Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

To effectively address the original Weberian objection i.e. normative pluralism is substantively irrational, it is mandatory to reformulate the problem in concise terms, starting point being that change in Islamic law takes place by means of some interpretive mechanism called Ijtihad. What exactly constitutes it: Is it the interpretation of the textual source ab initio; is it merely a pseudo-clandestine thought experiment to seek out verdicts on issues on which there is no past consensus among jurists; or is it merely a different solution to an old problem, but one which is in sync with contemporary social reality?

Irrespective of the particular theoretical inclination favored, there is no doubt that multiple norms will be generated in any interpretive undertaking; a fact which is amply observed by the term ta’addud al-ahkam in traditional Islamic literature. That this multiplicity of norms gives an irrational character to the law is the contention I am presently trying to analyze.

In my view, basis of this contention can be traced back to Islamic legal history and literature with some effort. After the post-recognition phase of Madhabs (the schools of Islamic Law), Muslims jurists increasingly found it hard to espouse the concept of Ijtihad “proper” through the medium of ifta’a, thereby limiting the response of an independent jurist to the ambit of his own juridical school. At times, some of these jurists resorted to quasi-artificial casuistic methods in order to achieve equity between presumed universality of complete legal paradigm, i.e. Sharia’h, and its practical manifestation when it comes to application of law to facilitate the functions of a society. Most of these casuistic developments – for instance Istihsan (Juristic Preference), Istishab (Presumption of Continuity), Urf (Custom) – in medieval times were arguably instigated by the desire to achieve a rational character of the law, thereby circumventing an almost subjective and probably mistakenly understood and emphasized universality of norms. And if all these developments and the enormous literary genre evolved from them achieved a kind of “practical wisdom” in line with social reality of times, it seemed rationally inconsistent to a modern critical mind.

But there is more to this discourse than casuistry acquiring a contemptuous nuance in Islamic law.

The Austrian-American jurist Hans Kelsen argued in his theories of legal positivism that all newly discovered norms must conform to the Grundnorm, a kind of hypothetical higher logical condition. The argument has been contextualized islamically in recent times, whereby many modern scholars** of Islamic law have argued that the Islamic moral expression “obedience to Allah” is an expression of the transcendental myth that fulfills the function of grundnorm in Islamic legal discourse.

There is no doubt that this remarkable proposition serves to make Sharia’h and natural law compatible; however, the real use of it lies in disentangling two confusingly snarled threads that modernity has brought to the fabric of Islamic law. On one hand, there is an increased proclivity for stringent applications of law in various spheres of public and private life. There are two contrasting shades of this tilt: 1) the literalist “text as norm” approach generally subscribed by the Islamists, liberals and revivalists alike (albeit not always erroneous intrinsically) and 2) a kind of “formal jurisprudence” employing all the tools of discursive logic, yet envisaging the use of universal principles and clearly pronounced norms. On the other hand, there is a resort to casuistry, most of the times employing specious argumentation that is clearly extended to achieve specific preconceived ends. In many cases, the latter can be observed in localized jurists muddled between knowledge and identity issues related to their respective communities.

Most of the modern readings of Islamic law generally fail to acknowledge these subtle distinctions but so is the modern jurist who remains strangled, on one side, between the pursuit of legal as well as ethical application of law in the society and the quest to achieve formalized rationality of jurisprudential method on the other.

To drive the point home, it can be concluded that social change and legal developments cannot be visualized to act in water-tight compartments rather the former triggers the latter in more than one ways. It is imperative to understand that norm-creating activity is a perpetual human-divine legislative process which is validated – without exceptions – by a Grundnorm revealed as a guiding authority for the independent jurist (mujtahid). At the same time, it is not necessary that the content of all the newly discovered norms must be implicitly found in revelation; rather, these are deduced through the science of Islamic legal epistemology, commonly termed as Usul al-Fiqh in traditional jargon.

In modern times Islamic legal developments are at a juncture where these cannot be technically characterized as formally rational (in the modern sense of the word); however, the characteristic modern reading of the law which imply that jurisprudential method of medieval times was substantively irrational is not correct either. In fact these developments – at that time – were meant to achieve a kind of normative pluralism which inadvertently harmonized the law with the social reality and worldview of those times. ____________________________

**For instance read Imran Ahsan Khan Nyazee, “Islamic Jurisprudence“; Ebrahim Moosa, “The Allegory of Rule (Hukm): Law as Simulacrum in Islam“

Related:

• Dynamics of Change in Islamic Law (I): Normative Pluralism
• Dynamics of Change in Islamic Law (II): Ifta’a, Ijtihad and Social Customs

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Series & Sequels, Sociology of Religion, Traditional Islam , Ijtihad, Islamic Law, Philosophy, Pluralism, Society, Sociology

Dynamics of Change in Islamic Law (II): Iftaa, Ijtihad and Social Customs

The “content” of any medium blinds us to the character of the medium.
[Marshall McLuhan]

In 1913, Mawlana Ashraf Ali Thanawi gave his famous juridical response to a British court in India. The seeker was a claimant who wanted to re-establish conjugal rights with his wife but his in-laws refused to let her join on the plea that she has apostatized and can no longer be his wife according to Islamic law. “Annulled”, wrote Thanawi while explaining that “unbelief causes annulment of the marriage contract and marriage of the claimant stands invalidated.“

During next seven years, the same fatwa was pronounced on ten different instances, albeit in marginally different contexts, by the same Mufti. However, in 1931, Mawlana Thanawi published an independent treatise dealing with the same issue at length and revised his previous opinion citing Maliki law as an authority instead of usual Hanafi law citations from al-Haskafi’s text or Ibn Abidin’s commentary.

Dr. Khalid Masud, in his paper on Apostasy and Judicial Separation in British India [included in this volume], analyzes the intricacies of these two fatwas (original and the revised one) at length and makes some interesting observations regarding social changes that took place between 1920 to 1930 in British India. He notes that the number of applications in the courts – seeking judicial separation from husbands – substantially increased in the span of these ten years. A large number of Muslim women were encouraged to declare themselves Christian and get their marriages dissolved by producing certificates of baptism.

According to Masud, situation became noticeable to an extent that some notable Muslim Scholars, for instance Dr. Iqbal in his famous lectures, questioned the validity of Hanafi law in this particular area and asked the Muslim jurists to exercise Ijtihad in order to reform the law. The debate triggered by these collective developments finally culminated into the revised fatwa of 1931, thus permitting the use of grounds in Maliki law – including husband’s impotence, cruelty or inability to maintain his wife – to dissolve a marriage instead of using apostasy as a legal device.

The normative shift in these fatwas, besides reflecting normative pluralism, also reflects another important dimension of legal change in Islamic Law: an almost inseparable construct of two mediums, i.e. Iftaa’ and Ijtihad.

Even though, many contemporary experts [1, 2, 3] of Islamic law argue that the terms ‘Mufti’ and ‘Mujtahid’ have been used interchangeably in pre-modern Islamic literature, it would not be entirely wrong to assert that fatwa still remains the primary medium of extending Ijtihad towards the society. For in actuality, it is only the Mufti (even today) who – inadvertently at times – creates and extends new legal norms to the level of positive law that works in a particular social construct.

It should not, therefore, sound surprisingly ‘liberal’ to a ‘traditionalist mind’ when a Maliki jurist from 14th century Spain, Abu Ishaq al-Shatibi, gives primary importance to social reality in his celebrated treatise on Islamic legal philosophy:

The rule is that you examine the given case in the light of Sharia. If it is correct according to the Sharia then consider its consequences in the conditions of its time and its people. If by its mention, your mind does not recall any evil then submit it to reason. If you feel that it will be accepted by reasonable people, then you may give your opinion in general terms if the case relates to a matter that is generally acceptable. If it cannot be generalized then give specific opinion. If the case in question does not accept this process, then it is better to keep silent; that would be more in conformity with the welfare of the people, legal as well as rational.

Having argued elsewhere, albeit not so eloquently, that Islamic law can be essentially experienced as a tradition of literature, I now use that observation to reassert that the available legal tradition – if hierarchically arranged and closely analyzed from primary texts (mutun) to commentaries / super commentaries (shuruh) to juridical responses (fatawaa) – can reveal a lot about normative pluralism in Islamic law and the inherent ability of law to perpetually adapt itself to the ever changing social conditions through well-knit and remarkably reasonable mediums.

concludes next…

Related:

• Dynamics of Change in Islamic Law (I): Normative Pluralism
• Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth
• Tradition of Literature

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Series & Sequels, Sociology of Religion, Traditional Islam , Ijtihad, Islamic Law, Philosophy, Pluralism, Society, Sociology

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 some 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…

Related:

• Dynamics of Change in Islamic Law (II) : Ifta’a, Ijtihad & Social Customs
• Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Series & Sequels, Sociology of Religion, Traditional Islam , Ijtihad, Islamic Law, Philosophy, Pluralism, Society, Sociology, Weber

Stare Decisis in Islamic Law

Ali at eteraz.org takes on Ijma’a, one of the primary sources of Islamic Law, best defined as the consensus of legal opinion. He raises many probing questions and pragmatically observes that

…in a Muslim country, the ijma of scholars means nothing unless the GOVERNMENT OF THAT COUNTRY is willing to execute their consensus. If a government doesn’t manifest the consensus, it matters nothing what the scholars are consensing about.

I have few thoughts to share regarding this entry.

For that matter, which source of Islamic law matters if state is unwilling to apply the injuntions deduced from it? The injunctions explicitly derived from Quran and Sunnah do not matter equally in terms of their meaningfullness vis-à-vis socio-political philosophy if a Muslim state procrastinates in confusion or do not feel it pragmatic to execute. Therefore the problem Ali poses may as well be expanded to engage all the other sources of Islamic law.

Having said that, I would add that it would probably amount to oversimplification if we think it sufficient to assume that Ijma’a is just a ‘consensus of scholars’ in the paradigm of traditional Islamic law throughout history. In my humble opinion, most of the questions Ali asked would boil down to ‘definition’ of a particular source (in this case Ijma’a) rather than its ‘application’. Definitions, as a matter of fact, do not remain absolute and may evolve and undergo reform in terms of making sense of the law which constitutes them in a particular time. Albeit some of us may yawn when others look at history of institutions, It would not be entirely wasteful to argue that understanding history of the development of law is a pre-requisite for any meaningful reform.

Shafii’s famous comment (in Kitab al-Umm) to counter his opponents that

What you possess is not Ijma’a (agreement) but iftiraaq (disagreement)…

is enough to suggest that Ijma’a is probably the most disagreed upon source of Islamic law. The disagreement, most of the times, is so harsh that many jurists (for instance al-Nazzam al Basri, the famous teacher of al-Jahiz) have explicitly denied it as a binding source. Those who consider it binding define it in different ways, continue dividing it into various types (e.g. explicit and tacit Ijma’a) and sometimes consider its inter-dependence with other sources. Malik, for instance, refers to the agreed practice of Madinites as al-amr al mujtamaah alaiyh, calls it a binding consensus and includes it in primary sources of Sunnah. Ahmed ibn Hanbal, on the other hand, regards anyone who claims a complete consensus of legal opinion as a liar but considers the consensus of Companions of Prophet as binding for later generations. Almost similar opinions have been related by Ibn Hazm, Ibn Taymiah and Shaukani. Shafii limits Ijma’a to such basic injunctions as obligation of five prayers, number of raka’ahs and obligation to perform hajj etc.

Most of the questions about nature, sources and jurisdiction of Ijma’a have already been asked by the classical jurists and discussed adequately by many of the contemporary scholars. There are two important facts that come forth if we analyse the gist of all these classical positions on nature of Ijma’a and its various claims throughout history. 1) Majority of classical jurists agree that for any consensus to become binding, there must exists an evidence (Sanad) from other sources and 2) Most of them find it practically impossible to know the positions held by entirety of scholars as they are scattered all over the world (as evident by the famous debate between Layth and Malik). Both these facts serve as limiting factors towards any possibility of establishment and claim of consensus upon a legal opinion. While the former limits the possibility of personal or state sponsered opinions becoming binding on collectivity of Muslims, the latter substantially limits the jurisdiction of Ijma’a by reducing it to very basic injunctions already derived from either Quran or Sunnah. The example of former is Malik’s refusal to establish Muwatta as a binding code for Muslims of all lands and the latter led Ahmed bin Hanbal and Shafii to reach their respective positions.

These jurists, in their times, were no less reformists, desperately wanting consistency and methodology in application of Islamic law thereby striving to achieve congruence between Islamic methodology and socio-political philosophy of their times. Few contemporary scholars that I have studied in detail and who are well-versed with the development of Islamic law, have dealt with an ever-important issue of defining sources in Islamic Law. Javed Ahmed Ghamdi, for instance, having been fully aware of the history of development of Islamic law, does not consider Ijma’a as one of the sources of Sharia’h. “There is no way to know that a consensus has happened about a legal opinion”, one of his students argues; precisely the problem that Shafii and Ahmed bin Hanbal raised in their times.

The bottom line is: The only way to reform Islamic law, so that it is completely reconciled with the modern political and social philsophy, is to figure out how our predecessors did it in the past.

The objective is indeed difficult and obviously requires contemporary scholars to once again (re)define categories of Islamic legal archetypes. A quick solution to the problem may be to understand binding of Ijma’a as demanding subordination to a rule upheld collectively by the highest legal forum of the land. Islamic tradition, in early stages, had already seen such a forum being confined to jurist Companions and later to the theoretical collectivity of independant jurists. In terms of English common law, it is something close to the doctrine of stare decisis and may well be the adherence of lower courts to the precedents set by full bench of the highest court in a Muslim country. It is needless to say that such precedents should be based upon workable Islamic theories of legislation, adjudication and compliance.

Filed under: Criticism & Comments, Ilm al-Ikhtilaf, Traditional Islam

Pope should not waste time reading all the people who wrote about Ibn Hazm; he should instead read Ibn Hazm.

If Pope’s evidence (the famous 14th century dialogue) to beef up his argument against Islam being a violent religion was fragile, flimsier was this allusion that Islamic teachings defy all the inherent reason in the universe. In fact, his remarks were pathetically blatant lacking sufficient concern for historical reality and an in-depth knowledge of Muslim philosophy. After reading the text of Ratzinger’s speech quite a few times, I am still perplexed regarding the line of his reasoning; namely that faith in an absolutely transcendent God whose acts and will cannot be grasped completely by human reason can possibly lead one to conceive His images which are capricious and may be against all truth and goodness. The argument becomes further ironic as Pope strangely chooses to abduce views of a multifarious Muslim writer who can equally be classified as a quasi-liberal writer/poet, a literal jurist, a controversial philosopher, an innovative grammarian or above all a compassionate ethicist.

Even scanty readings of Ibn Hazm would fail to portray him primarily as an absolute fatalist which Joseph Ratzinger was able to do inadvertently for his Christian audience with such an ease. The intuitive reason which Ratzinger calls creative and self communicating when combined with sound human perception and understanding of language is the first and foremost source of all human knowledge according to Ibn Hazm. It was one of his earliest projects to advocate a sound system of logic so that the revealed word of God can be defended without taking refuge in circular arguments. Times right before his were famous for determining value of logic as a means for attaining absolute truth. There were debates, for instance between Christian logician Abu Bishr Matta bin Yunus and the Muslim philologist Abu Said al Sirafi in early tenth century, resolving controversies whether logic is a form of universal expression or not. Ibn Hazm wrote extensively against the holders of extreme view of man tamantaqa tazandaqa (whoever practices logic practices heresy). In reposnse to his opponents, who objected with the counter-argument that early generations of Muslims did not resort to demonstrative argumentation and proofs rooted firmly in logic, he replied that they witnessed the revelation directly and were not exposed to contrastive beliefs.

An alternate undertaking in parallel was to refute the philosophers and theologians who elevated logic to a station where it can be used independantly as a means for attaining truth thereby superceding and replacing revelation. Many consider him as a pioneer in methodological rejection of hellenistic metaphysics of that time which was voiced by many Muslim philosophers with slight shifts in semantics. Here, the Pope is partially right as Ibn Hazm advocates an unbridgeable gap between the Creator and creation. However the underlying aim in Ibn Hazm’s discourse is not to establish that human beings are not responsible for their own actions by being submitted to Divine Will but to define a supreme station for God where there is no room left for speculations. Ibn Hazm achieves this with ease as he has the revealed word of God to fall back to, and which he uses as a touchstone to establish veracity of any claim regarding His ultimate nature.

Ratzinger however speculates erroneously when he hypothesize that Ibn Hazm’s God could have done everything against the truth and virtue. Ibn Hazm does not push his God away in order to grant him more divinity (as the Pope contends) but asserts that we cannot comprehend fully the particulars of God’s wisdom and will instead remain in need of His favours always. He pits these arguments against some of the Mutizilites who were presumably in favor of basing ethics on human reasoning, even at the cost of statements in the Quran. His often misunderstood contention that God can reward evil and punish good is completely subjective as he never claimed that God in fact does so. His contentions are rooted in a constantly recurring theme that humanity always needs objectively sustainable communication from the Creator as we cannot achieve salvation through reason alone. He and his God calls it the divine mercy and love, on which depends the destiny of all creation; and that is the only real analogy as far as Ibn Hazm is concerned.

Ibn Hazm can easily be misunderstood if his different positions are not disentangled carefully. Moreover his various intellectual stances can be put forth as an evidence for contradictory assertions. He tried all his life to bridge gaps between reason and revelation and describe the human condition and thought in relation to revealed word of God. His literature is depictive of human beauty and love of God. According to Ibn Hazm, we constantly need God to reveal us who He is, why He created us and what should we do and what we should not in order to attain His pleasure. It is one of His favors that He gave us the power to reason and contemplate both within our selves and with others. However all human contemplation, cogitation and criticism should take revelation as the starting point.

******

On a different note, I completely agree with what thabet has said and do share his feelings. Pope’s speech may have been full of inaccurate assertions and misreadings of Muslim theology (kalam) yet he has asked some challenging question which should be responded satisfactorily by contemporary Muslim scholarship. His major contention is that Islamic weltanschauung incorporates violence as a valid methodology and this world view is theologically rooted in the understanding of God’s nature and character. Why should these questions invoke anger, hate and murder instead of inciting positive and objective confrontation on intellectual fronts.

Among 20+ people that I have asked in the past week, none cared to read what Pope has actually said though they were aware that he has said something very wrong. A Christian member of Pakistan’s parliament who proposed the house to ask clarification from Vatican before passing a unanimous resolution of condemnation was forced to sit in protest. No major or minor newspaper (of Pakistan) took pains to translate and publish the entire speech or even its controversial parts. However none of them failed to make a great news story out of it. Its sad that Muslims of the world seems to be a big rabble lead by the pirates of intellect. Even sadder is the realization that there is still no light at the end of the tunnel.

Filed under: Criticism & Comments, Debates & Disputes, Ilm al-Ikhtilaf, Philosophy, Scholars, Traditional Islam

Is Quran a simple and straightforward document?

To say that Quranic language is completely devoid of any lexical ambiguities may lead one to infer that at least one interpretation can be claimed as universal. This would be a rendering which in principle can be accepted as absolutely monolithic if correct analytical tools are agreed upon by all. The argument can be extended to contend that one can reach the ‘true’ purport of an ayah primarily through literary methods. Ruminating whether one can be sure to discover this original intent and limning methods to substantiate authenticity of any such discovery is not my present objective. I just want to assert in this entry that Quranic language is partially polysemous and its not a very straightforward document to interact with.

This characteristic embedded in the very design of Arabic language should not be confused with two seemingly contradictory facts emanating from the Quran itself. One, that Its a perspicuous Book with clear verses of established meaning and two, that It contains firm (Muhkamaat) and ambiguous (Mutashabihaat) verses. Shah Wali Ullah presents an exposition of both these claims in al-Fauz al-Kabir fi Usual al-Tafsir. He lucubrates that when Almightly says in Quran that its a clear book revealed in Arbic proper with unambiguous and clear verses,

the intention is to avoid going deep into the interpretation of allegorical verses, in drawing the picture of realities of God’s attributes, in determining the doubtful and in the narration of stories in minuteness.

On the other hand firm vesres are those from which the masters of speech (ahle lughat) can take only one meaning while ambiguous are those which admit duality in meanings. An example of this are words employed which are common to two meanings for instance lamas[tum], which means both the sexual intercourse and as well as touching with hand. Another case is when there happens to be a possibility of both the copulative conjunction and commencement of new sentence; for instance the verse Wa ma Yala’m Tawilahu Illalah wa al-Raasikhun fil Ilm. Intersetingly, the import of Shah Wali Ullah’s explanation implies that the verse of Mukam and Mutashabih ayahs is itself abstruse and ambiguous to some degree. There are of course various other reasons, for instance different figures of speeches causing obscurities in text. Works on the language of Quran are full of such discussion and would perhaps move me later to dedicate a complete post. The present concern, as I have mentioned above, is regarding various interpretations of seemingly firm and unequivocal portions of Quranic text.

It has reached through various reports that even Prophet’s companions sometimes understood various verses differently. Anas narrates that Umar, while addressing from pulpit, mentioned fakihaatin wa abba (fruits and fodder) and said that we understand fakiha but it is very difficult to say what is ab’ba. Ibn Abbas narrates that he did not know about the meaning of faatiris samawat till two bedouins came to him with a dispute, giving him an indirect clue what that phrase might have meant. Suyyuti includes long lists of words and phrases with their meanings narrated from Dhahak and Ibn Abbas. Knowledge of connotations associated with different words is also necessary to help eliminate the ‘wrong’ interpretation. An important question is regarding the basis to know whether a particular connotation understood by the interpreter was originally intended or not. A valid example is Ibn Abbas’ (who is one of the major source of classical exegetes) inclusion of music while explaining phrases like lahw al-Hadith and wa antum Saamiddoon.

What then do we mean by agreed upon universals of language? What we must know in order to determine the reference of an expression? Is it legitimate to disregard and discard agreed upon historical interpretations using tools of linguistic and literary criticism only? Isn’t it true that what we choose to eliminate also has valid basis in language though not always in historical context of revelation? What is the correct priority of sources of understanding Quran? What comes first in Quranic hermeneutics – knowledge of language, tribal dialects and jahilia poetry or Hadith, context of revelation and understanding of Companions and their students? Is it a valid assertion that understanding of Quran would always remain evolving and there would always be room for new interpretations?

The fact that answer to these questions are multifarious and sometimes extremely complicated implies that Quran by itself is not a very straightforward document. Or perhaps it is more accurate to say (in the words of Fazlur Rahman) that Quran is as ’straightforward’ and as organically coherent as life itself.

Filed under: Ilm al-Ikhtilaf, Quran

Amal-e-Ahle Madina (3) – Imam Shafii’s Criticism

If Imam Shafii’s charge on the Medinese school has to be expressed with just one word, it would perhaps be ‘arbitrariness’ or more precisely, ‘inconsistency’. However the aim at present is not to ruminate over the entire significance of his criticism but just the aspect of relying over ‘practice’ rather than ‘traditions’.

Shafii’s case against Madinese is multidimensional and perhaps the most misunderstood partly because of its complexity and partly because he was the pioneer in laying down the foundations of Usul al-Fiqh. The latter though seemingly subtle is most telling because the reference to the problems of Usul (methodology) in his predecessors’ writings are occassional and peripheral as opposed to the thoroughgoing discussions that he has produced in his writings. The study of critcism directed at this alleged lack of method is apt to impair our vision unless we disentangle the different dimensions and set them against what is percieved as Medinese school in Shafii’s time. Only in this manner we might be able to visualise the lack of methodology in Medinese schools as a methodology itself.

I have already presented this beauteous simplicity of method in words of Malik and an equally uncomplicated riposte by a worthy contemporary. Its important to understand that Shafii’s criticism against the principle of amal-e-ahle Madina (practice of Madinites) is not against the practice of Madinites per se (which will obviously be understood as an intrinsic disapproval of practice if seen in the light of an equally important and strong case in favor of Hadith [1]) but against arbitrariness and inconsistency of approach.

In my opinion, major part of Shafii’s criticism against the practice of Madinites (as source of legal doctrine) should be seen in the light of his discussions of definition and validity of Ijmaa (juridical consensus) as a source of various rulings of Fiqh. However the times when this criticism should be seen as strengthening the case of Hadith is when Malikis prefer practice over Khabr-e-Ahad (a solitary hadith) and they always do so when both sources lead to diametrical conclusions. Keeping the discussion in the perimeters of Ijmaa, Shafii is found presenting his case repeatedly on two lines of reasoning. First and foremost is that a valid Ijmaa does not derive its cogency from the consensus of jurists of one region (Madina in this case) but becomes binding only if jurists of all the regions do agree about a ruling. Secondly, there are scholars from Madina disagreeing with the rulings regarding which Madinese bring the claim of Ijmaa as an evidence. This is the same line of reasoning which was used by Laith ibn Saad previously.

Even extending the discussion inside the realms of Hadith, it cannot remain uninvolved with the intricacies of Ijmaa. This is because Madinites according to Shafii cannot bring anything as a proof even when they are opining against an ahad hadith (a solitary tradition from Prophet) except a claim of consensus or a practice of some companion. On the other hand he brings argument after argument with amazing consistency to project their lack of method in deriving various rulings. Shafii’s critique is objective as his aim is not to bring about arguments in support of right doctrine but to lay down the right doctrine itself.

Pursuing the same aim, his predecessors (and especially Malik in this case) refered informally to variety of sources. Their attitudes were characterised by trust in respective doctrines whom they acknowledge as their authorities. For instance the doctrines of Ahl al-Raa’y (the people of opinion) and Ahl al-Hadith (the people of tradition). In Malik’s case this trust was specifically derived from the sacredness and continuity of ‘practices’ that constituted the Islamic way of life. As long as this trust remain unchallenged, no formal touchstones were required to test against and choose the particular source among many which ought to be made the basis of some legal ruling. However by the time of Shafii the scientific criticism on Hadith reached at a particular stage of development where it was not difficult for Shafii to insist about some overriding authority superceding all the other sources except Quran.

Therefore on the one hand subjective factors like intuitive conviction, commonsense, gumption and gut feeling about the veracity of a particular source were considered inconsistencies and arbitrary methods by Shafii. On the other hand agreed upon practice of a particular region, traditions from companions and all the claims of consensus were considered overridden in principle by traditions (in case of conflicts) which can be authentically traced back to the mouth of Prophet.
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1. As seen by Shacht for instance in his Origins of Muhammadan Jurisprudence.

Filed under: Ilm al-Ikhtilaf, Series & Sequels, Traditional Islam

Addendum to ‘Cosmopolitan Fiqh’ Post

In 1980, the Council of Islamic Ideology of Pakistan initiated the first comprehensive report comprising proposals for making the economy Shariah compliant with special emphasis on elimination of riba’a from the banking system. The report is considered by many as the first consensus-driven approach towards a combined ‘intrusion’ of pseudo-modernist and traditionalist scholarship into the realm of classical fiqh and far ahead (atleast in Pakistan). Though it is never taken as such by the religious circles, it can easily be understood as a valid conceptual attempt at exercising ijtihad in modern times.

This and many such attempts later cannot be circumscribed within the bounds of any traditionalist methodology. The content (which is coming up lately in copious amounts and would continue to expand quickly in future as well) do not belong to hanafi, shafii, maliki, hanbali, zaidi or ja’afri literature but equally belongs to a genre of ‘Islamic jurisprudence literature’. If these attempts are analysed in detail keeping traditional jurisprudential methodologies in perspective, it is not difficult to realize that though many opinions of the classical scholars pose difficulties to solve complex contemporary problems (especially in the fields of modern economics), there are as many opinions from the past which may lead us to smooth solutions as well.

One of the valid illustration of this inevitable as well as methodological ‘pick and choose’ approach is a comparison of opinions between Imam Abu Hanifa and Imam Malik in identifying bare minimum rights of people in relation to public law when they make promises among themselves and fail to keep those due to various reasons. The question in consideration is that how to quantify liability if a person promises to buy all the products of my factory and refuses when the products are manufactured. In pre-modern times it was considered impossible to assess minimum identifiable liabilities in such deals. Abu Hanifa held that such promises though considered binding by Shariah cannot be represented in a court of law in case one refuses to keep them. The justice will be served on the day of judgement as Allah has promised. Malik on the other hand asserts opposite and considered subjecting such a person to court of law with the condition that he completely understands the implications of his promise for instance an incurred financial loss to other party in case of dishonoring the terms decided.

It is needless to say that Abu Hanifa’s opinion doesn’t hold good as far as modern commerce & trade mechanisms are concerned. The process that begins from memorandum of association, continues through details of various forms of capitals that a firm requires and other nitty-gritties of corporate liabilities is a simple promise between two persons if we try to analyse it from the lens of a hanafi jurist. On the other hand Malik’s opinion, if considered in detail, may give us leads to exercise ijtihad in modern times when a usual promise may be one between a hundred thousand persons and a ‘fictitious person‘.

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Sociology of Religion, Traditional Islam

Cosmopolitan Fiqh

While traditionalists and reformists continue their indulgence in fiery encounters (all in good faith) and thabet wrapped it (and more) up concisely, haroon posted a comment worthy of deliberation and serious attention. The contents of this post are a result of some hasty thoughts that followed haroon’s cue but may not be directly linked to the problem he posed.

It would help if I reproduce the complete question here:

…is there a way to realize the traditionalist respect for the four madhahib and extend it to a legal framework that takes into account newer, serious developments in Islamic law and theology, including more modernist perspectives, Wahhabist perspectives, etc.

The question in a way presumes that the four orthodox legal schools derive their respect directly due to the legal consistency and historical strength of arguments behind their methodology. That may be true for a theoretic sake of traditionalist’s argument but historically speaking, people started practicing according to these four interpretations because of administrative reasons and by virtue of their being located in a particular setting where a methodology was formed up, evolved and subsequently presented later foundation for legal corpus. Thus for the sake of precision, it would be more accurate to say that development and evolution of fiqh (Islamic Jurisprudence) came about historically through conflicts rather than being a product of objective and tangible methods.

The realization (above) though elusive brings along a lot of theoretical baggage. A rather concrete point that can follow from this is that the jurisprudential sources of one legal school are no more an intellectual property of jurists of that school. Therefore a jurist of sub-continent may consider (and will certainly be compelled to do so in future) Asad bin Furaat’s Mudawanaa, Shafii’s Kitab al-Umm and Ibn Qudama’s al-Mughanni as much a jurisprudential source as he considers any of the texts/commentaries of Hanafi school of law. I do have a fair idea of the magnitutde of intircacies invloved in exercising jurisprudential preference (Tarjih) and alleged lack of consistency in method if jurists move out of their respective methodologies but what I am suggesting here is not simply a wild game of pick and choose rather an originating mindset that juridic literature would be taken as a whole in times to come due to various inevitable and practical reasons.

I mean how can one neglect encyclopedic efforts like al-Muhalla of Ibn Hazm and Fatawa of Ibn Taymiah just because their respective schools were not developed, evolved and sustained the test of time or seen as a digression from the content of four schools. The degree of depth in Islamic legal methodology and the number of dimensions in which it provides foundational sources cannot be ascertained completely unless the complete Islamic legal material would be taken as a whole and studied as such.

I contend this because the development of any modern Islamic legal system (encompassing all the modern facets of law and not just the quantity of water one should consume when doing ablution – though latter can be a good ethical source for guiding regulatory laws of our modern day consumption habits) cannot remain bounded in a particular school’s legal framework and would tend to build upon the collective fabric of Islam’s legal base. This development would again be historical due to inevitable circumstances rather than a composed and objective deliberate effort. The signs of such developments are already obvious in the fiqh of trade, commerce and banking and the current period may be understood and remembered in history as formative phase in the development of a Cosmopolitan Fiqh [1]. There is no particular way to imbibe this realization purposefully as it is already being insinuated through various intangible agents. However future historian’s analysis would bring about the true character of this formation.
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1. I came across this pithy term in transcribed lectures of Dr. Mahmood Ahmed Ghazi on various dimensions of fiqh.

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Sociology of Religion, Traditional Islam

Amal-e-Ahle Madina (2) – Argument against itself

I analysed the rationale behind Imam Malik’s reliance on Practice of Madinites as a juridical source in one of my previous entries. Skipping the extension and application of this principle carried out by Malik considering it to be a distraction from my present scope, I intend to furnish the basic argument against the use of this principle in this post.

Just a frugal look at Malik’s times can make a reader wise about the dynamics of jurisprudence being neatly dovetailed with regional tradition of opinions. An insight into the sources of these opinion can be a good exercise for yet another essay but it would suffice to say that my readings do not agree in general with the assertions of Schacht for instance, regarding the roots of these regional practices. The fact however, that juridic opinions in those times tended to distinguish the practice from region to region is fairly conspicuous. Opinions not only belonged to the regions but used to get famous by the cities which were the hub of knowledge in that region. Moreover cities were famous to station scholars who were considered to be specialists in a particular branch of theology.

For instance, Basra was more famous for discussions regarding beliefs and foundational impressions as compared to jurisprudence. Kufa was the center of Iraqian Fiqh (jurisprudence), primary source of which were the teachings of Ibn Masud (r) and opinions of Ibrahim al-Nakhai. Hammad bin abu Suleyman and Abu Hanifa carried this tradition forward. Damascus was famous for less reliance on Qiyas (analogy) or Istihsan (preference). The source of Syrian jurisprudence was primarily the athar (traditions) of Companions and their students. The dominating school in Syria belonged to Awzai and he was not a Muhaddis like Malik. Madina stood out uniquely among all these cities. It contained knowledge of Hadith, athar (traditions) of Companions and opinions of their students. To put it more incisively, Madina was the converging as well as originating point of Hadith, practice and opinions.

Fortunately the correspondence between Malik and al-Laith bin Saad, from which I have drawn previously as well, not only describes Malik’s deductive reasoning but equally illuminates the argument against it. Malik’s position was concise enough, enabling me to render it completely into English from the sources. The counter argument from Laith is a fine piece of literature as well as an excellent presentation of mannerism and respect among classical scholars even when their disagreements are too obvious. Its an extended response and can be found completely in Ailaam al-Muwaqieen of Ibn Qayyim. I would only try to transcribe the salients here in fear of making this entry too prolix.

Laith acknowledges the receipt of Malik’s missive, expresses his gratitude on this effective and sincere advice and explains the reason for opining against Malik’s decisions which are presumptively in complete concordance with practice of Madinites:

You have been informed about my legal opinions contrary to people of Madina. Fact of the matter is that I completely trust the opinions of those who have preceded me. I totally agree with what you have written regarding superiority of knowledge in Madina among cities. All the prior scholars are highly stationed and I have no objection over which their consensus is established.

Among the first of Muhajireen and Ansaar, who are the vanguard of Islam as you wrote, there were many who went away from Madina responding to the call of Jihad. They established their Halaqahs (circles for imparting knowledge) in different cities and people flocked there to learn the Book of Allah and Sunnah of Prophet. They exercised Ijtihad (independant reasoning) and gave decisions where they found no evidence from Quran and Sunnah. Abu Bakr, Umar and Uthman and those who were trusted by people (with rule) carried forward the same practice. These three caliphs were not going to abandon the community of Muslims, neither they were oblivious of their condition (prevailing practices). Rather they used to write regarding minutest of details in relation to religion and were instantly mindful if there were small diversions from the injunctions of Quran and Sunnah. Therefore they have not missed a ruling which was explained by Quran, practiced by the Prophet or discussed later. Whenever a matter came up which has precedence from practice of Companions, they sanctioned it, adopted it and never commanded to act against it. Hence we do not find it permissible for a group of Muslims to adopt a practice which was not practiced by Companions and their students. [I usually translate the word 'Tabieen' as Companions' students. I dont think second or third 'generation' of Muslims is always a right rendition].

However disagreements among the Companions is a certain fact too and they differed with each other in many cases. Let me write to you if you have no knowledge of these matters. After the Companions, their students differed a lot, for instance people like Saeed Ibn Musayyib. These differences continued to next generations and Ibn Shihab and Rabia bin Abdul Rahman are the leaders (leading examples) now a days.

I visited you (in the past), listened and grasped you position. I came to know later (when I met Rabia) that Rabia’s opinion is not in accordance with preceding opinions. His opinions were even against those who were considered people of ra’y (opinion as opposite to tradition in principle) in Madina, for instance Yahya bin Saeed, Ubaidullah bin Umar and Katheer bin Farqad. Finally you abandoned Rabia’s circle due to these differences. I discussed with you my concerns about these opinions (Rabia’s opinions) which I didn’t approve and you agreed. (Despite of that) It is an undeniable fact that Rabia enjoys good language, sound vision, exemplary conduct and love for his Muslim brothers. May Allah reward him abundantly for his efforts. I met Ibn Shihab also and there were many differences with him too. One of us wrote to him (later) and he explained his position from three different angles which is a proof of his well-grounded knowledge.

All these exchanges invited me to abandon which I did not consider to go against before. The underlying fault of my prior refusal was revealed to me as a result.

Laith continues to give examples hereafter regrading his various differences with Malik’s decisions. The first example is of combining two prayers in the night of rain. He reasons that Syria has high rainfall as compared to Madina and scholars of different regions never gave a decision to combine prayers of Maqhrib and Ishaa. He cites precedent from the conduct of Abu Ubaida, Khalid bin Waleed, Yazid bin Abu Sufyan, Abuzar, Saad bin Abi Waqas, Ma’az bin Jabal and many more from different regions. Some of the other examples (that he gives) are regarding decisions in court based on single witness, delaying the dower of women, the issue of Eelaa, Khutaba of Istasqa’a (prayer for rain) and mutual obligation of zakah on busines partners. He ends his letter with prayers for Imam Malik and asks him to continue giving him advices showing him the fallacies in his opinions.

Laith’s argument against practice of Madinites seems sound and unflawed. As shown above in his reasoning, he counters the argument using the practice and opinions of Madinites against themselves. The bottom line of his assertion is that its wrong to bound other regions by practice of Madinities even when there are different practices in Madina itself. The same contention was put differently by Shafii who said that the consensus of Madinite scholars is a prerequisite to any claim of consensus. The pivotal point of Shafii’s disagreement with Malik is again practice as a legal source, however there are few more dimensions to it which I would present in my next entry of this series, insha’Allah.

Filed under: Ilm al-Ikhtilaf, Traditional Islam