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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 injunctions deduced from it? The injunctions explicitly derived from Quran and Sunnah do not matter equally in terms of their meaningfulness 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 analyze 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 sponsored 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 philosophy, 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 independent 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.

9 thoughts on “Stare Decisis in Islamic Law

  1. Erudite and yet concise. Impressive! I learned quite a bit from this piece.

    However, for a process of stare decisis to operate successfully and be independnet of state overrule, it would have to be a pan-Islamic “ijma” itself. In other words you would need the scholars across the Islamic world to subscribe to the same corpus of precedent, and agree to be bound by it. The logistics of this strike me as prohibitive, and still vulnerable to state manipulation.

  2. If Malik refused to make Muwatta binding and if Shafii restricted ijma’a to basic injunctions, why would you seek to extend its reach?

  3. Great post,
    The reasons that you mentioned causing the authority of Ijma to become limited only show that in fact Ijma and Qiyas are not primary sources of Islamic law. The four sources were grouped in that manner to represent admissible evidence when dealing with a legal issue. However with the latter two dependent on the first two, they can hardly be said to be primary.

    Some scholars of Usul, such as al-Tufi, explained the order of these sources in terms of nobility, not strength. In strength and proximity to certainty however, Ijma is rated #1, with the unambiguous texts of the Quran at #2. Reason being that Ijma cannot be abrogated while the Quran can.

    It would seem that your above presentation of Ijma would suggest that it does not reach a level of certainty in its transmission, which is extremely plausible especially in light of difference you mentioned.
    However, given the scale of Zann – Ghalabat al Zann – Yaqin presented in works of Usul, Ijmaa would by virtue of the number of authorities citing the same ruling given an induction based strength to that ruling (the ratio decidendi to your stare decisis) and providing us a with a high enough probability of truth to base judgement on.

    That high probablility would only be further strengthened by the fact that for Ijma to exist it must have either an implicit or explicit basis in the Quran, Sunnah, or a combination of the two. Now this would not seem necessary in light of explicit unambiguous texts. But with the Quran as Abu Darda said “Dhu wujuh” or multi-faceted in meaning, Ijma helps to determine the predominant meanings of that ambiguity, and prevent misinterpretation and interpolation of implausible meanings.

    Now as to your suggestion of redefining Islamic legal archtypes, one thing that Ijma does for us (and this is where I disagree with the analogy to stare decisis) is not so much give us a precedent to adhere to, but in more or less terms identify ratio decidendi of the ruling seperating it from the Obiter dictum attached to that ruling, which can at times carry very inaplicable connotations and impede progress in the application and understanding of Islamic law, especially when dealing with issues of custom and convention.

  4. Pingback: Stare Decisis, Islamic Law, Ijma’, and the formation of ‘Ilal « Islamic Law, Etc.

  5. “…1) Majority of classical jurists agree that for any consensus to become binding, there must exists an evidence (Sanad) from other sources…. [this] limits the possibility of personal or state sponsered opinions becoming binding on collectivity of Muslims…”

    If we are trying to limit the power of the state in sponsoring popular opinion and making it binding on the collectivity of Muslims, then to promote Ijma as stare decisis only furthers that state’s ability to control public discourse.

    When Ijma’ is formed on behalf of an independent body of Scholars, only then can it be determined to be acceptable an held by the courts in ruling for a specific case stare decisis.

    In this sense stare decisis is not like Ijma, but instead like IstisHab al-Hal, of which a component is IstiHab Hal al-Ijma.

    Another issue here is that Islamic law, is not merely positive law to be applied by the state on or against its citizens.
    The classical works frequently cite cases in which the Gov’t decrees an opinion, and that the Hukm made by the scholars or held personally by the citizen is in direct opposition to this Hukm.

    In this case, even though a particular issue of Ijma may not be taken as law by the state, it is still ethically binding on the individual. In fact, most issues of legality (whether based on Ijma or not) are binding at the individual level yet without state enforcement. State enforcement only comes as a reactionary solution to overall harm caused to the citizenry as a whole or in part and in very rare cases as a precautionary measure for anticipated harm.

    “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….”

    in general we should not set the “Ulama” or Islamic legal specialists as a straw man, and then knock them down because of some supposed need to proposition the state to enact change in Islamic law. (not saying that you were Abu Muhammad)
    When we look back at the classical works of Usul, we find that even the authors of such works differed as to the scope of Ijma, and as to just how social, intellectual, and political issues that are said to have reasched a level of consensus are to be understood .

    To echo the bottom line you stated above:
    To doubt that Islamic law is not as systematic and serious as thought to be without first understanding the scope of that legal system, its application and the conditions set for those rightly qualified people to practice it is not only abuse of Islamic law, but a perhaps better example of intellectual anarchy the the supposed misuse of Ijma.

  6. Assalamu Alay’kum,

    Aziz,
    Layth’s argument against Malik is on the same lines showing him the limitation of using precedents. That is also the reason why later Maliki scholars (and others) understand Malik’s concept as limited to the time of Companions.

    Charles,
    I am sorry for not being articulate enough but that was not the import of my entry to extend the principle of Ijma’a. In fact I have tried to show its limitation and the extent of disagreement it carries till it reached our times.

    Hood,
    …it does not reach a level of certainty in its transmission, which is extremely plausible especially in light of difference you mentioned[…]providing us a with a high enough probability of truth to base judgement on.
    Ijmaa is only transmitted in the books of schools. In that way, on close observation, most of the cited cases of Ijm’aa are either tacit or have strong basis in other sources, mostly the Sunnah of the Prophet; the fact that you mentioned just ahead. Your point that Ijma’a divorces the ratio decidendi of a ruling with an Obiter Dictum is enlightening.

  7. AS

    It is interesting that in this age much mention is made of the contentious nature of Ijma part in parcel I hold because there is a current aiming to revive the spirit of ijtihad so it is necessary to establish that what is considered a given may not have been the case. Secondly, the school of Imam Ahmad {r} is much more vocal today than what was the case given the backing from Saudi and thirdly because we have a new element in the equation and that is the school of Yemen. When Shaukani, Amir Sanaani, Imam Wazier and others took a shift in fiqh and turned towards ijtihad they brought a new dimension to the table and that was that what was considered established well may not have been the case.

    Despite all that there is a voice that is pushing for the validity of ijma today and argues that it is much more rampant that what is argued against. This voice is a bit weak. Likewise, with the orienatalist onslaught there is a tendency to make islamic law appear as a body with no semblence of order so many writers and authors in Western academia promote ideas that are not so “established” and are actually random like say for instance Imam Tufi {r} his ideas on maslaha are not the norm in the circle of Usul but we have Wael Hallaq devote a good portion of his book “Theories Of Islamic Law” to Tufi and there are other cases of such practice. This practice really is speaking about Islamic law without a school it is a random analysis that is more deconstructionist that it is historical.

    Ijma overall in its accepted form {overt} is qati not dhanni. From my studies of usul I have never heard that it does not give certainty the matter is in proving ijma. So I would hope that you can clear this aspect for me that ijma provides a probablity of truth.

    Maybe we can make that the case for ijma as suquti or tacit ijma bu this version of ijma is a matter of contention as you know. As far as the hanabli school for what I know of Shaikh Ul Islam ijma needs a “nas” or a text but in any event there is an overall agreement regarding ijma of the Sahaba post the companions is where the differences appear.

    In any case thanks for the effort of the blog nice and refreshing.

    AS

    Abul-Hussein
    Allahu Al’am

  8. An excellent discussion. I was a little intimidated when I spoke about this in my lecture recently (the one I posted a link to in my blog), but I’m glad to see you raise the issues and discuss them with far greater scholarship than I could ever summon. Jazakallah khayr. Svend and I always enjoy your posts.

  9. Pingback: Abdur Rahman’s Corner

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