfi Ikhtisar al-Mahsulfi al-Usul, ed. Taha 'Abd al-Ra’uf Sa'd (Beirut: Dar al-Fikr, 1973), 440; Fakhr al-Din al-Razi, Al-Mahsul fi 'Ilm Usul al-Fiqh, ed. Taha Jabir al-'Alwani, 3rd edn (Beirut: Mu’assasat al-Risala, 1997), 6:34-35, 6:43-50; Zaki al-Din Sha'ban, Usul al-Fiqh al-Islami (Egypt: Matba'at Dar al-Ta’lif, 1965), 418-419.

Intisar Rabb describes al-Juwayni’s argument as substantive and procedural legal minimalism. See Intisar Rabb, ‘Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear’, in Law and Tradition in Classical Islamic Thought: Studies in Honor of Professor Hossein Modarressi, ed. Intisar Rabb, Asma Sayeed, Michael Cook and Najam Haider (New York: Palgrave Macmillan, 2013), 145-166.

On Islamic legal pluralism, see Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi (New York: Brill, 1996); Intisar Rabb, ‘Reasonable Doubt in Islamic Law’, Yale Journal of International Law, 40 (2015): 41-94, 90-91. Also see Muhammad Fadel, The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers (New Haven, CT: Yale University Press, 2017), 1-55. Fadel contends that Qarafi argued Islamic legal pluralism is hinged on judicial determinations. Once a judge issues a decision (hukm) the judge’s decision becomes God’s law and there is a moral obligation to obey such a judgment. The Arabic is ‘kull mujtahid muslb’ and ⁽li-kull mujtahid naslb’.

See Jasser Auda, Maqasid al-Shari’ah as Philosophy of Islamic law (Herndon, VA: International Institute of Islamic Thought, 2008); Idris Nassery, Rumee Ahmed and Muna Tatari (eds), The Objectives of Islamic Law: The Promises and Challenges of the Maqasid al-Shari’ah (London: Rowman and Littlefield, 2018).

See Sherman Jackson, ‘The Primacy of Domestic Politics: Ibn Bint Al-Azz and the Establishment of the Four Chief Judgeships in Mamluk Egypt’, Journal of the American Oriental Society 115 (1995): 52-65; Baber Johansen, ‘Truth and Validity of the Qadi’s Judgment: A Legal Debate among Sunnite Muslim Jurists from the Ninth to the Thirteenth Centuries’, Recht van de Islam 14 (1997): 1-26. See George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981); George Makdisi, ‘The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court’, Zeitschrift fur Geschichte der arabisch-islamischen Wissenschaften, ed. Fuat Sezgin (Frankfurt: Institut fur Geschichte der arabisch-islamischen Wissenschaften, 1984); Monica Gaudiosi, The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College', University of Pennsylvania Law Review 136 (1988): 1231-1261.

Muhammad Amin ibn 'Umar ibn 'Abidin, ‘Nashr al-'Arf fi Bina’ Ba'd al-Ahkam 'ala al-'Urf', in Majmuat Rasa'il Ibn Abidin (Beirut: Dar Ihya’ al-Turath al-'Arabi, 1970): 112-163; Muhammad Abu Zahrah, Usul al-Fiqh (Cairo: Dar al-Fikr, n.d.), 217-219; Muhammad Khalid Masud, Islamic Legal Philosophy: A Study of Abu Ishaq al-Shatibi's Life and Thought (New Delhi: International Islamic Publishers, 1989), 226, 293-299.

Muhammad Sa'id Ramadan al-Buti, Dawabit al-Maslaha fi al-Shari 'ah al-Islamiyya, 6th edn (Beirut: Mu’assasat al-Risala, 1992), 207-216, 285-357; 'Allal al-Fasi, Maqasid al-Shari 'ah al-Islamiyya wa-Makarimuha, 5th edn (Beirut: Dar al-Gharb al-Islami, 1993), 137-140; Mahmasani, Falsafat al-Tashri', 172-175; John Makdisi, ‘Legal Logic and Equity in Islamic Law', American Journal of Comparative Law 33 (1985): 63-92; Kamali, Principles of Islamic Jurisprudence, 167-168; Hallaq, Islamic Legal Theories, 107-113; Dutton, Origins of Islamic Law, 34.

Mahmasani, Falsafat al-Tashri, 172-175; Kamali, Principles of Islamic Jurisprudence, 253-257.

For instance, Najm al-Din al-Tufi (d. 716/1316) was widely criticized by his fellow jurists when he suggested that public interest could be an independent and sufficient source of law even with the existence of text that is on point on a particular issue. Mustafa Zayd, al-Maslaha fi al-Tashri' al-Islami wa Najm al-Din al-Tufi, 2nd edn (Cairo: Dar al-Fikr al-'Arabi, 1964), 65-172; al-Buti, Dawabit al- Maslaha, 178-189; Masud, Islamic Legal Philosophy, 165, 174-175; Hallaq, Islamic Legal Theories, 208; Ihsan Abdul Baghby, ‘Utility in Classical Islamic Law: The Concept of “Maslahah” in “Usul al- Fiqh”', (PhD diss., University of Michigan, 1986), 166-170.

See Sherman Jackson, ‘Fiction and Formalism: Toward a Functional Analysis of Usul Al-Fiqh', in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 178.

Abu Hamid al-Ghazali, Ihya' Ulum al-Din, ed. Ahmad 'Inaya and Ahmad Zahwa (Beirut: Dar al-Kitab al-'Arabi, 2008), 28.

Ibid., 33.

See Ibn Rushd, Bidayat al-Mujtahid, 759.

Abu al-Hasan al-Mawardi, Al-Ahkam al-Sultaniyya wa-l-Wilaya al-Diniyya (Beirut: Dar al-Kutub al-'Ilmiyya, 1985), 250; Abu al-Hasan al-Mawardi, Adab al-Qadi, ed. Muhammad Muhyi Hilal Sarhan (Baghdad: Matba'at al-Irshad, 1971): 14-16.

Rabb, ‘Reasonable Doubt in Islamic Law', 67-69.

In this context, Ibn Rushd cites the Prophet's narrative in which the Prophet explained that he (the Prophet) is but a human being, and the Prophet warned that in adjudicating disputes, if he rules in favour of an undeserving party, this ruling will not absolve the unjust litigant from liability before God in the Hereafter. The Prophet explained that he may be swayed by the arguments of the litigants one way or the other, and therefore, unknowingly rule in favour of the unjust party. But this judgment does not absolve the wrongful party from liability in the Hereafter. Ibn Rushd, Bidayat al-Mujtahid, 748.

Mohammad Fadel (trans.), The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers (New Haven, CT: Yale University Press, 2017), 1-55. Fadel argues that the 13th-century jurist al-Qarafi did in fact maintain that a judge's decision becomes God 's law and there is a moral obligation to obey such a judgment.

Baber Johansen, ‘Truth and Validity of the Qadi's Judgment: A Legal Debate Among Sunnite Muslim Jurists from the Ninth to the Thirteenth Centuries', Recht van de Islam 14 (1997): 1-26.

See Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001).

For instance, even if an act would not be considered legal coercion, exercising undue influence or taking advantage of someone's weakness could be a sin, even if not legally justiciable. Similarly, failing to feed a starving person who subsequently dies of starvation might not lead to criminal culpability in this life, but it is a grave sin. See Muhammad ibn Muhammad al-Shirbini, Mughni al-Muhtaj ila Ma'rifat Ma'ani Alfaz al-Minhaj, ed. Muhammad Khalil Ayatani (Beirut: Dar al-Ma'rifa, 1997), 4:415; Muhammad ibn Ahmad al-Sarakhsi, Kitab al-Mabsutt, ed. Kamal 'Abd al-'Azim al-'Inani (Beirut: Dar al-Kutub al-'Ilmiyya, 2001), 24:77; Abu Bakr ibn Mas’ud al-Kasani, Kitab Badai ' al-Sana'i' fi Tartib al-Sharai' (Cairo: Zakariyya Ali Yusuf, 1968), 9:4483; Dana E. Lee, ‘At the Limits of Law: Necessity in Islamic Legal History' (Princeton University, unpublished dissertation, 21 June 2018); Khaled Abou El Fadl, ‘The Common and Islamic Law of Duress', Arab Law Quarterly 2 (1991): 6.

55 Sherman Jackson, ‘The Primacy of Domestic Politics: Ibn Bint al-A'azz and the Establishment of the Four Chief Judgeships in Mamluk Egypt’, Journal of the American Oriental Society 115 (1995): 52—65; Joseph Escovitz, ‘The Establishment of Four Chief Judgeships in the Mamluk Empire’, Journal of the American Oriental Society 102 (1982): 529—31; Yossef Rappoport, ‘Legal Diversity in the Age of Taqlid: The Four Chief Qadi under the Mamluks’, Islamic Law and Society 10, no. 2 (2003): 210—228. See also E. Tyan, Histoire de l’oranisation judicaire en pays d’Islam, 2nd edn (Leiden: Brill, 1960).

56 Abou El Fadl, Reasoning with God, 320.

57 See Intisar Rabb, ‘Doubt in Islamic Law’, 185—225; Luqman Zakariyah, Legal Maxims in Islamic Criminal Law: Theory and Applications (Leiden: Brill, 2015).

58 Cherif Bassiouni, The Shari 'a and Islamic Criminal Justice in Time of War and Peace (Cambridge: Cambridge University Press, 2013), 132-144.

59 See Intisar Rabb, ‘Society and Propriety: The Cultural Construction of Defamation and Blasphemy as Crimes in Islamic Law’, in Accusations of Disbelief in Islam: A Diachronic Perspective on Takfir, ed. Sabine Schmidtke, Camila Adang and Hassan Ansari (Leiden: Brill, 2016), 434-62.

60 J. N. D. Anderson, Law Reform in the Muslim World (London: Athlone Press, 1976).

61 On the ‘invention of Islamic law’, see Dupret, What is the Shari’ah?, 133-164.

62 On agency, autonomy, deference and authority in Islamic law, see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority, and Women (Oxford: Oneworld Press, 2001), 96-133.

63 Incidentally, in their eagerness to reform Islamic law, some contemporary Muslims have attempted to popularize or ‘democratize’ Islamic law by contending that lay Muslims are entitled to practise ijtihad or that all Muslims have a right to participate in the production of Islamic law. As egalitarian as these arguments might sound, such arguments often lack systematic coherence, and they threaten to unravel the very logic of a legal system. Moreover, these egalitarian arguments often raise the specter of transforming Islamic law into the stereotypical paradigm of qadi justice or whimsical justice unfettered by evidence, precedent, or method. On qadi justice see Intisar A. Rabb, ‘Against Kadijustiz: On the Negative Citation of Foreign Law,’ Suffolk University Law Review 48, no. 2 (2015): 343-378.

<< | >>

↑

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

More legal literature on Laws.Studio

What is Islamic law?

More on the topic What is Islamic law?: