THE ISLAMIC LEGAL TRADITION
Encyclopedia Entry for the Cambridge Companion to Comparative Law
By Khaled Abou El Fadl
Table of Contents
The Difference between Islamic Law and Muslim Law
The Sources of Islamic Law
The Nature and Purpose of Islamic Law
The Difference between Shari’a and Fiqh:
The Sacred and Profane in Islamic Law
The Rights of God and the Rights of Humans
Modernity and the Deterioration of Islamic Law
The Islamic legal system consists of legal institutions, determinations, and practices that span a period of over fourteen hundred years arising from a wide variety of cultural and geographic contexts that are as diverse as Arabia, Egypt, Persia, Bukhara, Turkey, Nigeria, Mauritania, Mali, Indonesia, or India. Despite the contextual and historical contingencies that constitute the complex reality of Islamic law, rather paradoxically, the Islamic legal legacy has been the subject of widespread and stubbornly persistent stereotypes and over-simplifications, and its legacy is highly contested and grossly understudied at the same time. Whether espoused by Muslim or non-Muslim scholars, highly simplified assumptions about Islamic law, such as the belief that Islamic legal doctrine stopped developing in the 4th/10th century, the presumed sacredness and immutability of the legal system, or the phenomenon of so-called Qadi justice, are, to a large extent, products of turbulent political histories that contested and transformed Islamic law (or what is commonly referred to as Shari’a) into a cultural and ideological symbol. As part of the legacies of colonialism and modernity, Islamic law was then transformed into a symbolic construct of highly contested issues such as legitimacy, authenticity, cultural autonomy, or traditionalism, reactionism, or religious oppression. Intellectually, there is a continuing tendency to treat Shari’a law as if it holds the keys to unlocking the mysteries of the Muslim heart and mind, or alternatively, as if it is entirely irrelevant to the formation and dynamics of Muslim societies. In all cases, however, because of the disproportionately politicized context of the field, Islamic legal studies remains largely undeveloped, and the discipline is plagued by inadequate scholarship, especially in the field of comparative legal studies. It is important to stress the point because, for all the generalizations one often encounters in the secondary literature on Islamic law, the reality is that considering the richness of the legal tradition, our knowledge of the institutions, mechanisms, and micro-dynamics, discourses, and determinations of Islamic law in various places and times is very limited.
The Difference between Islamic Law and Muslim Law
Not all legal systems or rules followed by Muslims are part of the Islamic legal tradition, but at the same time, the boundaries of Islamic law are far more contested and negotiable than any fundamentalist or essentialist approach may be willing to admit. Part of what makes this issue particularly challenging is that, inescapably, it involves judgments as to the legitimacy and authenticity of what is Islamic and what is not necessarily so. But more critically, the differentiation cannot be intelligibly addressed unless one takes full account of the epistemology and philosophy of Islamic jurisprudence, or the rules of normativity, obligation, and authority, and the processes of inclusion and exclusion in Islamic legal practice and history. Although Islamic law grew out of the normative teachings of the Prophet Muhammad and his disciples, the first generations of Muslim jurists borrowed and integrated legal practices from several sources including Persia, Mesopotamia, Egypt and other Roman provinces, Yemen and Arabia, and Jewish law. But at the same time, many existing and actual customary or executive administrative practices prevalent in pre-modern Muslim societies and polities were not integrated or recognized as being part of, or even consistent with, Islamic law or Islamic normative values.
Distinguishing Islamic from Muslim law has only become more elusive and challenging in post-colonial modern-day Muslim societies. Most contemporary Muslim countries adopted either the French-based Civil law system or some version of the British Common law system and limited the application of Islamic law to personal law matters, particularly in the fields of inheritance and family law. In addition, in response to domestic political pressure, several Muslim countries in the 1970’s and 1980’s attempted to Islamize their legal systems by amending commercial or criminal laws in order to make them more consistent with purported Islamic legal doctrine. The fact remains, however, that the nature of the connection or relationship of any of these purportedly Islamically-based or Islamized laws to the Islamic legal tradition remains debatable. Islamic legal doctrine was grafted onto what structurally and institutionally, as well as epistemologically, were legal systems borrowed and transplanted from the West. Practically in every Muslim country, the complex institutional structures and processes of the Islamic legal system, especially in the 19th century, were systematically dismantled and replaced not just by Western legal systems but, more importantly, by the legal cultures of a number of Western colonial powers.
The Sources of Islamic Law
It is important to distinguish the formal sources of law in the Islamic legal tradition from what is often called the 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 Sunna (the tradition of the Prophet Muhammad and his companions), qiyas (analogical or deductive 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, recognizes reason (instead of qiyas) 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 presumptions of continuity (istishab) and the imperative of following precedents (taqlid), legal rationalizations for breaking with precedent and de novo determinations (ijtihad), application of customary practices (‘urf and ‘adah), judgments in equity, equitable relief, and necessity (istislah, haja, darura, etc.), and in some cases, the pursuit or the protection of public interests or public policies (masalih mursala and sadd al-thara’i’ wa al-mafasid). 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 rule of law.
Being the ultimate sources of legitimacy, the formal sources of law do not play a solely symbolic role in Islamic jurisprudence. Many legal debates and determinations originated or were derived directly from the textual narrative of the Qur’an and Sunna. 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 Sunna. 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. [i] 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 deals 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 historicity or authenticity of the hadith (oral traditions attributed to the Prophet) and the Sunna (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 was normatively binding because most jurists differentiated between the Prophet’s sacred and temporal roles. Not everything the Prophet said or did created normative obligations upon Muslims. Part of the challenge for Muslim jurists was to ascertain when his statements and actions were intended to create a legal obligation or duty (taklif), and when they were not meant to have any normative weight.
The Nature and Purpose of Islamic Law
As an essential point of departure, it is important to underscore that in jurisprudential theory, the ultimate point of Shari’a is to serve the well-being or achieve the welfare of people (tahqiq masalih al-‘ibad).[ii] The word Shari’a, which many very often erroneously equate with Islamic law, means the Way of God and the pathway of goodness, and the objective of Shari’a is not necessarily the compliance with the commands of God for their own sake. Such compliance is a means to an end—the serving of the physical and spiritual welfare and well-being of people. Significantly, in Islamic legal theory, God communicates God’s Way (the Shari’a) through what is known as the dalil (pl. adillah). The dalil means the indicator, mark, guide, or evidence, and in Islamic legal theory, it is the fundamental building block of the search for the Divine Will and guidance. The most obvious type of indicator is an authoritative text (sing. nass Shar’i 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), intuitions (fitrah), and human custom and practice (‘urf and ‘adah).[iii] 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.
In Islamic jurisprudence, 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.[iv] 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-ahkam bi taghayyur al-zaman wa al-ahwal).[v]
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 (yaqin and qat’). 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). 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 of judgment 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 tarjih,[vi] 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. [vii]
Contemporary fundamentalist and essentialistic orientations imagine Islamic law to be highly deterministic and casuistic, but this is in sharp contrast to the epistemology and institutions of the Islamic legal tradition that supported the existence of multiple equally orthodox and authoritative legal schools of thought, all of which are valid representations of the Divine Will. Indeed, the Islamic legal tradition was founded on a markedly pluralistic, discursive, and exploratory ethos that became the very heart of its distinctive character. According to classical legal reasoning, no one jurist, institution, or juristic tradition may have an exclusive claim over the Divine truth, and hence, the state does not have the authority to recognize the orthodoxy of one school of thought to the exclusion of all others.[viii] While Shari’a is Divine, fiqh (the human understanding of Shari’a) was recognized to be only potentially so, and it is the distinction between Shari’a and fiqh that fueled and legitimated the practice of legal pluralism in Islamic history.
The Difference Between Shari'a and Fiqh
The conceptual distinction between Shari'a and fiqh was the result of recognizing the limitations of human agency, and also a reflection of the Islamic dogma that perfection belongs only to God. While Shari’a was seen as an abstract ideal, every human effort at understanding or implementing this ideal was considered necessarily imperfect. In theory, Muslim jurists agreed that even if a jurist’s determination is ultimately wrong, God will not hold such a jurist liable as long as he exerted due diligence in searching for the right answer. According to one group of legal theorists, those who are ultimately proven to be wrong will still be rewarded for their due diligence but those who prove to be right will receive a greater reward. The alternative point of view, however, argued that on all matters of fiqh there is no single truth to be revealed by God in the Hereafter. All positions held sincerely, and reached after due diligence are in God’s eyes correct. God rewards people in direct proportion to the exhaustiveness, diligence, and sincerity of their search for the Divine Will—sincerity of conviction, the search, and the process are in themselves the ultimate moral values. It is not that there is no objective truth—rather, according to this view, the truth adheres to the search.
This classical debate had an impact upon the development of various doctrines and institutions in Islamic jurisprudence, the most important of which was negotiating the dynamics between Shari’a and fiqh. In the Islamic legal tradition, there is only one Shari’a (Shari’at Allah) but there are a number of competing schools of thought of fiqh (madhahib fiqhiyya). Although all jurists embraced the theological dogma that God’s perfection cannot be reproduced or attained by human beings, this did not mean that they considered every aspect of Shari’a to be entirely unattainable or inaccessible until the Hereafter. Some have suggested that Shari’a contains the foundational or constitutional principles and norms of the legal system. So for instance, Shari’a imposes a duty (taklif) upon Muslims to enjoin goodness and resist wrongfulness. There is little doubt that this duty is a part of Shari’a, but what it actually means and how or who should implement it is part of fiqh. Nevertheless, the exact boundaries between Shari’a and fiqh were often contested and negotiable, and whether there is overlap between the two categories turned out to be challenging and at times ambiguous. Behind most of the jurisprudential conceptions of Shari’a was the basic idea that what cumulative generations of Muslims reasonably identified as fundamental to the Islamic religion (for instance, the five pillars of the Islamic faith: profession of faith (shahada), prayer (salat), fasting (siyam), almsgiving (zakat), pilgrimage (hajj)) ought to be part of the unassailable Shari’a. As some have contended, this approach might have been important to the field of theology, but in law, Shari’a could not be limited to inherited or popular ideas. Rather, Shari’a is comprised of the foundational or constitutional normative values that constitute the grundnorms of the Islamic legal system. For instance, the notion that the Divine Will cannot be represented by a single system of fiqh, and the celebration of diversity is itself one of those foundational grundnorms. For example, it is firmly established in the Islamic legal tradition that Shari’a seeks to protect and promote five fundamental values: 1) life; 2) intellect; 3) reputation or dignity; 4) lineage or family; and 5) property. Furthermore, Muslim jurists overwhelmingly held that there are three basic levels of attainment or fulfillment of such values: the necessities, needs, and luxuries. Under Shari’a law, legal imperatives increase in proportion to the level demand for the attainment of each value. Thus, when it comes to life, for example, the legal duty to secure a person’s survival is a priori to the obligation of guaranteeing human beings any basic needs that are above and beyond what is necessary for survival. Nevertheless, alongside these broad fundamental principles, historically, Muslim jurists developed specific positive commandments that were said to be necessary for the protection of the values mentioned above, such as, for instance, the laws punishing slander, which were said to be necessary for the protection of reputation or dignity, or the laws punishing fornication, which were said to be necessary for the protection of lineage and family. I will discuss the hudud penalties further below, but for now it is important to emphasize that many of the positive legal determinations purportedly serving the five values were often declared to be a part of Shari’a, and not just fiqh, or were left in a rather ambiguous and contested status between Shari’a and fiqh. Claiming that a positive legal commandment is not a by-product of fiqh, but is essentially part of Shari’a effectively endowed such a commandment with immunity and immutability. The boundaries between Shari’a and fiqh were negotiated in a variety of highly contextually contingent ways in the course of Islamic history, but the dynamics and processes of this history remains grossly understudied.
Purportedly, by the end of 10th century, no less than one hundred schools of fiqh had emerged, but for a wide variety of reasons most of these schools ultimately failed to survive. The most striking characteristic about the legal schools that dominated the practice of law for more than three centuries after the death of the Prophet is their remarkable diversity, and in fact, one would be hard pressed to find any significant legal issue about which juristic disputations and discourses have not generated a large number of divergent opinions and conflicting determinations. Put differently, there did not seem to be many issues in Shari’a that were off limits for the inquiries of fiqh.
Initially, what differentiated one school of law (madhhab) from another were methodological disagreements and not necessarily the actual determinations. Importantly, the founders of the schools of fiqh, and the early jurists in general, did not intend to generate binding legal precepts. Rather, acting more like law professors and legal scholars, they produced legal opinions and analysis, which became part of the available common law to be adopted by state appointed judges in light of regional customary practices. Legal scholars from the different schools of thought were often far more interested in hypotheticals that illustrated their analytical models and methodologies than in passing judgments on actual disputes. This is why fiqh studies did not speak in terms of positive legal duties or prohibitions but analyzed legal issues in terms of five values: 1) neutral or permissible (mubah/halal); 2) obligatory (fard/wajib); 3) forbidden (muharram); 4) recommended (mandub/mustahab); and 5) reprehensible or disfavored (makruh). Frequently, jurists wrote in probabilistic terms such as saying “what is more correct in our opinion,” referring to the prevailing view within the jurist’s school of thought (al-murajjah ‘indana). The critical point is that the masters of fiqh understood that they were not making binding law but issuing opinions of persuasive authority. The difference between fiqh and positive law was akin to the distinction between fatwa and hukm. A hukm is a binding and enforceable legal determination, but a fatwa (responsa) is a legal opinion on a particular dispute, problem, or novel issue, which by definition, enjoys only persuasive authority. Both fiqh and fatawa (sing. fatwa) become binding law only if adopted as such by a person as a matter of conscience or if adopted as enforceable law by a legitimate authority such as a state judge. In other words, fiqh and fatwa are normative legal proposals that are contingent on essential enabling acts or triggers: the conscientious acceptance of its mandatory authority by a Muslim practitioner or by an official adoption by a proper authority. Failure to appreciate this fundamental point about the construction and structure of the legal views expressed in fiqh works has led to a great deal of ill-informed and misguided scholarship about Islamic law.
One of the most entrenched myths about Islamic law is that the legal system ceased to develop or change from the 10th or 11th centuries because, fearing diversity and fragmentation, the so-called “doors of ijtihad” were declared to be forever closed. According to this claim, Muslim jurists were expected to imitate their predecessors (practice of taqlid) without undertaking legal innovations (ijtihad). This myth seems to have emerged in the 19th century as a simplistic explanation of the purported stagnation of the Islamic legal system and as justification for the legal reforms of the time, which in reality amounted to little more than the importation of European legal systems.[ix] More importantly, this myth persisted among contemporary scholars because of the paucity of studies on the micro-dynamics of Islamic law and because of the failure to properly understand some of the basic historical realities about the development of the Islamic legal system. For example, taqlid was not the instrument of legal stagnation; it was an important functional instrument of the rule of law. In general, taqlid stabilized the law by requiring continuity in legal application, and by creating a legal presumption in favor of precedents unless a heightened burden of evidence is met justifying legal change. Indeed, many of the most important developments in Islamic law were accomplished by jurists centuries after the supposed doors of ijtihad were closed.
The essential point about the Islamic legal tradition, and especially the role of fiqh, is that the juristic method and the linguistic practices of cumulative communities of legal interpretation became not only the mechanism for legitimacy and authority, but also the actual source of law. As a community of guilded specialists with an elaborate system of insignia and rituals, in most cases structured around a system resembling the Inns of Court in England, the jurists played a critical role in upholding the rule of law and in mediating between the masses and rulers.[x] However, the primacy of the juristic method and the organized guilds representing the various schools of law, contrary to some stereotypical claims, did not mean that the application of Islamic law became completely streamlined or simply mechanical and formulaic. Within a single madhhab, it was common for various juristic temperaments and philosophical orientations to exist because the established schools of law became the common platforms where conservative or activist jurists had to pursue their legal agendas or objectives. Within a single established school of thought, there could be conservative, traditionalist, rationalist, or equity-oriented trends, but each of these orientations had to negotiate its particular approach within the demands of the juristic method of the madhhab. Fundamentally, whether a particular legal orientation emphasized the use of the text, reason, custom, equity, or public interest, these tools had to be justified, channeled, negotiated, and limited by the juristic method.[xi] The point is not just that the juristic method became the prevalent mechanism for negotiating the tools and instruments of legal analysis but even more, the juristic method became Islamic law itself; it became the mechanism for negotiating not just the relationship between Shari’a and fiqh, but between the realm of God and that of humans, and ultimately, between the sacred and the profane.
The Sacred and Profane 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’a 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. Among these categories was the conceptual differentiation between ‘ibadat (laws dealing with matters of ritual) and mu’amalat (laws pertaining to human dealings and intercourses). In theory, all Islamic laws are divided into one of these two categories: ‘ibadat are laws that regulate the relationship between God and humans, and mu’amalat are laws that regulate the relationship of humans with one another. As to issues falling under the category of ‘ibadat, there is a legal presumption in favor of literalism and for the rejection of any innovations or novel practices. However, in the case of mu’amalat the opposite presumption applies; innovations or creative determinations are favored (al-asl fi al-‘ibadat al-‘ittiba’ wa al-asl fi al-mu’amalat al-‘ibtida’). The rationale behind this categorical division is that when it comes to space occupied exclusively by how people worship the Divine, there is a presumption against deference to human reason, material interests and discretion. Conversely, in space occupied by what the jurists used to describe as the pragmatics of social interaction, there is a presumption in favor of the rational faculties and practical experiences of human beings. Underscoring the difference between ‘ibadat and mu’amalat was the fact that the two were not only identified as distinct and separate fields and specialties of law, but it was also quite possible to specialize and become an authority in one field but not the other (fiqh al-‘ibadat or fiqh al-mu’amalat).
Beyond this clean categorical division, negotiating the extent to which a particular human act or conduct, whether it be public or private, primarily involved ‘ibadat or mu’amalat was not a simple and unequivocal issue. For instance, there were lengthy debates as to whether the prohibition of zina (fornication or adultery) or consumption of alcoholic substances falls under the category of ‘ibadat or mu’amalat, or alternatively, some mixture of both categories. Nevertheless, as in the case of the debates regarding the parameters of Shari’a and fiqh, although in principle there was a philosophical recognition that the spaces occupied by the sacred and profane require different treatments, in reality, it is the juristic method that played the defining role in determining the function of text, precedent, and rational innovation in the treatment of legal questions. Ultimately, 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 analyzed and determined.
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. 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. 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 (see above for a general discussion of the differences among the juristic schools of thought). 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.
Because of the reality of pluralist legal orthodoxy, in Islamic jurisprudence it is entirely conceivable even where Shari’a 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. 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.
The Rights of God and the Rights of Humans
Perhaps the clearest articulation in Islamic jurisprudence of the distinctive spaces occupied by the sacred and profane is the categorical differentiation between the rights of God (huquq Allah) and rights of humans (huquq al-‘ibad). Muslim jurists agreed that humans cannot benefit or harm God, and so unlike the rights owed to human beings, the rights of God do not involve any actual interests of God. Depending on the context, the word huquq (sing. haqq) referred to the province, jurisdiction, boundaries, or limits of God (hudud Allah). Interestingly, huquq al-‘ibad did not refer to public or common rights but to the material interests and benefits belonging to each human being as an individual. The rights of God do not need a protector or vindicator because God is fully capable of redressing any transgressions committed against God’s boundaries or commands. But unlike God, human beings do need an agent empowered to defend them and redress any transgressions committed against their person or properties. Therefore, the state is not simply empowered but obligated to enforce the rights and obligations owed to people and may not legitimately ignore or waive them away. The state was precluded from enforcing the rights of God because the state was not God’s representative and God had reserved these rights to God’s exclusive jurisdiction and province.
Muslim jurists clearly recognized the exceptionality and exclusivity of the sacred space and even jealously guarded it from the encroachments of the profane. Ironically, however, it is in dealing with the issue of God’s clear boundaries and limits that the jurists most famously collapsed the sacred and profane into a single space, at least in theory if not in application. In what is known as the hudud penalties, Muslim jurists asserted that there is a category of Divinely ordained punishments that apply to violations committed against a class of mixed rights (huquq mukhtalita), which are shared by God and human beings. As a category, mixed rights involve issues where the material interests or well-being of people is involved but at the same time, there is a discernable Divine Will staking a specific claim for the Divine over these issues. In the case of the Divinely ordained hudud penalties, for reasons not necessarily known to human beings, God purportedly not only explicitly determined the punishable act and the exact penalty but also the exact process by which the crime is proven and the penalty is carried out. Although not all the hudud crimes were mentioned in the text of Qur’an, a general juristic consensus was said to exist as to the Divine origin of the penalties. In the classical tradition, fornication or adultery (zina), robbery (sariqa), consumption of alcohol, defamation (qadhf), and apostasy (ridda) were the violations most commonly included within the hudud. The real paradox of the hudud is that while in contemporary Islam they are often imagined to be the harbinger and flagship of Islamic law, in the classical tradition, the hudud penalties were rarely applied precisely because of the space occupied by the Divine in defining and redressing the crime. On the one hand, by categorizing a crime under the hudud, the definition of the crime and the appropriate penalty became sanctified and immutable. But, on the other hand, by placing it within the category of hudud, the jurists effectively endowed the penalty with a largely symbolic role because the technical requirements and administrative costs of enforcing these sacred penalties were largely prohibitive. As with all matters involving the rights of God, as far as the state is concerned, it is imperative to tread cautiously lest in trying to uphold the bounds of God, whether through ignorance, arrogance, or incompetence, the state itself ends up committing an infraction against the Divine. Prophet Muhammad’s injunction, which was adapted into a legal maxim, commanded that any doubt must serve to suspend the application of the hudud. In addition to the presumption of innocence in application as to all criminal accusations, Muslim jurists often cited the injunction above in greatly circumscribing the application of the hudud penalties through a variety of doctrinal and procedural hurdles. In general, repentance, forgiveness, and doubt acted to prevent the application of the hudud. In dealing with the rights of God, it was always better to forgive than to punish; repentance of the defendant acted to suspend the hudud, and all doubt had to be construed in favor of vindicating the accused.
As far as the classical jurists were concerned, the hudud, like all matters implicating the rights of God, were better left to Divine vindication in the Hereafter. In most cases, instead of pursuing a hudud penalty, the state proved a lesser included crime under a less demanding burden of proof, and applied lesser penalties, normally involving imprisonment, some form of corporal punishment, banishment, or a fine. Lesser penalties for non-hudud crimes, or lesser-included crimes, fell into two categories: qisas (talion, or punishment in kind to the offense, ie. eye for an eye) or ta’zir (penalties prescribed by the state for offenses against public interest). Qisas was treated as a private recourse and right, where pardon or forgiveness was always preferable, but ta’zir were thoroughly profane punitive measures left to the authority and jurisdiction of the state applied to protect the public through deterrence. Classical Muslim jurists enunciated various principles regulating and restricting the powers of the state over ta’zir punishments. Fundamentally, however, while hudud punishments were greatly circumscribed, throughout Islamic history, what and how ta’zir punishments were applied greatly varied from one time and place to another.
By circumscribing the enforcement of the rights of Divine, the classical jurists of Islam constrained the power of the state to act as God’s avenger. However, doctrinally the rights of God, as a concept, played an important normative and ethical role in the Shari’a dynamics taking place within Muslim societies. The rights of God symbolically represented the moral boundaries of appropriate social mores and values in the public space. This does not mean, as some contemporary reformists have claimed, that the rights of God are equivalent to or substantially the same as public interests or space. Normatively, the Shari’a is expected to pervade the private and public spaces by appealing to the private consciences of individuals and to societies as collectivities. But there is one way this could happen and that is through voluntary compliance. For the most part, Islamic jurisprudence invoked the compulsory powers of the state in order to enforce obligations or rights owed to people—not to God. Functionally, Islamic law was thought of not as a means for empowering the state to act on God’s behalf but as setting limits to the powers of the state through the imposition of the rule of law. Therefore, the greater legacy of the Islamic tradition deals with questions involving mu’amalat or social intercourses and dealings or the resolution of conflicts arising from competing claims and interests. Questions of social etiquette or proper public manners were not treated in books of jurisprudence but were relegated to the status of moralistic pamphlets (kutub al-raqa’iq) written often by religious preachers or sometimes by qualified jurists for the consumption of the laity.
Modernity and the Deterioration of Islamic Law
With the advent of the age of Colonialism, the Islamic legal system was consistently replaced by legal systems imported from Western colonial states. The factors contributing to the deterioration and replacement of Islamic law are numerous but primary among those factors was the pressure exerted by foreign powers for a system of concessions and special jurisdictions that served the economic and political interests of the colonizers and a parasitical native elite that derived and maintained its privileged status from the financial, military, and cultural institutions of colonial powers. Throughout the Muslim world, this led to a protracted process by which colonial powers, or in the post-colonial age, local nationalistic governments consistently undermined the autonomy, and eventually completely controlled, the traditional legal guilds, not only depriving them of any meaningful political role but also deconstructing their very legitimacy in Muslim societies. Perhaps more destructive to the Islamic legal system was the fact that the institutional replacement of Islamic law was accompanied by a process of cultural transformation that led to the deconstruction of the very epistemological foundations of Islamic jurisprudence. The cultural impact of Colonialism upon Muslim societies was and continues to be immeasurable.
Predictably, as the 20th century came to a close and the 21st century began, the field of Islamic law suffered a crippling crisis of authority as Muslims struggled to re-discover the rules and criteria for defining the authoritative in modern Islamic law. The fact remains, however, that as a legal tradition Islamic law continues to carry considerable normative weight for millions of Muslims around the world, and also continues to influence, to one degree or another, the legal systems of a number of countries. The crisis of authority plaguing Islamic law today does not affect its relevance or importance. It does mean that Islamic law does not have the effective means for regulating the reasonableness of the determinations generated on its behalf or attributed to it. In the contemporary age, many voices speak in the name of Islamic law and the problem is that some of these voices are quite unreasonable.
[i] The classical juristic tradition is generally understood as Islamic jurisprudence from the 7th to 17th centuries.
[ii] Ṣ. Maḥmaṣānī, Falsafat al-Tashrī’ fī al-Islām: The Philosophy of Jurisprudence in Islam (Leiden: Brill, 1961), 172-175; M. Abū Zahrah, Uṣūl al-Fiqh (Cairo: Dār al-Fikr al-’Arabī, n.d.), 291; M. Zayd, al-Maṣlaḥah fī al-Tashrī’ al-Islāmī wa Najm al-Dīn al-Ṭūfī, 2nd ed. (Cairo: Dār al-Fikr al-’Arabī, 1964), 22; Y. Ḥāmid al-’Ālim, al-Maqāṣid al-’Āmmah li al-Sharī’ah al-Islāmiyyah (Herndon, Virginia: International Institute of Islamic Thought, 1991), 80; M. b. ‘Alī b. Muḥammad al-Shawkānī, Ṭalab al-’Ilm wa Ṭabaqāt al-Muta’allimīn: Adab al-Ṭalab wa Muntahā al-Arab (n.p.: Dār al-Arqām, 1981), 145-151.
[iii] A more historical translation for text would be matn or khiṭāb.
[iv] Maḥmaṣānī, Falsafat al-Tashrī’, p. 59; B. Abū al-’Aynayn Badrān, Uṣūl al-Fiqh (Cairo: Dār al-Ma’ārif, 1965), 322; Ṣ. al-Ṣāliḥ, Ma’ālim al-Sharī’ah al-Islāmiyyah (Beirut: Dār al-’Ilm li al-Malāyīn, 1975), 46; M. Hashim Kamali, Principles of Islamic Jurisprudence, rev. ed. (Cambridge: Islamic Texts Society, 1991), 285.
[v] Maḥmaṣānī, Falsafat al-Tashrī’, p. 200-202; A. b. Muḥammad al-Zarqā, Sharḥ al-Qawā’id al-Fiqhiyyah, 4th ed. (Damascus: Dār al-Qalam, 1996), 227-229; C.R. Tyser, (trans.), The Mejelle: Being an English Translation of Majallah-el-Ahkam-Adliya and a Complete Code on Islamic Civil Law (Lahore: the Punjab Educational Press, 1967), 8.
[vi] In jurisprudential sources this field is known as ‘ilm al-tarjīḥ or ‘ilm al-ta’āruḍ wa al-tarjīḥ or ‘ilm al-ta’dīl wa al-tarjīḥ – the field of conflict and preponderance or the field of balance and preponderance.
[vii] B.G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dīn al-Āmidī (Salt Lake City: University of Utah Press, 1992), 734-8.
[viii] J. al-Dīn ‘Abd al-Raḥmān b. Abī Bakr al-Suyūṭī, Ikhtilāf al-Madhāhib, ed. ‘Abd al-Qayyūm Muḥammad Shafī’ al-Bastawī (Cairo: Dār al-I’tiṣām, 1404 A.H.), 22-23; Y. Dutton, The Origins of Islamic Law: The Qur’an, the Muwaṭṭa’, and Madinan ‘Amal (Surrey: Curzon Press, 1999), 29; P. Crone and M. Hinds, God’s Caliph: Religious Authority in the First Centuries of Islam (Cambridge: Cambridge University Press, 1986), 86.
[ix] See W.B. Hallaq, Shari’a: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009).
[x] J. Makdisi, 'The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court' (1985-86) 34 Cleveland State Law Review 3-18.
[XI] M.S. AL-BŪṬĪ, ḌAWĀBIṬ AL-MAṢLAḤA FĪ AL-SHARĪ’A AL-ISLĀMIYYA (N.P.: MO’AMU’SAST AL-RISĀLAH, N.D.) 178-189; M.K. MASUD, ISLAMIC LEGAL PHILOSOPHY: A STUDY OF ABŪ ISḤĀQ AL-SHĀṬIBĪ’S LIFE AND THOUGHT (NEW DELHI: INTERNATIONAL ISLAMIC PUBLISHERS, 1989), 165, 174-175; W.B. HALLAQ, A HISTORY OF ISLAMIC LEGAL THEORIES: AN INTRODUCTION TO SUNNĪ UṢŪL AL-FIQH (CAMBRIDGE: CAMBRIDGE UNIVERSITY PRESS, 1997), 208.