Whither Islamic Law?

Ebrahim Moosa contends that:

The very idea of ‘Islamic law’ is, in many ways, a misnomer. While classical jurists (fuqaha’) adjudicated everything from prayers and fasting to war and trade, it is uncertain whether they were engaged in law-making as we understand law today.

It would be more accurate to say that they were engaged in identifying norms derived from teachings inspired by revelation as well as the experiences of the early Muslim communities, and in describing how these practices translated into the realities of their own societies.

Moosa goes on to suggest that we ought to think of ‘Islamic law as an enterprise in ethics’.⁸ One suspects that what motivates this kind of argument is the desire to make Islamic law less binding and mandatory in the modern world — in other words, the desire to open up spaces for negotiation and discretion in the modern age when dealing with the enormous corpus of Islamic legal adjudications. Although this argument has gained currency among contemporary Muslims, the problem is that if Islamic law is thought of as an ethical enterprise, Islamic legal determinations would become more obligatory and binding, not less so. Theoretically, ethical norms are norms about what is right and wrong and what is good and bad. Hence, instead of being understood as a deliberative process applying practical reasoning in search of the Divine Will, Islamic legal determinations might embody actual ethical norms. Put simply, it is far easier to claim that a specific legal ruling does not apply to a particular set of circumstances due to instrumental reasons than it is to defy or challenge the relevance of ethical norms. Take, for instance, the penalty of severing the hands for robbery or stoning for adultery. Are these penalties functional instrumentalities of law, or are they ethical norms about what is good and moral, and what is bad and immoral?

But as we encountered with Dupret and Hallaq, Moosa’s argument hinges on how we understand and define law.

The above-mentioned authors, as well as many others, base their arguments on the unspoken assumption that modern law is necessarily positivistic — that law is the command of the sovereign backed up by the threat of the use of force. Although contemporary authors rarely expressly explain what they mean by the expression ‘modern law’, one can reasonably speculate that they understand modern law in strict positivist terms. In their estimate, law and its authority are seen as source-based. Meaning, the validity of legal norms depends on the sources determined by a social community’s rules and conventions, and not moral values or ethics. Law is as if a closed system in which there are rules of recognition for identifying valid law, and this valid law is necessarily enforced by the state. The challenge is that this vulgar form of exclusive positivism does not accurately describe the phenomenon of law. This Austinian positivist understanding of law is grossly outdated and has long been abandoned by most positivists. Even the most staunch proponent of exclusive positivism today recognizes that law is a far more complex phenomenon than first described by John Austin in his classical command theory.⁹ To be clear, I do not necessarily disagree with Dupret, Hallaq, Moosa and similar writers, I am simply noting that one cannot claim that Islamic law is not law unless one first clarifies and defends their conception of law. What is often described as exclusive legal positivism¹⁰ is not the only possible understanding of modern law, and to assume that it is, forces one to think in terms of the binary division of either law or ethics. To describe Islamic law as a set of norms, but not law, does not add clarity. Norms is a conveniently ambiguous term that could mean practically anything.

In theory, one is not confined to the choice of Islamic law as either an exclusivist positivist enterprise or not law at all. For instance, one can wonder whether Islamic law is best understood as a teleological natural law concept, most notably in its Thomistic sense.¹¹ This is often described as a voluntarism in which something is good or bad, and something is morally required or not, because God has commanded that it be so.

However, most natural law theories are aspirational in nature, in which the validity of law is best understood in terms of its moral objectives, such as justice or reasonableness.¹² As will be observed below, Islamic law does often sound as if it is a teleological project best understood in natural law terms. After all, in Islamic jurisprudential theory, it is elementary that God is just and commands justice. However, we are not limited to either exclusive legal positivism or natural law theory in describing Islamic law.¹³ In other words, legal positivism or natural law are not the only two possible choices in identifying the nature of a legal system.¹⁴ In my view, Islamic law is best described as the process of a practiced discipline of deliberative and purposeful practical reasoning in which rulings are developed primarily through analogical dynamics. Before proceeding further and explaining this argument, we must review some of the key concepts of Islamic law.

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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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Whither Islamic Law?

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