Dynamics of Change in Islamic Law (I): Normative Pluralism

In my view, the most important crisis that Muslim society miserably failed to handle during Islam’s sojourn into modernity is diversity. By diversity, I mean religious heterogeneity in any form, may it be the pronouncement of legal injunctions, opinions regarding societal norms or something as personal as individual religious practices.

Therefore, whether it is the abundance of contradictory fatwas on issues as diverse as women leading prayers to Muslims attending Christmas celebrations to Islamic prohibition of images to what constitutes death, Pakistani brothers arguing about the bare heels of a Chinese sister during Hajj or my grandma’s queasiness while watching me pray in a manner other than our family’s religious school, there is an invisible urge to see a kind of religious monism; a CONSENSUS based on an almost Utopian unity of intelligibility, opinion and action.

I would go as far as contending that pluralism, when it manifests itself in any of the above forms does not resonate well with the conventionally perceived absolute nature of religious discourse. And this perception, while breeding religious exclusivism and thus extremism, also undermines the true rationalistic nature of Islamic legal tradition.

One of the foremost reasons for this intellectual aversion to disagreement is the nature of Muslim law itself. While majority of traditional Muslim jurists – and I prefer to restrict my comment to Sub Continent as I am aware of someMax Weber exceptions outside – seem perfectly at ease with it, western legal sociologists have always struggled with the antinomies of permission and prohibition that exist for a single issue. Max Weber, for instance, while attributing these “variety of norms” to the irrationality of the law, stated:

The priestly approach to the law aims at a material, rather than formal rationalization of the law. The legal teaching in such schools, which generally rests on either a sacred book or a sacred law fixed by a stable oral or literal tradition, possesses a rational character in a very special sense. Its rational character consists in its predilection for construction of purely theoretical casuistry oriented less to the practical needs of the groups concerned than to the needs of the uninhibited intellectualism of the scholars – its casuistry, inasmuch as it serves at all practical rather than intellectual needs, is formalistic in the special sense that it must maintain, through re-interpretation, the practical applicability of the traditional, unchangeable norms to changing needs. But it is not formalistic in the sense that it would create a rational system of law.

Needless to say that these comments by Weber in Economy and Society generally pertain to any religious law and do not specifically consider the dynamics of Muslim positive law. However, while Weber scarcely commented on Islam (except of course his formulation of Kadijustiz), above analysis while comprehensively illuminating the problem of “variety of norms” as construed by the post-Cartesian mind also highlights the kind of confusion that still prevails regarding contextual literacies of the pre-modern Islamic legal tradition.

While some attribute this characteristic of variety of verdicts in Islamic law to quasi-irrational nature of Islamic law, others argue that normative pluralism has a perfectly established pedigree in Islamic law and that new norms are perpetually created and recreated through a perfectly reasonable process that is an intrinsic part of the law itself.

The key question thus, in my view, can be formulated in this way: When a jurisconsult – a mufti, mujtahid or a faqih more specifically – adjudicate according to new circumstances thereby adding to the already existing variety of norms, is it a symptom of irrationality of law, per se or the change thus driven can be attributed to some rational interpretive method called Ijtihad.

to be continued…

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14 thoughts on “Dynamics of Change in Islamic Law (I): Normative Pluralism

  1. Umar says:

    Interesting…. though I must say, with the exception of Shakespeare, I’ve rarely had to consult the dictionary so many times :)

  2. Salaams,Aasem

    Very profound and interesting stuff.

    My take on Ijma is a bit like that of the oft cited construct of the “Judeo-Christian Tradition”: It’s appropriate for many (perhaps most) matters, but on some very important topics it’s a huge oversimplification that in practice papers over complexities we’re uncomfortable grappling with.

    In the way it’s *popularly* understood, it’s an ahistorical myth that projects contemporary norms of rationality and science into the premodern past. That’s not to say there isn’t something to the construct–a higher unity in the process that transcends soemtimes mutually exclusive positions–but that’s not what most people mean when they invoke the concept.

    I think the incredible diversity of opinion that has existed among the ulama on tassawuf goes beyond “ikhtilaf” into the realm of *paradox*, at least so long as one is stuck with this simplistic, binary understanding of ijma. If ijma means consensus in the sense that it can be said to demonstrably exist and develop in science or modern law, then we DON’T HAVE IT in Islam, for all our fondness of medical imagery and legal metaphors when describing the workings of Islamic thought.

    If we mean it in a more fluid (and IMO far more interesting and ultimately useful) sense, we’re still in business. But I don’t think most Muslims today are ready to face these complexities (witness the abysmal intellectual level of mainstream debate over “shariah law” in places like Nigeria despite the presence and involvement of ostensibly qualified traditional scholars), being too entranced by binary Western norms of modernity.

  3. dawood says:

    I would have to say to that, though, Svend that Ijma’ as generally applied in thought and the ‘books’ (as it were) is generally a) a rhetorical device and b) retroactive.

    Specifically, the two main types of Ijma’ being al-ijma’ al-sarih (الإجماع الصريح), which is explicit and positive, when every mujtahid of an age gives their opinion on an issue and it is decided. But as anyone who delves in to Islamic history knows, this is very, very rare, and mostly from the ijma’ of the Sahaba (radi allahu ‘anhum). The most common one used, and the one most people talk about when they say that “there is ijma’ on this issue” is actually al-ijma’ al-sukuti (الإجماع السكوتي), which is known as implied consensus, and is looking backwards. This is when we look back through the scholars work, and can say “there is no known disagreement (ikhtilaf – الإختلاف) on this issue.” How many times have we come across this kind of statement in the books?

    I like how `Abd al-Razzaq al-Sanhuri (the famous Qanuni/Shari’a scholar from early 20th century Egypt) expressed his ideas on ijma’ as a tool for legal reform and application: “What is more democratic than to affirm that the will of the nation is the expression of the will of God Himself?” Of course, this is moving beyond mere rhetoric, and involving more than simply the `ulama’ in the process.

    Kamali discusses contemporary issues relating to ijma’ quite thoroughly in his primer on Islamic Jurisprudence. I specifically like the idea of the late Shah Wali Allah, who seemed to perceive ijma’ as having a more regional and local flavour rather than being binding on the whole of the Muslim community at one time. That is, apart from universal matters, ijma’ being used in a practical sense.

  4. Thank you Svend and Dawood for taking time to comment. Those were indeed some thoughtful points carrying a lot to chew. Jazak Allah.

    Umar, you are probably right and I am also understanding my limitations as far as good writing is concerned. But you do keep visiting and insha’allah your inputs would help me articulate my thoughts in a better way.

    wassalam

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