Routledge Handbook of Islamic Law (2019)

Routledge Handbook
of Islamic Law
This handbook is a detailed reference source comprising original articles covering the origins, history, the-
ory and practice of Islamic law. The handbook starts out by dealing with the question of what type of law is
Islamic law and includes a critical analysis of the pedagogical approaches to studying and analysing Islamic
law as a discipline. The handbook covers a broad range of issues, including the role of ethics in Islamic
jurisprudence, the mechanics and processes of interpretation, the purposes and objectives of Islamic law,
constitutional law and secularism, gender, bioethics, Muslim minorities in the West, jihad, and terrorism.
Previous publications on this topic have approached Islamic law from a variety of disciplinary and
pedagogical perspectives. One of the original features of this handbook is that it treats Islamic law as a
legal discipline by taking into account the historical functions and processes of legal cultures and the
patterns of legal thought.
With contributions from a selection of highly regarded and leading scholars in this field, the Rout-
ledge Handbook of Islamic Law is an essential resource for students and scholars who are interested in the
field of Islamic Law.
Khaled Abou El Fadl is the Omar and Azmeralda Alfi Distinguished Professor of Law at the UCLA
School of Law. He is the author of numerous books and articles on Islam and Shari‘ah, Islamic law and
Islamic jurisprudence. Among his books are: Reasoning with God: Reclaiming Shari‘ah in the Modern Age
(Rowman and Littlefield, 2014); The Search for Beauty in Islam: A Conference of the Books (Rowman and
Littlefield, 2006); Speaking in God’s Name: Islamic Law, Authority and Women (Oneworld Publications,
2001); And God Knows the Soldiers: The Authoritative and Authoritarian in Islamic Discourses (Rowman and
Littlefield/UPA, 2001); The Great Theft: Wrestling Islam from the Extremists (HarperOne, 2007); and
Rebellion and Violence in Islamic Law (Cambridge University Press, 2001).
Ahmad Atif Ahmad is Professor of Religious Studies at the University of California in Santa Barbara
(UCSB). He is the author of Islamic Law: Cases, Authorities, and Worldview (Bloomsbury, 2017), The
Fatigue of the Shari’ah (Palgrave, 2012), and Structural Interrelations of Theory and Practice in Islamic Law
(Brill, 2006). Professor Ahmad teaches courses on Islamic legal reasoning in medieval Islam and early
modern Egypt.
Said Fares Hassan currently teaches at al-Azhar University, Faculty of Languages and Translation,
Department of Islamic Studies, Cairo, Egypt. He received his PhD from UCLA in 2011. He worked as a
visiting assistant professor at Georgetown University in 2012; a visiting fellow at the Institute for I slamic
Studies (IAIN) Sultan Maulana Hasanuddin, Indonesia in 2014; and a visiting fellow at the Berlin
Graduate School Muslim Cultures and Societies, Freie Universität, Berlin also in 2014. His publications
include Fiqh al-Aqalliyyat: History, Development and Progress (Palgrave Macmillan, 2013) and ‘Law-Abiding
Citizen: Recent Fatwas on Muslim Minorities’ Loyalty to Western Nations’, Journal of the Muslim World,
October 2015. He has contributed a number of chapters to edited volumes such as Education and the Arab
Spring: Shifting Toward Democracy, (Sense Publisher, 2016), Christian–Muslim Relations: A Bibliographical
History, (Brill, 2016), and The Encyclopedia of Muslim American History, (Facts on File, 2010).
Routledge Handbook
of Islamic Law
Edited by Khaled Abou El Fadl,

Ahmad Atif Ahmad, and Said Fares Hassan
First published 2019
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 selection and editorial matter, Khaled Abou El Fadl, Ahmad Atif
Ahmad, and Said Fares Hassan; individual chapters, the contributors
The right of Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares
Hassan to be identified as the authors of the editorial material, and of the
authors for their individual chapters, has been asserted in accordance with
sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
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Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Abou El Fadl, Khaled, 1963-, editor. | Ahmad, Ahmad Atif,
editor. | Hassan, Said Fares, editor.
Title: Routledge handbook of Islamic law / Edited by Khaled Abou
El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan.
Other titles: Handbook of Islamic law
Description: New York, NY : Routledge, 2019. |
Includes bibliographical references and index.
Identifiers: LCCN 2018050285 | ISBN 9781138803176 (hbk)
Subjects: LCSH: Islamic law. | Islamic law—Methodology. |
Islamic law—History.
Classification: LCC KBP144.R68 2019 | DDC 340.5/9—dc23
LC record available at https://lccn.loc.gov/2018050285
ISBN: 978-1-138-80317-6 (hbk)

ISBN: 978-1-315-75388-1 (ebk)
Typeset in Bembo
by codeMantra
Contents
List of contributors viii

Notes on transliteration xiv
I
Approaches and the state of the field, Ahmad Atif Ahmad, Editor 1
II
What type of law is Islamic law? Khaled Abou El Fadl, Editor 11
Part I
Jurisprudence and ethics 41
1 Shariʿah, natural law and the original state 43

Ahmed Izzidien
2 ‘God cannot be harmed’: On H

․ uqūq Allah/H
․ uqūq al-ʿibād continuum 67
Wael Hallaq
3 Balancing this world and the next: Obligation in Islamic law

and jurisprudence 82
Omar Farahat
4 Divine command ethics in the Islamic legal tradition 98

Mariam al-Attar
5 Islamic law and bioethics 112

Ayman Shabana
v
Contents
Part II
History and interpretation: Scholars 125
6 The Qurʾan and the Hadith as sources of Islamic law 127

Amr Osman
7 The emergence of the major schools of Islamic law/madhhabs 141

Labeeb Ahmed Bsoul
8 Qadis and muftis: Judicial authority and the social practice of Islamic law 156
Delfina Serrano Ruano
9 Ijmāʿ, consensus 171

Ahmad Atif Ahmad
10 Superior argument 183

Ahmad Atif Ahmad
11 Maqā․sid al-Shariʿah 195

Felicitas Opwis
12 Legal pluralism in Sunni Islamic law: The causes and functions of

juristic disagreement 208
Ahmed Fekry Ibrahim
13 Interpreting Islamic law through legal canons 221

Intisar A. Rabb
14 Ijtihād and taqlı̄d: Between the Islamic legal tradition and autonomous
western reason 255
Sherman A. Jackson
Part III
History and interpretation: Society and politics 273
15 Legal traditions of the ‘Near East’: The pre-Islamic context 275

Lena Salaymeh
16 The place of custom in Islamic law: Past and present 286

Ayman Shabana
17 Jihad, sovereignty and jurisdiction: The issue of the abode of Islam 301
Ahmed Al-Dawoody
vi
Contents
18 Fiqh al-aqalliyyāt and Muslim minorities in the West 313

Said Fares Hassan
19 Family law and succession 324

Irene Schneider
20 Islamic law and the question of gender equality 340

Ziba Mir-Hosseini
Part IV
State and power 355
21 Islamic law and the state in pre-modern Sunni thought 357

Ovamir Anjum
22 Concept of state in Shiʿi jurisprudence 374

Amirhassan Boozari
23 Codification, legal borrowing and the localization of ‘Islamic law’ 389

Guy Burak
24 Modern Islamic constitutional theory 400

Andrew F. March
25 Islam, constitutionalism and democratic self-government 415

Mohammad H. Fadel
26 Terrorism, religious violence and the Shariʿah 428

Ahmed Al-Dawoody
Index 441
vii
List of contributors
Khaled ABOU EL FADL is the Omar and Azmeralda Alfi Distinguished Professor of Law
at the UCLA School of Law. He is the author of numerous books and articles on Islam and
Shari‘ah, Islamic law and Islamic jurisprudence. Among his books are: Reasoning with God:
Reclaiming Shari‘ah in the Modern Age (Rowman and Littlefield, 2014); The Search for Beauty
in Islam: A Conference of the Books (Rowman and Littlefield, 2006); Speaking in God’s Name:
Islamic Law, Authority and Women (Oneworld Publications, 2001); And God Knows the Soldiers:
The Authoritative and Authoritarian in Islamic Discourses (Rowman and Littlefield/UPA, 2001);
The Great Theft: Wrestling Islam from the Extremists (HarperOne, 2007); and Rebellion and Vio-
lence in Islamic Law (Cambridge University Press, 2001).
Ahmad Atif AHMAD is Professor of Religious Studies at the University of California in

Santa Barbara (UCSB). Author of Islamic Law: Cases, Authorities, and Worldview (Bloomsbury,
2017), The Fatigue of the Shari’ah (Palgrave, 2012), and Structural Interrelations of Theory and
Practice in Islamic Law (Brill, 2006), Professor Ahmad teaches courses on Islamic legal reason-
ing in medieval Islam and early modern Egypt.
Mariam AL-ATTAR is a lecturer at the American University of Sharjah. She obtained her
PhD in Islamic Ethics from the University of Leeds. Al-Attar taught courses on Islamic stud-
ies, philosophy and ethics at King’s Academy and the University of Jordan. After moving to
the Emirates, she taught courses in Arab Heritage, Introduction to philosophy, and Islamic
philosophy at the American University of Sharjah. She is the author of a monograph on
Islamic Ethics besides various book chapters and journal articles. Her research interests
include Islamic ethics, kalām, us․ūl al-fiqh, philosophy, bioethics and contemporary Arabic
thought. Prior to her academic career, she was a physicist working as a clinical scientist in
Jordanian hospitals and in the UK.
Ahmed AL-DAWOODY was born in Egypt and is the legal adviser for Islamic law and juris-
prudence at the ICRC. He also is a visiting professor at the Geneva Academy of International
Humanitarian Law and Human Rights in Geneva, Switzerland. Prior to joining the ICRC,
he was an assistant professor in Islamic Studies and Islamic law at Al-Azhar University in
Cairo. He was the Assistant Director of Graduate Studies for the Institute for Islamic World
Studies and the coordinator of the MA program me in Contemporary Islamic Studies at
Zayed University in Dubai, United Arab Emirates. He taught in Egypt, the USA, the UK,
the UAE and Switzerland. He has published more than two dozen articles and book chapters
on Islamic law and is the author of The Islamic Law of War: Justifications and Regulations (Pal-
grave Macmillan, 2011).
viii
Ovamir ANJUM is Imam Khattab Endowed Chair of Islamic Studies at the Department of
Philosophy and Religious Studies, University of Toledo. His work focuses on the nexus of
theology, ethics, politics and law in classical and medieval Islam, with comparative interest in
Western thought. His interests are united by a common theoretical focus on epistemology or
views of intellect/reason in various domains of Islamic thought, ranging from politics, law,
theology, falsafa and spirituality. He is the author of Politics, Law and Community in Islamic
Thought: The Taymiyyan Moment (Cambridge University Press, 2012). He is also near com-
pleting a decade-long project to translate a popular Islamic spiritual and theological classic,
Madarij al-Salikin (Ranks of Divine Seekers) by Ibn al-Qayyim (d. 1351) under contract with
Brill, along with two other book-length projects, one on violence in Islamic thought and
another a multi-volume survey of Islamic history.
Amirhassan BOOZARI is an Iranian independent scholar. He has an SJD (PhD in law) in

Comparative/Islamic Law from UCLA School of Law and an LLM in International Busi-
ness Law from Case Western Reserve University Law School. As an adjunct professor, he
has taught a variety of courses in Islamic law, Iranian and comparative constitutional law at
UCLA International Institute, UCLA School of Law and other law schools in the US. As an
attorney, he litigated cases in Iran up to the Supreme Court and was a legal adviser to the
Iranian parliament. He has authored a book, Shi’i Jurisprudence and Constitution: Revolution in
Iran (Palgrave Macmillan, 2011) and serves as an expert in foreign law.
Labeeb Ahmed BSOUL, Associate Professor at Khalifa University, received his BA and
MA in International Relations embedded firmly in the Middle East and Islamic World from
SFSU, and his PhD from McGill University. Among his many published academic articles,
book chapters and books are International Treaties (Mu‘ahadat) in Islam (University Press of
America, 2007), and Formation of Islamic Jurisprudence (Palgrave Macmillan, 2016), Islamic History
and Law (Palgrave Macmillan, 2016), Medieval Islamic World: An Intellectual History of Science and
Politics (Peter Lang, 2018), and a recent monograph entitled Islamic Tarjamah (translation) and
al-Muthā qafah (acculturation) and its Position in Human Civilization, under review.
Guy BURAK is the Librarian for Middle Eastern, Islamic and Jewish Studies at New York
University’s Elmer Holmes Bobst Library. He is the author of The Second Formation of Islamic
Law: The Hanafi School in the Early Modern Ottoman Empire (Cambridge University Press,
2015), which was awarded an Honorable Mention for the Fuat Köprülü Prize of the Ottoman
and Turkish Studies Association. He is also the author of several articles on Islamic law in the
Ottoman and post-Mongol periods. He is currently working on a monograph on the history
of Kanun in the Ottoman and the post-Ottoman Middle East.
Mohammad H. FADEL is Professor at the Faculty of Law, which he joined in January 2006.
Professor Fadel wrote his PhD dissertation on legal process in medieval Islamic law while
at the University of Chicago and received his JD from the University of Virginia School of
Law. Professor Fadel was admitted to the Bar of New York in 2000 and practised law with
the firm of Sullivan & Cromwell LLP in New York, where he worked on a wide variety
of corporate finance transactions and securities-related regulatory investigations. Professor
Fadel also served as a law clerk to the Honorable Paul V. Niemeyer of the United States Court
of Appeals for the Fourth Circuit and the Honorable Anthony A. Alaimo of the United States
District Court for the Southern District of Georgia. Professor Fadel has published numerous
articles in Islamic legal history and Islam and liberalism.
ix
Omar FARAHAT is an Assistant Professor at McGill University’s Faculty of Law. His

areas of interest include legal theory, comparative law, theoretical and theological ethics,
and religious forms of regulation relative to modern legal systems. His current research
centres on Islamic legal and moral theories, with a focus on the analysis of key concepts in
Islamic legal theory in conversation with similar debates in contemporary jurisprudence.
Farahat’s first book, titled The Foundation of Norms in Islamic Jurisprudence and Theology
(Cambridge: Cambridge University Press, 2019). Explores the role of divine speech as a
normative source in Islamic theology and legal theory. His work on Islamic legal theory
and ethics has also appeared in Journal of Law and Religion, Journal of Religious Ethics and
Oriens.
Wael HALLAQ is the Avalon Foundation Professor in the Humanities at Columbia Univer-
sity, where he teaches Islamic law, ethics and intellectual history. He is the author of more
than 70 scholarly articles, and his books include Ibn Taymiyya Against the Greek Logicians (Ox-
ford University Press, 1993); A History of Islamic Legal Theories (Cambridge University Press,
1997); Authority, Continuity and Change in Islamic Law (Cambridge University Press, 2001);
Origins and Evolution of Islamic Law (Cambridge University Press, 2005), and Shari’ah: Theory,
Practice, Transformations (Cambridge University Press, 2009). His latest work, Restating Orien-
talism was published by Columbia University Press in 2018, and his The Impossible State, also
by the latter press (2013), has won Columbia University Press’s Distinguished Book Award
for 2013–2015. Hallaq’s work has been widely debated and translated into Arabic, Indone-
sian, Italian, Japanese, Persian, Turkish and Urdu, among others.
Said Fares HASSAN currently teaches at al-Azhar University, Faculty of Languages and

Translation, Department of Islamic Studies, Cairo, Egypt. He received his PhD from UCLA
in 2011. He worked as a visiting assistant professor at Georgetown University in 2012; a visit-
ing fellow at the Institute for Islamic Studies (IAIN) Sultan Maulana Hasanuddin, Indonesia
in 2014; and a visiting fellow at the Berlin Graduate School Muslim Cultures and Societies,
Freie Universität, Berlin also in 2014. His publications include Fiqh al-Aqalliyyat: History, de-
velopment and Progress (Palgrave Macmillan, 2013) and ‘Law-Abiding Citizen: Recent Fatwas
on Muslim Minorities’ Loyalty to Western Nations’, Journal of the Muslim World, October
2015. He has contributed a number of chapters to edited volumes such as Education and the
Arab Spring: Shifting Toward Democracy, 2016, Christian–Muslim Relations. A Bibliographical His-
tory, 2016, and The Encyclopedia of Muslim American History, 2010.
Ahmed Fekry IBRAHIM is Assistant Professor of Islamic law at McGill University’s In-
stitute of Islamic Studies in Montreal, Canada. He holds a BA from al-Azhar University,
an MA from the American University in Cairo, and a PhD from Georgetown University
(2011). His research interests cover juristic discourse and court practice in both the for-
mative period of Islamic law and the post-classical Mamluk and Ottoman periods. In his
research, he seeks to explore the tensions between human rights discourses and some inter-
pretations of pre-modern Islamic law. He is currently working on two book projects that
have been supported with research grants from the Fonds de recherché du Quebec – Société
et Culture (FRQSC) and the Social Sciences and Humanities Research Council of Canada
(SSHRC). He is the author of Pragmatism in Islamic Law: A Social and Intellectual History
(Syracuse University Press, 2015), and Child Custody in Islamic Law: Theory and Practice in
Egypt since the Sixteenth Century (Cambridge University Press, 2018). He can be reached at
afekry@gmail.com.
x
Ahmed IZZIDIEN completed his studies at the University completed his studies at the
University of Cambridge with a degree in Theology and World Religions. He pursued his
research at Harvard with a focus on Social Contracts of the Middle East. He returned to
England to join the CIS at the Faculty for Asian and Middle Eastern Studies at the University
of Cambridge, where he worked as a visiting scholar. He researched implicit determiners of
early fiqh approaches to natural law. He then joined the CFLPP as a visiting researcher in
the Faculty of Law at the University of Cambridge, where he undertook studies on implicit
determiners of competing legal philosophies. He currently resides in Cambridge.
Sherman A. JACKSON is the King Faisal Chair of Islamic Thought and Culture, Professor
of Religion and Professor of American Studies and Ethnicity and Director of the Center for
Islamic Thought, Culture and Practice (CITCAP) at the University of Southern California.
He received his PhD from the University of Pennsylvania. And he is author of Islamic Law
and the State: The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄ (Brill, 1996), On the
Boundaries of Theological Tolerance in Islam: Abū Hāmid al-Ghazālı̄’s Fays․al al-Tafriqa (Oxford
University Press, 2002), Islam and the Blackamerican: Looking Toward the Third Resurrection
(Oxford University Press, 2005), Islam and the Problem of Black Suffering (Oxford University
Press, 2009), Sufism for Non-Sufis: Ibn ‘At․ā’ Allāh al-Sakandarı̄’s Tāj al-‘Arūs (Oxford Univer-
sity Press, 2012), and Initiative to Stop the Violence: Sadat’s Assassins and the Renunciation of Polit-
ical Violence (Yale University Press, 2015). He has also authored numerous articles on various
aspects of Islamic law, theology and history, and Islam and Muslims in modern America,
with a particular focus on Black America.
Andrew F. MARCH is a visiting scholar at the Middle East initiative at Harvard’s Kennedy
School of Government. His research and teaching interests are in the areas of political phi-
losophy, Islamic law and political thought, religion and political theory. His book, Islam and
Liberal Citizenship (Oxford University Press, 2009), is an exploration of the Islamic juridical
discourse on the rights, loyalties and obligations of Muslim minorities in liberal politics, and
won the 2009 Award for Excellence in the Study of Religion from the American Academy
of Religion. He is presently completing a book manuscript on the problem of divine and
popular sovereignty in modern Islamic thought, titled The Caliphate of Man: The Invention of
Popular Sovereignty in Modern Islamic Thought.
Ziba MIR-HOSSEINI is a legal anthropologist, specializing in Islamic law, gender and

Islamic feminism, and a founding member of the Musawah Global Movement for Equality
and Justice in the Muslim Family. She has held numerous research fellowships and visiting
professorships (most recently at NYU Law School); currently she is Professorial Research
A ssociate at the Centre for Islamic and Middle Eastern Law, SOAS, University of L ondon.
She has published books on Islamic family law in Iran and Morocco, Iranian clerical dis-
courses on gender, Islamic reformist thinkers, and the revival of zina laws, and most re-
cently the co-edited Gender and Equality in Muslim Family Law (Tauris, 2013) and Men in
Charge? Rethinking Authority in Muslim Legal Tradition (Oneworld, 2015). She co-directed two
award-winning feature-length documentary films on Iran: Divorce Iranian Style (1998) and
Runaway (2001). She received the American Academy of Religion’s 2015 Martin E. Marty
Award for the Public Understanding of Religion.
Felicitas OPWIS, Associate Professor of Arabic and Islamic Studies at Georgetown Univer-

sity, received her doctorate from Yale University. Her scholarship investigates the articulation
xi
of the religious sciences of Islam in their historical, social and political environment, focusing
on Islamic law. In addition to tracing the intellectual history of the concept of public interest
(maslaha) and the purposes of the Shari’ah (maqasid al-Shari’ah) in pre-modern and modern
times, her publications address authority construction within schools of law, legal change,
and whether or not a ‘reformation’ has occurred in Islamic law.
Amr OSMAN (PhD Princeton University, 2010) is Associate Professor of Islamic History in

the Department of Humanities at Qatar University. His research interests include the intellec-
tual history of Islam as well as modern and contemporary Arab politics and thought. His first
book, The Z․ āhirı̄ Madhhab (3rd/9th–10th/16th Century): A Textualist Theory of Islamic Law (Brill,
2014), examines the history and doctrines of the Zahiri school of Islamic law, engaging with
modern scholarship on ‘literalism’ and ‘textualism’. He has written articles in both Arabic and
English on the history of the redaction of the Qur’an, Muslim theology and political thought,
and the relevance of early Islamic history to modern politics in Muslim countries.
Intisar A. RABB is a Professor of Law at Harvard Law School and a director of its Program
in Islamic Law. She also holds an appointment as a Professor of History and as Susan S. and
Kenneth L. Wallach Professor at the Radcliffe Institute for Advanced Study. She has pub-
lished on Islamic law in historical and modern contexts, including the monograph, Doubt in
Islamic Law (Cambridge University Press, 2015), the edited volumes, Justice and Leadership in
Early Islamic Courts (with Abigail Balbale, ILSP/HUP, 2017) and Law and Tradition in Classical
Islamic Thought (with Michael Cook et al., Palgrave, 2013), and numerous articles on Islamic
constitutionalism, Islamic legal canons of constructions, and the early history of the Qur’anic
text. She holds a BA from Georgetown University, a JD from Yale Law School, and an MA
and PhD from Princeton University.
Lena SALAYMEH is Associate Professor of Law at Tel Aviv University. Her scholarly in-
terests are Islamic law, Jewish law, legal history, critical legal historiography and critiques of
secularism. Her book, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions
(Cambridge University Press, 2016) explores how historiography can illuminate Islamic legal
beginnings with case studies on prisoners of war, circumcision and wife-initiated divorce.
The book received the 2017 American Academy of Religion Award for Excellence in the
Study of Religion, Textual Studies. Her other publications deal with the relationship be-
tween Islamic law and Jewish law, as well as issues of law and religion in modern secular
states. Salaymeh serves on the editorial board of Law and History Review. She was a visiting
professor at École Pratique des Hautes Études. She earned her PhD in Legal and Middle
Eastern History from UC Berkeley and her JD from Harvard Law School.
Irene SCHNEIDER is Professor of Arabic and Islamic Studies at Göttingen University

(Germany). Her fields of interest are Islamic law (especially family law, penal law and pubic
law) in contemporary Muslim states (Morocco, Egypt, Palestine, Iran and Afghanistan); his-
tory of Islamic law; state and civil society in Muslim states; and gender studies and Islam in
Europe and Germany. She is the author of Women in the Islamic World (Markus Weiner, 2014)
and The Petitioning System in Iran: State, Society and Power Relations in the Late 14th/19th Century
(Harrassowitz Verlag, 2006) as well as of a wide range of articles on different topics. She is
currently fellow at Wissenschaftskolleg Berlin (2018–2019).
xii
Delfina SERRANO RUANO is PhD Tenured Researcher at the Spanish National Council
for Scientific Research (CSIC). She specializes in the history of Islamic law. In 1999 she pub-
lished a Spanish translation and study of Madhāhib al-h․ukkām fı̄ nawāzil al-ah ․kām, a collection
of legal cases compiled by the 12th-century Mālikı̄ jurist Muh․ ammad b. Ìyād․ . This collec-
tion reflects the activity as a qād
․ ı̄ and as a mufti of the author’s father, Ìyād․ b. Mūsà (Ceuta
1083-Marrakech 1149 CE) who is better known for his Kitāb al-Shifā’, a seminal biography of
the Prophet Muh․ ammad. She has also edited a collective volume on Cruelty and Compassion
in Arabic and Islamic Literature (Madrid: CSIC, 2011). Results of her work have appeared in
both Spanish and international academic journals like Al-Qantara, Islamic Law and Society, Der
Islam, Hawwa, Bulletin d’Études Orientales, Revue des Mondes Musulmans et de la Méditerranée and
Journal of Middle East Women’s Studies.
Ayman SHABANA is Associate Research Professor at Georgetown University’s School of

Foreign Service in Qatar. He received his PhD from UCLA, his MA from Leiden Univer-
sity in the Netherlands, and his BA from al-Azhar University in Egypt. His teaching and
research interests include Islamic legal and intellectual history, Islamic law and ethics, human
rights and bioethics. He is the director of the Islamic Bioethics Project, which has been sup-
ported by three consecutive grants from Qatar National Research Fund’s National Priorities
Research Program. In 2012 he received the Research Excellence Award at the Qatar Annual
Research Forum and during the academic year 2013–2014 he was a visiting research fellow
at the Islamic Legal Studies Program at Harvard Law School. He is the author of Custom in
Islamic Law and Legal Theory (Palgrave Macmillan, 2010) in addition to several academic jour-
nal articles, which appeared in Islamic Law and Society, Oxford Journal of Islamic Studies, Zygon:
Journal of Religion and Science, Hawwa: Journal of Women of the Middle East and the Islamic World,
Religion Compass and Medicine, Health Care and Philosophy.
xiii
Notes on transliteration
The transliteration system used in this Handbook is the one followed by International Journal
of Middle East Studies.
Transliteration Symbol Letter
ʿ ‫أ‬
b ‫ب‬
t ‫ت‬
th ‫ث‬
j ‫ج‬
h․ ‫ح‬
kh ‫خ‬
d ‫د‬
dh ‫ذ‬
r ‫ر‬
z ‫ز‬
s ‫س‬
sh ‫ش‬
․s ‫ص‬
xiv
d․ ‫ض‬
․t ‫ط‬
․z ‫ظ‬
ʾ ‫ع‬
gh ‫غ‬
f ‫ف‬
q ‫ق‬
k ‫ك‬
I ‫ل‬
m ‫م‬
n ‫ن‬
h ‫ه‬
w ‫و‬
y ‫ي‬
For long vowels:
ā ‫ا‬
ū ‫و‬
ı̄ ‫ي‬
Notes
• All technical terms from languages written in non-Roman alphabets must be italicized
and fully transliterated with diacritical marks (macrons and dots), for example, qas․ı̄d․a.
A technical term is defined as a word not found in Merriam-Webster’s Collegiate Dic-
tionary or a multiword phrase, excluding titles and proper nouns.
xv
• Words that are found in Merriam–Webster’s should be spelled as they appear there and
not treated as technical terms. These words become common to English readers. They
should have no diacritics, nor should they be italicized—for example, imam, mufti,
jihad, shaykh, ʿulama.
• Diacritics should not be added to personal names, place names, names of political par-
ties and organizations, or titles of books and articles. These words should be spelled in
accordance with the IJMES transliteration system but without diacritics. However, ayn
and hamza should be preserved in all these cases, and should be clearly distinguished
from one another.
• Personal and place names with accepted English spellings should be spelled in accor-
dance with English norms, for example, Yasir Arafat, Baalbek, Damascus. This rule
applies to cities of publication in citations.
• Follow English capitalization rules for transliterated titles; capitalize all major terms, but
not articles, prefixes, coordinating conjunctions, or prepositions.
• Use italics to indicate a book, newspaper, or periodical. Do not add diacritical marks, but
do preserve ʾayn and hamza (except for initial hamza, which is dropped), for example,
Faysal al-Tafriqa bayn al-Islam wa-l-Zandaqa and al-Diya ila Sabil al-Mu’minin.
• “Ta marbūt․a” is rendered /a/ not /ah/, except in Persian, where it should be /ih/. In Ar-
abic id․āfa constructions, it is rendered /at/.
• The feminine nisba ending is rendered /iyya/ (iyyih in Persian).
• Inseparable prefixes in Arabic are connected with what follows by a hyphen: bi-, wa-,
li-, and la-. When one of these prefixes is followed by al, the /a/ will elide, forming a
contraction rendered as wa-l-, bi-l-, li-l-, and la-l-.
• The definite article al- is lowercase everywhere, except when it appears as the first word
of a sentence or endnote.
• When an Arabic name is shortened to just the surname, the al- is retained; for example,
Hasan al-Banna becomes al-Banna.
• Connectors in names— such as bin, ben, abu, and so forth—are lowercase only when
preceded by a name, e.g. Osama bin Laden, but Bin Laden, Ibn Khaldun.
• Exceptions for the IJMES transliteration system due to common Arabic convention are
Shariʿah, ayah, Sunnah, Surah, Salah, Zakah, Ummah.
xvi
I
Approaches and the
state of the field
Ahmad Atif Ahmad, Editor
The editors of this volume are comfortable acknowledging that, since it is not the first, this
is ‘one more’ survey of scholarship in the field of Islamic law and jurisprudence. The editors
are also comfortable claiming that this volume is a corrective to omissions and imbalances in
existing publications in the field and an attempt to nuance its common interpretive lenses.
The term used to indicate our study field in the title (Islamic law), bowing to the conventions
of anglicization and academic practice, must be taken as a shorthand, pointing to an old and
living tradition of jurisprudence, religious and political laws, ethics and socialization. At the
hands of today’s academics, it is a subject, or a set of subjects, with a large number of entan-
glements. This volume’s explicit aim is to cover Islamic law’s multiple connections with the
hope that the reader will be able to take it as a starting point toward a more detailed inquiry
of its multiple parts and its intersections with other fields. The volume demonstrates that
scholars with interest in Islamic law are clearly interested in much more than Islamic law. The
impact of theory-shopping and method-shopping from other fields is considerable. Islamic
legal studies scholars do, to put it simply, read outside of their narrow area of specialization.
Whether scholars of other fields read Islamic law scholarship to the same extent is another
matter. We hope this volume will contribute to an acceleration of interest by non-Islamic law
scholars in this complex field that goes by the title Islamic Law.
Approaches and state of the field

When seen as ‘law’, what we call ‘Islamic law’ started as something of an academic en-
deavour in a small number of cities in the second/eighth and third/ninth centuries in the
Muslim world. Kufa and Baghdad in Iraq, and Medina in the western end of Arabia, were
paramount among the cities. A westward movement allowed cities such as Fustat in Egypt
and Qayrawan in Tunisia to make their mark on it, and a movement eastwards added con-
tributors from Balkh in Afghanistan and from Samarqand and Chach (Tashkent since the
fourth/tenth century) in Uzbekistan. Islamic law’s authorities also lived in Sicily (where
Abu ʿAbdillah al-Mazari (536/1141) grew up), Lisbon, Portugal, (where Ibn ʿAbd al-Barr
(d. 463/1071) served as a judge) and Qurtuba, Spain, where some of the greatest lawyer/
philosophers lived. Over a millennium after its inception, Islamic law engaged minds the
Ahmad Atif Ahmad
world over and continues, to date, to assert its status as the ‘common law’ of the Middle East
(as Chibli Mallat has it). In its distant and recent history, it interacted with old and new forms
of knowledge in areas as far apart as medicine, moral philosophy, economic sciences, history
and epistemology, and the sciences of government and modern legal sciences. The diversity
of contributors to this volume reflects the diversity of the subject and its potential, as opposed
to the particular proclivities of certain authors.
The academic field of Islamic law in the Anglophone world, as surveyed by the editors,
is too multi-directional to obey simple classification. Some participants in the field elect to
provide new interpretations of old institutions of Islamic law. These participants include
scholars who commit to the revamping of the Islamic legal tradition or adding to its substance
and scholars whose commitments lie outside of the Islamic legal tradition (e.g. in feminist
theory, European or American interpretations of human rights, statist, or Marxist or liberal
philosophies, among others). Other participants think of the historical doctrines of Islamic
law as ‘history’, plain and simple, while their use of modern language pushes them to provide
a modern interpretation for their historical material. There are academic contributors to the
field who think of ‘law’ in Islam as secondary to piety and religious devotion and those for
whom academic philosophy, anthropology and quantitative social science (of various types)
ought to govern our discussions of Islam and Islamic law. Furthermore, there are those who
are conversant with older (orientalist) European and American scholarship in the field and
those who are not. There are, moreover, contributions of ‘interdisciplinary’ postures, not to
mention many, many others (not represented in this volume) whose interest in Islamic law is
either coincidental or tangential. The full extent of representative academic contributions to
the field could not be encompassed in one volume. This volume provides adequate represen-
tation and aims to reflect the field’s diversity, however. The volume also makes an effort to
put side by side contributions by rising and mid-career scholars with those of seasoned schol-
ars whose contributions have already influenced new generations of specialists in the field.
The journey of Islamic law as an academic subject in the Anglophone world is long and
may by now merit an academic investigation in a separate volume. For our purposes, we
note that the field’s recent developments reflect a heightened degree of recognition that the
subject has been ‘mistreated’ in the European and American academy, despite good inten-
tions. A scholar of Islamic law today is able, though not all of them do it and not to the same
degree, to look at her or his subject unfettered by the ready assumptions of 19th- and early
20th-century modernity that assumed that Islamic law is a relic of earlier times, which has
only museum-like relevance in our time. The metaphor of ‘renaissance’ in certain academic
subjects often applies to stretches anywhere from 20 years to a century. It is not imprudent to
apply this metaphor to studies of Islamic law in the last two decades of the 20th century and
the two decades that are about to close in our current 21st century.
The current renaissance in the study of Islamic law is evidently not a mere reaction to
political events. It arises out of a broader acquaintance with the sources of the subject and at-
tempts to balance earlier approaches that forced the art and science of the law in Islam to sur-
render to external standards of scrutiny. This renaissance also stands on a broadening of the
field’s scope to attend to genres either underused or badly used in previous studies. Scholars
of the field now draw on sources of political and social history, Arabic, Persian and Turkish
literature that covers law amidst society, aesthetics, philosophy, and practical knowledge of
crafts, maps and information on medieval city planning, agriculture and masonry, medicine,
cosmology and mathematics.
This collection of 26 chapters is written from different stances and spans multiple styles.
Some chapters are clearly experimental, and others are more traditionally reflective of
2
Approaches and the state of the field
existing scholarship. Some authors think of their work as ‘innovative summary’ of the stan-
dard works, and others see it as a personal commentary. The Handbook is certainly not an
encyclopedia or a dictionary with the promise of repetitions and recapitulations of the exist-
ing literature. Authors reference their work in a manner approporiate to the literature with
which they are conversant. This involves endnotes, bibliography lists reflecting the sources
of their material and/or further reading lists.
In choosing representative contributions to this Handbook, the editors considered the na-
ture of the field of Islamic law as the editors understand it, as juxtaposed to existing practices
of scholarship in that field. Islamic jurisprudence, the art of legal reasoning and explanation,
is the able, invisible hand behind any legal doctrines in Islam, and ‘personal responsibility’
and the ‘nexus of worshipper and worshipped’ are at the heart of what distinguishes this ‘Is-
lamic law’ from all laws today. Abou El Fadl starts this volume with an introduction to the
key concepts and institutions of Islamic law, and in this context, he wrestles with the foun-
dational question of what type of law is Islamic law. Abou El Fadl contends that Islamic law
is not simply a set of normative commandments but a deliberative method of applied practical
reasoning. Fundamentally, Islamic law is an interpretive method of investigating the ways
that the Divine Will applies to the living interests of human beings. After this introductory
chapter to Islamic law as a field and discipline, the Handbook is divided into four sections. The
first section of this Handbook covers some of main themes of jurisprudence and ethics, im-
pressing upon the reader this law’s basic connections with concepts of ‘nature’, God as both a
source of his creation and simultaneously high and above it, and the main entanglements of
reason, natural law and obligation in this world and the next. After this section, the Hand-
book attends to a simple tripartite formula: The law in Islam is a product of scholars ( jurists),
applied in societies, affected by politics within and without society, and, finally, responsive
to state power. Despite overlaps among these areas, the volume’s chapters are organized, ac-
cording to this understanding, under four categories:
1) Jurisprudence and ethics

2) History and interpretation: scholars
3) History and interpretation: society and politics
4) State and power
The Handbook’s chapters
Part I
The first of the volume’s four divisions addresses an aspect that distinguishes Islamic law from
many comparable systems of law and moral instructions. This aspect encompasses debates in
jurisprudence on the nature of religious, legal and moral commitment in the Islamic tradi-
tion. Standing on a nexus between human nature, on the one hand, and moral and religious
obligation, on the other, obligation for believing Muslims has implications in this world and
the next. It appeals to an understanding of God as a lawgiver and a holder of rights, while
remaining distinct from His creation. Whether ‘divine command’ theory and ‘natural obli-
gation’ theory is adequate to explain the nature of Islamic reasoning is an open question for
one of the volume’s contributors.
Ahmed Izzidien opens this section with an inquiry that makes two steps, rather than
one step, backwards from legal reasoning (hence not standing at the door of theological in-
quiry, but) moving toward an earlier inquiry, that of first philosophy, where a human may
3
Ahmad Atif Ahmad
wonder what, where and why: What is this world; where is it; and why am I in it? This first
substantive chapter directs the reader to an often forgotten side of Islamic law as a law that
ties itself to the experience of a believer, rather than an individual subject, an emancipated
citizen, or a globetrotter. The author moves from epistemology to natural philosophy,
forward to ethics and the tenets of conscience, and backwards to doubt and reaffirmation.
At the level of this inquiry, some readers may think that we are at the gates of sufism or
natural philosophy. We can also think with Kalle Taneli Kukkonen, that these gates are
the same or proximate gates, as we note that Ibn Tufayl, the author of Hayy ibn Yaqzan
(Living, Son of Awake), cited Ibn Sina’s Eastern Wisdom as a model for the argument for
the unity of knowledge of God, nature and the self (Kukkonen, Ibn Tufayl, Oxford: One
World, 2014). The opening essay is, indeed, a caution against academic separations of these
areas of inquiry. Four more chapters in this opening section will confirm the thought of
interrelatedness.
Following this is a chapter by Wael Hallaq, who meditates on the concept of God’s
rights – a complex concept rarely dissected with erudition. Hallaq tackles what it means to
contemplate ‘harm’ to God – the one Being unaffected by the conditions to which the law
applies. If God is out of an equation of the law, it is no longer Islamic law, however. This
puzzle occupies the chapter’s author, reaching what is close to a satisfactory resolution only
when we realize that the modernity-imprisoned mind that keeps looking for equivalents for
God’s rights (in state rights, group rights, collective rights) and fails to see the rich threefold
nature of of ․haqq (Arabic for truth, right and God) will most likely need to be trained to sus-
pend many of its judgements for a fruitful engagement with the world of Islamic law.
Omar Farhat aims to provide what he takes to be an accurate, though in our eyes creative,
interpretation of how ‘obligations’ ought to be understood in Islamic legal reasoning. His
contribution, ‘Balancing this world and the next: obligation in Islamic law and jurispru-
dence’, strongly emphasizes the role of legal reasoning and directly addresses ‘obligation’
without confining it to considerations of politics, social standards, or national and transna-
tional institutions. For Farhat, the interest of humans is considered simultaneously against the
need both for order in an ethical and spiritual world and a universal teleology of humanity
and life. This complex consideration explains the central notions of ‘mas․lah․a’ (benefit, utility,
the common good) – about which we hear later when the purposes of the law are discussed
in the second division of the volume – as well as ties us back to Izzidien and Hallaq’s view of
the role of the divine in ascertaining the humanity of the human being.
The fourth of this section’s chapters is an ambitious treatment by Mariam al-Attar of
whether divine command theory (DCT) and natural law explanations are adequate tools to
understand obligation in Islamic jurisprudence. Attar’s answer is in the negative. This chapter
alerts the reader to how similarities between Islamic law and jurisprudence, on the one hand,
and other legal and moral systems, on the other, are not limited to modern views. Islamic
law is easily the oldest current, functioning legal tradition in today’s world (and if one bows
to the notion that Roman law is still alive today, it would be the second oldest). In its long
journey, Islamic law compared and contrasted to other (ancient, medieval and early modern)
systems of law and ethics. The notion of ‘submission’, often seen as an equivalent to ‘Islam’
itself, is explained here to show many rough edges. A Muslim submits to God, the world’s
nature, and his or her own nature in one act. This rich position leaves external attempts at
explaining ‘obligation’ in an Islamic world order bound to be inadequate. Leaning toward a
modernization of the existing Islamic jurisprudence, Attar suggests that it be moved closer
to social explanations and liberated from human-divine postures. On principle, the editors
leave this stand as it is, referring the reader to their own writings to allow her or him to
4
identify points of overlap and comparisons between the editors’ own views and those of the
authors of this collection.
A practicum concludes this first section, one that considers both pre-modern and modern
contributions by Muslim jurists to the dilemmas of ‘bioethics’. Ayman Shabana starts this
chapter by emphasizing the modernity of the term (bioethics) and its open-ended character.
At the bottom of the analysis is a recognition that medicine offers: 1) the potential of over-
coming some of nature’s vagaries and defects as it applies to the human body; and 2) a para-
dox for the human intellect, which recognizes that humans are not well-positioned to heal
other humans on their own. In practice, all know that medicine fails even as it succeeds, but
the human weakness and hope for an amelioration of their condition and a removal of their
physical suffering conspire to make them ready to bow to medicine’s authority at all moral
and spiritual cost. Islam does recommend medicine and applauds its practitioners, but it is
also mindful of its limits. Shabana views the proliferation of fatwas on bioethics as a welcome
addition to the texture of an already rich field. His chapter wraps up one of the field’s pillars
(the personal side in Islamic law) and segues to the next division, which covers the authorities
of Islamic law, shifting the volume toward a historically and theoretically bent presentation
of Islamic law’s scholars.
Part II
Recognizing the simple fact that the Qurʾanic revelation and the Prophet’s example were the
umbrella under which Islamic law operated, the rubric ‘History and interpretation: scholars’,
opens with a chapter on how the two textual sources (Qurʾan and Sunnah) were addressed by
the authorities of the law in its early days. In this chapter, Amr Osman provides a complex
treatment of how these texts could be both a good starting point and often a misleading in-
dicator of what the law is from certain jurists’ viewpoint. This chapter is followed by Labeeb
Bsoul’s treatment of the schools of law, the madhhabs, also focusing on their early beginnings
and characteristic qualities. Delfina Serrano Ruano’s chapter on ‘Qadis and muftis’ follows
these two contributions, providing a description of institutionalized authority in society that
both relied on the authority of the schools of law, discussed by Bsoul, and asserted its com-
mitments to the values instilled in the textual sources discussed by Osman. Ruano, however,
makes an extra trip away from the judges and muftis (producers of the law) themselves in the
direction of describing the evolution of the institutions of adjudication and iftāʾ. It becomes
clear that judges and muftis played the double role of being community leaders and conflict
resolution experts as well as functionaries of the pre-modern states in which they lived.
Ruano also allows a few descriptive comparisons between these institutions in pre-modern
times and their equivalents in the modern centuries.
In two chapters, titled ‘Consensus’ and ‘Superior argument’, Ahmad Atif Ahmad attempts
to cover juristic agreement and disagreement from multiple angles. Ahmad understands con-
sensus to be a tool to establish a core for juristic knowledge and conversation. Scholarly
consensus, by itself, must be taken only as an indication of a presumptively correct response
to a human condition, which, when subjected to change, affects the consensus itself. Ahmad
also understands disagreement to be natural and a result of human reflection, but he thinks
that many modern discourses have exaggerated the value of every individual’s standpoint to
satisfy a (mostly theoretical) fear of ‘hegemony’ over the individual. In the real world, there
are good and bad arguments. Bad arguments do not stand the test of time. They work for a
while, and then they fail. Only arguments that take into account the human long-term need
to be reconciled with one another. The discussion in Islamic theoretical jurisprudence of
5
Ahmad Atif Ahmad
tarjı̄h․ (determining the superior argument) shows medieval jurists’ interest in discussing ar-
guments in a cosmic and universal format, to be distinguished from modern discussions of
tolerance and consensus-building in a purely pragmatic worldview.
Employing a strict historicist approach to the subject, a classic presentation by Felicitas
Opwis of the question of ‘the purposes of the law’ – the maqasid – in the Islamic tradition
follows. Professor Opwis is an erudite scholar, combining early training in Germany and
a subsequent training and long career in the United States, who is engaged with both the
European and American scholarship in Islamic law. She is also a close and attentive reader of
medieval and modern Arabic juristic texts. In her presentation, she aims at a faithful interpre-
tation of both the pre-modern and modern conceptions of the purposes of the law in Islam,
uncovering how the social, the political and the organizational elements of the law are always
in the background of legal reasoning.
Ahmed Fekry Ibrahim then attends to the question of jurists’ disagreement and legal plu-
ralism. While his chapter touches on the role of state and power and their influence on legal
reasoning, his focus remains ‘the scholars’ who are simultaneously the producers of the law
and their internal critics. This chapter’s themes overlap with the earlier chapter on ‘superior
argument’, but Ibrahim’s treatment considers theological and epistemological commitments
of jurists from the angles of public knowledge and addresses a reader who inhabits the mod-
ern view of pluralism and takes it more seriously.
In the next chapter, Intisar Rabb discusses a central aspect of the legal reasoning of schol-
ars, the formulation of legal canons. Like canons of statutory constructions (discussed, for
example, in Theodore Crawford’s The Construction of Statutes), these canons are abstract,
generalized principles that are supposed to aid the scholar in devising laws. Unlike these can-
ons, however, legal canons in Islamic legal reasoning are ‘reductive’ statements of aggregated
legal doctrines and hence subsequent to legal doctrines (even though they are employed by
new jurists as points of entry to legal reasoning). Islamic legal canons are also considered only
‘generally true’ – allowing room for exceptions to attend to what distinguishes aberrant and
grey-area cases.
This rich section is concluded with a contribution by a veteran scholar of Islamic law,
whose early work on the 13th-century Maliki Cairene, Qarafi, examined the connections
between scholars, public and social knowledge, and the state. His contribution to this volume
is a dialogue with the presumptuous posture of enlightenment, ‘reason’, and an assessment of
the negative cost it inflected on the Islamic legal tradition in its modern incarnation. Jackson
makes a forceful argument for the right of the Islamic legal tradition, seemingly taken for
granted by other philosophical and religious traditions, to understand its basic tools, such as
reason, meaning and view of the world and its priorities, without having to make constant
efforts to meet others halfway.
Part III
Just as there would be no Islamic law without its scholars, there would be no law without
a society that accepts, and at times, resists and complements the work of the law’s scholars.
Islamic law appeared in diverse societies across a vast array of historical moments. This third
section of the Handbook starts with the societies that hosted Islamic law’s beginnings. In what
environment did Islamic law take its early forms? asks Lena Salaymeh, providing a pan-
oramic overview of controversial possibilities of what traditions or sets of ideas and practices
‘influenced’ Islamic law or, in the writing of some scholars, shaped its parameters from the
start. Salaymeh’s early work has argued that identifying a Near Eastern (social, moral and
6
political) context modifies the question of influences into a more sophisticated and meaning-
ful inquiry about the law’s early environment. The historical depth of this environment cov-
ers ancient Egyptian, Persian and Mesopotamian (Hamurabi’s code, most famously), Greek,
Syriac and Roman traditions as well as the more communal and less geographically dominant
Jewish law. The Islamic tradition of theoretical jurisprudence (us․ūl al-fiqh) has preserved early
discussions about the sense in which Islamic law is meant to incorporate earlier practices of
religious traditions that Islam as the final revelation is meant to scrutinize and complement
(according to a religious doctrine Muslims have). This question, addressing the authoritative-
ness of the laws of those who came before (sharʿu man qablanā), leaves to us non-controversial
practices such as animal sacrifice in the time of pilgrimage as well as practices about which
jurists disagreed, such as whether the length of a hiring contract may be left undetermined
until a later stage in the hiring.
Ayman Shabana then provides a history-conscious, yet broadly theoretical, treatment of
how social laws are considered as part of the Islamic legal tradition. It may be surprising to
many to learn that Muslim legal theorists and theologians thought about parallels between
natural and social laws, or laws of nature and laws of social interaction, and measured both
against what they took to be stable norms of Islamic law. Shabana offers cases and legal sce-
narios from the formative period of Islamic law, modern time, and times in between. His
chapter, overall, prepares the way for the subsequent four chapters, which cover the questions
of war, Muslims living as a minority, family law, and modern reflections on males and fe-
males in legal and moral life in Islam.
If Shabana’s chapter covers a Muslim’s interpretation of social and natural laws as the laws
of Islam are augmented and developed, Ahmed Al-Dawoody attends to ‘jihad’, a term of
unusual misfortune, truth be told. It is in the eye of the beholder, Dawoody exclaims, but it
is also a term with a history and a term with connections to other terms, such as jurisdiction
and sovereignty. Its simplification, whether deliberate or just an honest mistake of necessity,
is a target for the chapter. When seen in the usage of those who bothered to think about it,
it is an element of social and political life in Islam. Exercising ‘ jihad’ is both a source of con-
structive and destructive energy. It is, in any case, much more than its common understand-
ing permits and much less of an unusual practice among nations that live with a moral code.
The commonality of ‘emigration’ – reckoned to be an exception rather than a rule –
prompts Said Hassan to attend to what came to be called ‘ jurisprudence for minorities’.
A strong strand in the pre-modern Islamic legal tradition (not limited to Hanafi jurists)
acknowledged that a Muslim’s life as a minority could not be burdened by the same ex-
pectations given to a Muslim living among a normal, Muslim community. In an age of
global shifts, tosses and turns, drawing on the old tradition became a necessity, rather than
a luxury, in order to provide new norms for a large number of Muslims now living without
the standard support of social networks and Islamic mores. New limits are now imposed on
geographical borders (important for the abodes theory, where the world is divided based
on moral Muslim norms and government support for them) and even modern (17th–20th-
century) notions of territoriality. This chapter allows the reader to understand Islamic law’s
treatment of a subject, which is bound to appear mysterious to a (Weberian-type) spectator
with no comprehension of how Islamic legal reasoning built its own limits to allow itself to
function without breach to reason and practical considerations.
Irene Schneider and Ziba Mir-Hosseini, to conclude this section, investigate family law
and male–female interaction under the umbrella of Islamic law past and present. These two
chapters allow the reader to juxtapose different versions of justice, equality, what is practical
and what it not in human affairs, and the frictions of ideals and realities. The chapters also
7
Ahmad Atif Ahmad
point to an inevitable limitation that accompanies ‘Islamic law’ as a discourse and as a hu-
man exercise. The producers of the law are, from an important and neglected angle, not
that different from the practitioners of medicine whose limitations are brought to relief by
the theologians and the scholars of the law. That is, jurists will simply fail to diagnose and
prescribe to human nature to fulfil its social potential the way medical doctors fail to address
the human body’s need for a full life. These two chapters conclude the third section, leaving
the final section to a discussion of ‘state and power’.
Part IV
This last section begins with an experimental chapter by Ovamir Anjum, cutting to the
bare chase of the questions of authority in Islamic political life. Anjum’s chapter reflects a
double investment, one in modern sociological approaches to questions of power and one in
a textualist view of Islamic law that harkens back to its revelatory and prophetic elements as
recovered by moderns. This chapter does remind readers who follow the volume’s progres-
sion of links between the sources of the law and political theory and practice and between the
pre-modern traditions’ richness and attempts to capture it and absorb it in a limited number
of principles and maxims.
Amirhassan Boozari then provides a view of the state in the modern shiʿi experience,
which not only built theoretical temples of possible Muslim nation-states, but provided one
of the modern world’s most important political developments, the Iranian revolution of 1979.
Boozari argues for a cooperativist view of modern Shiʿi law and politics that blends law and
political authority in a clearly modern sense. This is a sense that is thus far unknown in the
Sunni world, which mostly knew of competitions between traditionally trained scholars,
political Islamists, and those on a broadly modernist spectrum. The relationship of the jurist
(qadi, mufti or a holder of any other public wilayā or jurisdiction) and government is a central
theme in this section, starting from Amirhassan Boozari’s chapter onwards.
Guy Burak’s scholarship endeavours to resolve a historical puzzle: Why do the boundaries
between the two institutions of ‘judges’ (or qadis) and ‘muftis’ – as inherited in the modern
centuries – seem uneven and at times unclear in certain geographic regions. His research
took him to the early modern centuries and especially to the Ottoman world. His chapter,
‘Codification, legal borrowing and the localization of “Islamic law”’, considers codes of law
(articulations of what the law is in abstract and concise language to be used by judges and
law-enforcement bodies), reckoned to be a modern phenomenon unknown in medieval
Islamic law, also tracing these codes to premodern origins. His work bears the quality of
restraint and economic description on which historians pride themselves.
In the next chapter, Andrew March provides an account of Islamic constitutional reason-
ing at the heart of reflections about the modern state in the Muslim world. He argues that
this area was clearly ripe for creative treatments by reformers and state functionaries all the
same. Reconciling ‘nation’ with a worldwide Muslim community is the central question.
It is not that either state power or even aggression (internal or external) was unknown in
premodern Islamic history. What is new, rather, is Muslims’ appropriation of a European sat-
isfaction with identities below that of a multi-ethnic or regional Christendom (Christendom
has never been global). This pushed Muslim political theorists, from Mawdudi (d. 1979) to
the contemporary Ghannushi (b. 1941), to ask whether a Muslim nation state can function
within the parameters of a worldwide Muslim unit, or whether this unit itself needs to be
questioned or discarded.
8
Mohammad Fadel moves us closer to our recent moment as he takes up the Arab Spring
and attempts a theoretical and historical interpretation of the notions of ‘political state’ and
‘legitimacy’ in political order in our ambiguous global condition encompassing many (either)
failed or failing national entities. This chapter asks: What kind of new beginning should be
expected for political and constitutional reasoning in the Muslim world today? Will recon-
ciling the tenets of liberalism with those of paternalist, value-laden views of community be
possible?
In the context of a contained community with identifiable borders, Ahmed Al-Dawoody
attends to how ‘destruction’ (of human selves, property and freedom) is punished by the law
in the particular case where threats to human safety itself accompanies the destruction. The
much-abused term ‘terrorism’ is employed in this chapter to cover what Muslim jurists term
‘h․irāba’, or (if attended by cessation) ‘baghy’ or (if attended by a declaration of the rejection of
the tenets of Islam ‘ridda’. Both premodern views of the subject and recent resolution by ‘fiqh
academies’ are covered.
While these four categories evolved out of a prior plan the editors devised, they reflect
choices the contributors made, which the editors found to be reflective of broader trends in
academic scholarship in the field. Classifying the chapters also took the author’s orientation
and specific contribution as a starting point for classifying it, rather than work to force each
contribution into a ready straight jacket. Each contributor’s specific goals are preserved in her
or his chapter, while the chapters, collectively, make up an overall architecture the editors
approve for a volume intended to function as a reference book.
Many contributors avail themselves of opportunities of ‘method choice’ and ‘interdisci-
plinary outlook’. These are important factors in situating each contribution and understand-
ing its function. Reading any tradition with a focus of any type does always jettison other
foci. This is another recommendation to consider this volume as something much more than
the sum of its parts. Each contributor was asked to observe the standards of due diligence
and offer his or her own view of their subject. The resulting collection is presented with the
promise that it will not be uni-dimensional, ideological or lacking in breadth of scope.
Audience
This Handbook should be useful to advanced undergraduate students in the humanities and
social sciences whose academic focus overlaps with the subject(s) of Islamic law as well as
students of law schools who are similarly interested in Islamic law, Islamic jurisprudence
and modern law in Middle Eastern and Muslim countries. It also clearly fills a gap experi-
enced by graduate students in many academic fields who are unable to consult Islamic law’s
primary sources and those graduate students who are considering specializing in the field or
fields of Islamic law. For more advanced students or scholars, the Handbook provides a review
and an overview of the field from actual examples of contributions by its practitioners. The
material in the Handbook may be serviceable as reading material for different college and
university courses.
9
II
What type of law is Islamic law?
Khaled Abou El Fadl, Editor*
What is Shariʿah? What is Islamic law? As we will see, these are two very different questions,
but for now let us assume that these two questions substantially overlap. By asking this, I do
not mean what are the rules of Shariʿah or Islamic law, nor am I referencing the constituent
sources of each. More fundamentally, the question is, what kind of law is Shariʿah law or Is-
lamic law? In one view, Islamic law represents ‘an extreme case of jurist’s law’, the product of
strict casuistic thinking that had little to do with reality, and thus, one can conclude it is not
law at all.1 However, this view has been thoroughly refuted and can no longer be taken seri-
ously.2 But in another view, Islamic law is a relatively recent colonial invention. As Baudouin
Dupret puts it: ‘The idea of transforming Islamic rules into law and, particularly, codified law
is the result of an invention rooted in European intervention on the Muslim scene’. 3 Dupret
means to say that while Shariʿah represented an Islamic normativity, the rules enunciated
through the practice of fiqh did not represent law in the positivist sense of the word. Colonial
European powers and their native collaborators projected a very particular cultural paradigm
onto the Muslim tradition by inventing the very concept of Islamic law. Thus, per this view,
the very idea of Shariʿah as Islamic law is a recent Orientalist invention of the 18th and 19th
centuries that was embraced by Muslim natives because of the pervasive influence of colonial
powers upon Muslim cultures.4
I agree that Shariʿah does represent what may be described as Islamic normativity. I will
return to this point later. I also agree that rather than treating Shariʿah as a practised disci-
pline of deliberative and purposeful practical reasoning, colonial powers reduced Shariʿah to
a code of duties and obligations that had a largely corrupting influence upon the way that
the Shariʿah was understood and practised for centuries. Although the reduction of Shariʿah
normativity to a code-like set of dos and don’ts might have been instituted by colonial pow-
ers for entirely materialistic and pragmatic reasons, one cannot underestimate the impact
of home-grown puritanical movements upon the ways that Shariʿah law is understood and
perceived in the world today.
In the post-colonial period, 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
Khaled Abou El Fadl
of inheritance and family law. In addition, in response to domestic political pressure,

several Muslim countries in the 1970s and 1980s 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 con-
nection or relationship of any of these purportedly Islamically based or Islamized laws
to the Islamic legal tradition remains debatable. As discussed further below, even in the
field of personal law, where the supremacy of Shariʿah law was supposedly never seriously
challenged, let alone the various highly politicized efforts at legal Islamization, Islamic
legal doctrine was grafted onto what structurally and institutionally, as well as episte-
mologically, were legal systems borrowed and transplanted from the West. Practically
in every Muslim country, the complex institutional structures and the 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. Assertions of disembodied Islamic determina-
tions or rules in the modern age without the contextual legal processes, institutions and
epistemology, and in the absence of the legal cultures that generated these determina-
tions in the first place, meant that the relationship between contemporary manifestations
of Islamic law and the classical legal tradition remained problematic. The reduction of
Shariʿah law to a set of codified positivist commands enacted by a human legislative
body is so at odds with the nature of the inherited classical legal tradition to point that
some scholars argued that modern codified law is not Islamic law at all. Most notably,
Wael Hallaq argued that the modern nation-state with its centralized ruling apparatus
and institutions mandating human legislative supremacy is inconsistent with the very
nature of Islamic law. 5 According to Hallaq, the rise of the modern state with its reliance
on codified law and statutory legal systems has been the virtual death knell of Islamic
law.6 What Hallaq means is that classical Islamic law enjoyed a discursive and pluralistic
nature. Quintessentially, the classical legal system premises itself on negotiating the re-
lationship between the Supreme Divine legislator and the human agent. In the modern
state, law is deterministic and positivistic in that obedience to the law is not premised
on proof and persuasion but on sovereign command and compulsion, and thus, modern
state legal systems are fundamentally inconsistent with the epistemological foundations
of the classical Islamic legal system.
Whether it is correct that any attempt to adopt Islamic law in the context of the modern
nation-state is such an incongruent distortion that is bound to fail, remains an open ques-
tion. Of course, there is no reason to assume that Islamic law cannot structurally evolve so
that it can indeed adapt to the modern nation-state. Arguably, Ottoman imperial law as well
as modern Iranian law are forms or types of Islamic law, although both examples exist in
considerable tension with the classical tradition.7 However, there are two significant qualifi-
cations that one must note at this juncture: first, whether modern nation-state law, with its
attendant centralized bureaucratic apparatus, is the ‘ruin’ of Islamic law depends on how one
understands or defines the very phenomenon of law – let alone how one understands the very
word Islamic. Second, as discussed below, the issue of the so-called ruin of Islamic law in the
modern age assumes that the only real law is the law applied by the state. Put more directly,
can Islamic law exist in the modern age outside the provenance of the state? Can Islamic law
exist in the modern age as a voluntary institution and still be considered law? The answer to
this brings us back again full circle to the issue of what is law, and more specifically, what
kind of law is Islamic law?
12
Whither Islamic Law?

Ebrahim Moosa contends that:
The very idea of ‘Islamic law’ is, in many ways, a misnomer. While classical jurists
( fuqahāʾ) adjudicated everything from prayers and fasting to war and trade, it is uncer-
tain whether they were engaged in law-making as we understand law today. It would be
more accurate to say that they were engaged in identifying norms derived from teach-
ings inspired by revelation as well as the experiences of the early Muslim communities,
and in describing how these practices translated into the realities of their own societies.
Moosa goes on to suggest that we ought to think of ‘Islamic law as an enterprise in ethics’.8
One suspects that what motivates this kind of argument is the desire to make Islamic law less
binding and mandatory in the modern world – in other words, the desire to open up spaces
for negotiation and discretion in the modern age when dealing with the enormous corpus of
Islamic legal adjudications. Although this argument has gained currency among contempo-
rary Muslims, the problem is that if Islamic law is thought of as an ethical enterprise, Islamic
legal determinations would become more obligatory and binding, not less so. Theoretically,
ethical norms are norms about what is right and wrong and what is good and bad. Hence,
instead of being understood as a deliberative process applying practical reasoning in search
of the Divine Will, Islamic legal determinations might embody actual ethical norms. Put
simply, it is far easier to claim that a specific legal ruling does not apply to a particular set
of circumstances due to instrumental reasons than it is to defy or challenge the relevance of
ethical norms. Take, for instance, the penalty of severing the hands for robbery or stoning
for adultery. Are these penalties functional instrumentalities of law, or are they ethical norms
about what is good and moral, and what is bad and immoral?
But as we encountered with Dupret and Hallaq, Moosa’s argument hinges on how we
understand and define law. The above-mentioned authors, as well as many others, base their
arguments on the unspoken assumption that modern law is necessarily positivistic – that law
is the command of the sovereign backed up by the threat of the use of force. Although con-
temporary authors rarely expressly explain what they mean by the expression ‘modern law’,
one can reasonably speculate that they understand modern law in strict positivist terms. In
their estimate, law and its authority are seen as source-based. Meaning, the validity of legal
norms depends on the sources determined by a social community’s rules and conventions,
and not moral values or ethics. Law is as if a closed system in which there are rules of recog-
nition for identifying valid law, and this valid law is necessarily enforced by the state. The
challenge is that this vulgar form of exclusive positivism does not accurately describe the
phenomenon of law. This Austinian positivist understanding of law is grossly outdated and
has long been abandoned by most positivists. Even the most staunch proponent of exclusive
positivism today recognizes that law is a far more complex phenomenon than first described
by John Austin in his classical command theory.9 To be clear, I do not necessarily disagree
with Dupret, Hallaq, Moosa and similar writers, I am simply noting that one cannot claim
that Islamic law is not law unless one first clarifies and defends their conception of law. What
is often described as exclusive legal positivism10 is not the only possible understanding of
modern law, and to assume that it is, forces one to think in terms of the binary division of ei-
ther law or ethics. To describe Islamic law as a set of norms, but not law, does not add clarity.
Norms is a conveniently ambiguous term that could mean practically anything.
13
Khaled Abou El Fadl
In theory, one is not confined to the choice of Islamic law as either an exclusivist posi-
tivist enterprise or not law at all. For instance, one can wonder whether Islamic law is best
understood as a teleological natural law concept, most notably in its Thomistic sense.11 This
is often described as a voluntarism in which something is good or bad, and something is
morally required or not, because God has commanded that it be so. However, most natural
law theories are aspirational in nature, in which the validity of law is best understood in terms
of its moral objectives, such as justice or reasonableness.12 As will be observed below, Islamic
law does often sound as if it is a teleological project best understood in natural law terms.
After all, in Islamic jurisprudential theory, it is elementary that God is just and commands
justice. However, we are not limited to either exclusive legal positivism or natural law theory
in describing Islamic law.13 In other words, legal positivism or natural law are not the only
two possible choices in identifying the nature of a legal system.14 In my view, Islamic law is
best described as the process of a practiced discipline of deliberative and purposeful practical
reasoning in which rulings are developed primarily through analogical dynamics. Before
proceeding further and explaining this argument, we must review some of the key concepts
of Islamic law.
Nature and purpose of Islamic law

The word Shariʿah is derived from the word shar‘, which means, among other things, a way or
method. Variants of the word Shariʿah are mentioned in the Qurʾan in a number of instances,
among them the following. The expression, sharaʿa lakum, meaning decreed upon you or for you,
occurs in a verse that states, ‘God has decreed upon you the same commandment that God
has given Noah, and what We have revealed to you is what We had enjoined upon Abraham
and Moses and Jesus’ (Qurʾan 42:13). Elsewhere, the Qurʾan uses the expression shirʿatan
wa-minhājā, which means a path and a way (law) in a verse stating,
We sent to you the scripture with truth, confirming the scriptures that came before
it, and with final authority over them: so judge between them according to what God
has sent down. And do not follow their whims so that you may deviate from the truth
that has been sent to you. We have assigned a path and way (shirʿtan wa-minhājā). If God
would have willed God would have made but a single nation … but compete in good
deeds. (Qurʾan 5:48)
The word Shariʿah occurs in the context of the expression, sharı̄ʿatin min al-amr, which is usu-
ally translated as sure path or mandated path. ‘Now We have set you on a sure path (sharı̄ʿatin
min al-amr) so follow it, and do not follow the whims of those without knowledge’ (Qurʾan
45:18). The various ways that the word Shariʿah is employed in the Qurʾan give the connota-
tion of a path to truth, moral law, or perhaps a method that leads to the truth. Linguistically,
Shariʿah could mean a pasture, a water spring, or a path of goodness. Shaheen Sardar Ali
correctly notes that, in essence, Shariʿah means a flowing stream that brings nourishment,
flourishing and life.15 In many ways, the word Shariʿah is well represented by the term nomos
or an applied way of life.16
As an essential point of departure, it is important to underscore that in classical jurispru-
dential theory, the ultimate point of Shariʿah is to serve the well-being or achieve the welfare
of people (tah․qı̄q mas․ālih․ al-ʿibād).17 The objective of Shariʿah is not necessarily compliance
with the commands of God for their own sake, rather such compliance is a means to an end,
which is the serving of the physical and spiritual welfare and well-being of people. Some
14
classical jurists contended that Shariʿah is but a means to moral virtues ( fad
․ı̄la).18 Ibn Rushd (d.
595/1198), for instance, asserted that Shariʿah is but a means to achieving and promoting par-
ticular virtuous norms including spiritual purity (ʿiffa), equity (ʿadl), courage (al-shajāʿa), and
generosity (al-sakhāʾ). Shariʿah regulation of social norms is founded upon the obligation to
do good and avoid evil (al-amr bi-l-maʿruf wa-l-nahy ʿan al-munkar).19 Ibn Qayyim al-Jawziyya
(d. 751/1350–1) contended that:
Shariʿah is founded and structured upon wisdom and people’s welfare in this world and
the Hereafter. In its entirety, it is justice, mercy, and wisdom, and so any ruling that
exceeds justice to injustice, mercy to its opposite, welfare to harm, or wisdom to non-
sense cannot be considered a part of Shariʿah, even if it was introduced into it through
(faulty) interpretation.20
Of course, statements such as those above only beg the question of whether Shariʿah is
best understood as a teleological project, or more appropriately, in terms of an empirical
or morally neutral approach. The famous Muʿtazili Shafiʿi jurist al-Qadi ʿAbd al-Jabbar
(d. 415/1025) and other Muʿtazili, i.e. rationalist, scholars argued for an objective under-
standing of justice and morality. Rationalist jurists embraced what became known as the
‘correlation principle’ (ittifāq al-Shariʿah wa-l-ʿaql) between revelation and reason by which
they believed that God, the Lawgiver, legislates according to the dictates of reason. Actions
are intrinsically good or bad (h․asan or qabı̄h․) and are objectively so, and the Lawgiver has
committed Himself to legislate according to objective dictates of justice and morality.
Some rationalists argued that although good and bad are objectively knowable, human
beings are obligated to do good and abstain from doing bad only because God commanded
us to do so. Things and actions are intrinsically and objectively good or bad, but they are
not normatively so. The actual normative obligation or duty (taklı̄f ) is derived only from
God’s command.
One can say that there is a natural law tradition soundly anchored in the classical Shariʿah
tradition. But it would be difficult to describe Shariʿah in purely natural law terms. As dis-
cussed below, a number of Muslim jurists advocated that the demands of Shariʿah be under-
stood in teleological terms – that Shariʿah be interpreted in light of certain moral objectives.
However, in terms of the development of Shariʿah as a socio-historical and institutional prac-
tice, reason was not used independently from the revealed text. For the most part, Muslim
jurists did not justify Shariʿah in purely abstract philosophical terms. Rather, they anchored
their authority in the claim of Divine legislative supremacy, and employed reason in the
service of Shariʿah. The classical jurists did not use reason in lieu of or independently from
the revealed text. They did, however, use reason to deduce canons of interpretation, develop
presumptions of law, and navigate the Divine legislative Will in the context of promoting
perceived public interests, or even to create equity-based exceptions to the law.21 For the
most part, because Muslim jurists functioned within the parameters of a living legal system,
they did not feel free to pursue the logic of unfettered philosophical reasoning. Instead, they
used reason to negotiate the dynamics of legal interpretation towards the achievement of
particular ethical or social policy goals. Reason was utilized in a systematic effort to thread
the needle of law through the mechanics of practical adjudications often in the pursuit of
particular social policies or moral goals.22 In this sense, Shariʿah was often seen as the nomos
(or in Arabic namūs) or the correct path to happiness in this world and the Hereafter (t․arı̄q
al-saʿāda fı̄ al-dunyā wa-l-ʾakhira) – as a way of life discoverable through the application of
practical reasoning and deliberative practice.
15
Khaled Abou El Fadl
Classical Muslim jurists reasoned that if law will be made to serve the well-being of peo-
ple, while at the same time avoiding the pitfalls of the tyranny of human whim or unfettered
reason, Divine guidance or direction is necessary and indispensable. Muslim jurists reasoned
that God communicates God’s Way or Path (the Shariʿah) through indicators or evidence
pointing towards the Divine Will, known as the dalı̄l (pl. adilla). The dalı̄l means the indi-
cator, mark, guide or evidence. In Islamic legal theory, it is a fundamental building block
of the search for the Divine Will and guidance. As a sign of God’s mercy and compassion,
God created or enunciated numerous indicators serving as guidance to human goodness,
well-being (al-h․asan wa-l-maʿrūf ), and ultimately, the Divine Will. Moreover, God ordained
that human beings exert a persistent effort in investigating the Divine indicators, or the ev-
idence of God’s Will (badhl al-juhd fı̄ ․talab al-dalı̄l) so that the objectives of Shariʿah may be
fulfilled. Not surprisingly, the nature of the dalı̄l became one of the formidable and formative
debates of early Islamic jurisprudence. The most obvious type of indicator is an authoritative
text (sing. nas․․s Sharʿı̄ or pl. al-nus․ūs․ al-Sharʿiyya), such as the Qurʾan, 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 (ʿaql and raʾy), intuition ( fit․ra), and
human custom and practice (ʿurf and ʿada). Functionally, ʿaql or reason meant necessary ra-
tional relationships inherent in the laws of creation or nature. Recognition of these rational
relationships was very often infused with principles of natural justice. So, for instance, ʿaql in-
cluded the principle that the law must premise itself on the natural laws of physical causation;
the principle that whoever causes damage incurs an obligation to compensate or make whole
(wājib al-d․amān); the presumption of innocence, and also the presumption that one is free
from obligation or duty unless there is just cause or evidence of incurring a duty or liability
(al-barāʾah al-a․sliyyah); the principle that harm or suffering must be removed or alleviated
(al-d․arar yuzāl); or the interpretive principle that certainty cannot be rebutted by speculation
or suspicion (al-yaqı̄n lā yuzāl bi-l-shak). These among many others were considered founda-
tional principles of law based in reason and natural justice. Similarly, what counted as fit․ra or
proper intuition was multi-layered and a rather complicated issue.23 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. Especially with the increasing consolidation of the legal system af-
ter the tenth century, both Sunni and Shiʿi jurists argued that most indicators are divided into
rational proofs (dalı̄l ʿaqlı̄) and textual proofs (dalı̄l nas․․sı̄). As to rational proofs, jurisprudential
theory further differentiated between pure reason, and practical or applied reason. Foun-
dational legal principles and legal presumptions, such as the presumption of innocence or
the presumption of permissibility (al-barāʾa al-as․liyya); the presumption of continuity (istis․․hāb
․āl); and the duty to apply caution if there is reason to believe a right will be violated (wājib
al-h
al-ih
․tiyāt․) are derived from pure reason infused with principles of natural justice.
In Islamic jurisprudential theory, 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-Shafiʿi (d. 204/820)
had one set of legal opinions that he thought properly applied in Iraq, but changed his po-
sitions and rulings when he moved to Egypt to account for the changed circumstances and
social differences between the two regions.24 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-ah․kām bi-taghayyur al-zamān wa-l-ah․wāl).’25
16
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 unat-
tainable, 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 certain-
ties (yaqı̄n and qat․ʿ). 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). As the influential classical jurist
al-Juwayni stated:
The most a mujtahid would claim was a preponderance of belief (ghalabat al-zann) and the
balancing of the evidence. However, certainty was never claimed by any of them (the
early jurists) … If we were charged with finding [the truth] we would not have been
forgiven for failing to find it.26
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 judgement 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 tarjı̄h․, 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.27
The sources of Islamic law

The critical issue in early Islamic jurisprudence was not the struggle over what role the text
ought to play, but more substantially, over the methodologies by which the legal system
could differentiate between determinations based on whim or a state of lawlessness (h․ukm al-
hawā), and determinations based on legitimate indicators of the Divine Will (h ․ukm al-sharʿ).
Recognizing the principal of legislative supremacy, the classical jurists insisted that Shariʿah
law is anchored on the twin pillars of the Qurʾan and Sunnah. However, it is important to
distinguish the formal sources of law in the Islamic legal tradition from 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 pro-
cess of producing positive rules and commandments. In theory, the foundations of all law in
Islamic jurisprudence are the following: the Qurʾan, the Sunnah (the tradition of the Prophet
Muhammad and his companions), qiyās (analogical reasoning), and ʾijmāʿ (consensus or the
overall agreement of Muslim jurists). In contrast to mainstream Sunni Islam, Shiʿi jurispru-
dence, as well as a minority of Sunni jurists in the particular classical orientations, recognizes
reason (instead of qiyās) 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 a broad array of in-
terpretive and adjudicative canons including legal presumptions, such as the presumption of
continuity (istis․․hāb) and the imperative of following precedents (taqlı̄d); legal rationalizations
for breaking with precedent and de novo determinations (ijtihād); application of customary
practices (ʿurf and ʿāda); judgements in equity, equitable relief and necessity (istis․lāh․, ․hājah,
․darūra, etc.); and in some cases, the pursuit or the protection of public interests or public poli-
cies (mas․ālih
․ mursala and sadd al-dharā’iʿ wa-l-mafāsid). These and other practical jurisprudential
17
Khaled Abou El Fadl
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 concep-
tual 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 legality and the rule of law.
Being the ultimate sources of legitimacy, the formal sources of law do not play solely a
symbolic role in Islamic jurisprudence. Many legal debates and determinations originated or
were derived directly from the textual narrative of the Qurʾan and Sunnah. 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 Qurʾan and Sunnah. Only very lim-
ited portions of the Qurʾan can be said to contain specific positive legal commandments or
prohibitions. Much of the Qurʾanic discourse, however, does have compelling normative
connotations that were extensively explored and debated in the classical juristic tradition.
Muslim scholars developed an extensive literature on Qurʾanic exegesis and legal herme-
neutics as well as a body of work (known as ah․kām al-Qurʾan) exploring the ethical and legal
implications of the Qurʾanic discourse. Moreover, there is a classical tradition of disputations
and debates on what is known as the ‘occasions of revelation’ (asbāb al-nuzūl), which deal with
the context or circumstances that surrounded the revelation of particular Qurʾanic verses or
chapters, and on the critical issue of abrogation (naskh), or which Qurʾanic 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. How-
ever, in contrast to the juristic discourses on the Qurʾan, there are extensive classical debates
on the historicity or authenticity of the hadith (oral traditions attributed to the Prophet) and
the Sunnah (historical narratives typically about the Prophet but also his companions). While
Muslim jurists agreed that the authenticity of the Qurʾan, 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 would be normatively binding because most jurists differ-
entiated between the Prophet’s sacred and temporal roles. The Prophet was understood as
having performed a variety of roles in his lifetime, including that of the bearer and conveyer
of the Divine message, a moral and ethical sage and instructor, a political leader, a military
commander and soldier, an arbitrator and judge, a husband and a father, and a regular human
being and member of society. Not everything the Prophet said or did in these various ca-
pacities and roles created normative obligations upon Muslims. The Prophet did not always
act as a lawmaker or legislator, and part of the challenge for Muslim jurists was to ascertain
when his statements and actions were intended to create a legal obligation or duty (taklı̄f ),
and when they were not meant to have any normative weight. In some cases, Muslims are
affirmatively prohibited from imitating the Prophet’s conduct because it is believed that in
certain situations, the Prophet acted in his capacity as God’s messenger, a status that cannot
be claimed by other human beings. Other than the normative implications of the Prophet’s
sacred and temporal roles, a great number of juristic disputations focused on the practices and
opinions of the Prophet’s family (ahl al-bayt), including his wives, and his companions and
disciples (s․ah
․āba). But while Sunni jurists tended to emphasize and exhibit deference to the
18
four Caliphs who governed the nascent Islamic state after the death of the Prophet (known
in the Sunni tradition as al-Rāshidūn or the rightly guided), Shiʿi jurists heavily relied on the
teachings of the infallible imams, all of whom were the descendants of ʿAli, the fourth Caliph
and the Prophet’s cousin, and his wife Fatima, the Prophet’s daughter.
It is fair to say that the Qurʾan and Sunnah are the two primary and formal sources of legit-
imacy in Islamic law. Quite aside from the question of whether most of Islamic law is derived
from these two sources, the Qurʾan and Sunnah play the foundational role in the processes of
constructing legal legitimacy. This, however, begs the question as to why instrumentalities
of jurisprudence such as analogy or reason and consensus are typically listed among the four
formal sources of Islamic law. The response, in part, is that the utilization of the concepts of
qiyās (or ʿaql) and ijmāʿ, not just as instrumentalities of law but as legitimating and founda-
tional origins of law, was a necessary legal fiction. The emergence of this legal fiction in the
first couple of centuries after the death of the Prophet took place after contentious, and at
times, tumultuous jurisprudential debates. Ultimately, these concepts were intended to steer
a middle course between the unfettered and unrestrained borrowing of local customary laws
and practices into Islamic law, and on the other extreme, the tendency towards literalism and
over-reliance on textualism as the basis of legitimacy in the process of legal development.
As legal instrumentalities, both the predominantly Sunni concept of qiyās and Shiʿi ʿaql
utilize analogical reasoning to identify the critical issue in one legal ruling and then extend
the same ruling to a new case. Jurists used carefully defined analytical skills in deducting the
operative cause or ratio legis (the element that triggers the law into action; ʿilla in Arabic) of
a particular textual law or determination. Confronted by an unprecedented or novel case,
often for which there was no law on point, the jurist would extend the ruling in a previous
case (as․l) to the new case ( farʿ), but only if both cases shared the same operative cause.28
The derivation of the operative cause of a ruling (istikhrāj ʿillat al-h․ukm) was important not
only because it had become the method by which the law was extended to cover new cases,
but also because it became one of the primary instruments for legal systemization and also
change. If the operative cause changes or no longer exists, the law, in turn, must change.
The Islamic legal maxim, al-ʿilla tadūr maʿa al-maʿlūl wujūdan wa-ʿadaman, became substan-
tially the same as the Latin maxim providing that the law is changed if the reason of the law
is changed (mutata legis ratione mutatur et lex). In interpretation as well as adjudication, this
helped generate a more systematic legal institution; it meant that cases involving substantially
the same issues were decided similarly. This practice, in turn, led to the development of the
presumption that precedent ought to be followed unless there is sufficient cause for exception
or change (istis․․hāb), which could be triggered by changed circumstances, equity, or a number
of other legal justifications.
In a similar fashion, the concept of ijmā‘ (consensus) was utilized to create a more system-
atic and accountable legal system. The basic idea behind the doctrine of ijmāʿ was that the
agreement of jurists on a particular point of law or that well-established legal doctrine ought
to be binding. Nevertheless, beyond this fundamental idea, which was often invoked in an
effort to consolidate and stabilize the legal system, there were numerous juristic debates as
to a range of issues, such as whose consensus counts or matters; whether consensus is time-
bound, for instance by generation or another time contingency; whether the doctrine of
consensus has a regional dimension and how; and last but not least, how to go about ascer-
taining that a consensus exists. As readily recognized by classical jurists, however, the claim
of consensus was often polemically invoked by judges and jurists in the course of arguing that
a particular issue was well settled in law, when indeed it was not, or alternatively, to resist
pressure in favour of legal change.
19
Khaled Abou El Fadl
Diversity and pluralism in Islamic law

The Islamic legal tradition was founded on a markedly pluralistic, discursive and exploratory
ethos that became the very heart of its distinctive character. Thus, one of the foundational
ideas of Islamic jurisprudence, variously attributed to the eponyms of the Hanafi and Shafiʿi
schools of law, Abu Hanifa (d. 150/767) and al-Shafiʿi, asserted:
We believe that our opinions are correct, but we are always cognizant of the fact that our
opinions may be wrong. We also believe that the opinions of our opponents are wrong,
but we are always cognizant of the fact that they may be correct.29
This, however, was much more than a pietistic declaration of humility or fair-mindedness.
Muslim jurists believed that as long as a jurist exerts due diligence and is not negligent in
searching the indicators and investigating the pertinent evidence, the resulting determina-
tion has an equal claim to legitimacy and authenticity. In fact, Malik b. Anas (d. 179/795),
eponym of the Maliki school of thought, argued that different jurists have developed various
juristic methods and determinations in different parts of the Muslim world, and that it would
be wrong to try to streamline or force the various schools into one.30 Moreover, Malik b.
Anas resisted the efforts of the Abbasid Caliph al-Mansur (d. 158/775) to impose the legal
rulings of Malik as the uniform law of the land, arguing that no one, including the state, has
the authority to sanctify one school of thought as the true law of God, while all others are
denounced as corruptions or heresies. Similar efforts by the Abbasid Caliph Harun al-Rashid
(d. 193/809) and other rulers to have the state become the sole representative of God’s Will
were defeated as well. According to classical legal reasoning, no single 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.31
One of the clearest expressions of the philosophical foundations of this position was that
made by the Shafiʿi jurist, al-Juwayni (d. 478/1085), in writing:
It is as if God has said to human beings, ‘My command to My servants is in accordance

with the preponderance of their beliefs. So whoever preponderantly believes that they
are obligated to do something, acting upon it becomes My command.’32
Al-Juwayni goes on to explain that God’s command to human beings is to diligently search
the indicators and weigh the evidence, and God’s law is suspended until a human being forms
a preponderance of belief about the law. At the point that a preponderance of belief is reached,
God’s law becomes in accordance with the preponderance of belief formed by that particular
individual. In short, therefore, if a person honestly and sincerely believes that such-and-such
is the law of God, then as to that person, ‘that’ is in fact God’s law.33 Ultimately, as to whether
there is an objective right answer to contested legal questions, al-Juwayni responds in the
negative. For al-Juwayni, there is no correct answer, but to every disputed legal question
there is a best answer. Objectively, according to al-Juwayni, the right answer would be the
best legal rule that appeals to the core or fundamental values of Islam, and it would also be
the rule that comports with tradition and practice-based values instead of literal textualism.34
This philosophy did not mean that Muslim jurists accepted legal relativism or even in-
determinism in Shariʿah. Shariʿah was considered to be the immutable, unchangeable and
objectively perfect Divine truth. Human understanding of Shariʿah, however, was subjective,
20
partial, subject to error and change. While Shariʿah is Divine, fiqh (the human understanding
of Shariʿah) was recognized to be only potentially so, and it is the distinction between Shariʿah
and fiqh that fueled and legitimated the practice of legal pluralism in Islamic history. 35 The
conceptual distinction between Shariʿah 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 Shariʿah was seen as an abstract ideal, every human effort at understanding
or implementing this ideal was considered necessarily imperfect or incomplete. 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.
As seen above, Muslim jurists debated whether in the final analysis, on every point of law
there is a single correct position, and whether this position is known only to God, and it is
only in the Hereafter that this truth will be revealed. Much of this debate tended to revolve
around a number of traditions attributed to the Prophet. For instance, the Prophet is reported
to have said: ‘Every mujtahid ( jurist who pursues the right response to a problem) is correct’
or ‘Every mujtahid will be [ justly] rewarded.’36 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 sin-
cerity 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 insti-
tutions in Islamic jurisprudence, the most important of which was negotiating the dynamics
between Shariʿah and fiqh. In the Islamic legal tradition, there is only one Shariʿah (Shariʿat Al-
lah), but there are a number of competing schools of thought of fiqh (madhāhib fiqhiyya). Even
the most ardent of the process-oriented jurists did not go as far as claiming that there are no
objective and ultimate values to Shariʿah. Process-oriented jurists contended that the search
for the Divine Will is the ultimate moral value, but only as to matters open to a fiqh inquiry.
At the same time, 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 Shariʿah to be entirely unattainable or inaccessible until the Hereafter. Some
have suggested that Shariʿah contains the foundational or constitutional principles and norms
of the legal system. So, for instance, Shariʿah imposes a duty (taklı̄f ) upon Muslims to enjoin
goodness and resist wrongfulness. There is little doubt that this duty is a part of Shariʿah, but
what does it actually mean, and how or who should implement it, is part of fiqh. Neverthe-
less, the exact boundaries between Shariʿah 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. Muslim jurists often made the rather circular argument that issues that
are considered open to the disputations of fiqh are those upon which jurists may reasonably
disagree (al-umūr al-khilāfiyya). Other popular definitions included the argument that any
position, doctrine, or determination that is commonly recognized to be a necessary part of
the Islamic religion is a part of Shariʿah (maʿlūm min al-dı̄n bi-l-d
․arūra), but this argument had
proven to be both under-exclusive and over-exclusive. Moreover, like arguments that have
sought to define Shariʿah as whatever Muslims have reached a consensus upon (al-mujmaʿ ʾa-
layh), these definitions tended to confuse between empirical and normative claims, or values
and facts. Behind most of the jurisprudential conceptions of Shariʿah was the basic idea that
21
Khaled Abou El Fadl
what cumulative generations of Muslims reasonably identified as fundamental to the Islamic

religion (for instance, the five pillars of the Islamic faith) ought to be part of the unassailable
Shariʿah. As some have contended, this approach might have been important to the field of
theology, but in law, Shariʿah could not be limited to inherited or popular ideas. Rather,
Shariʿah 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 can-
not be represented by a single system of fiqh, and the celebration of diversity itself are among
those foundational grundnorms. In many regards, one could say that Shariʿah is the unwritten
constitutional law of the Islamic common law system, but because of the particular histori-
cal practices of the schools of fiqh, such a re-conceptualization would need to be developed
analytically. For instance, it is firmly established in the Islamic legal tradition that Shariʿah
seeks to protect and promote five fundamental values: 1) life; 2) intellect; 3) reputation or
d ignity; 4) lineage or family; and 5) property. These are among the five objectives constitut-
ing maqās․id al-Shariʿah, or part of the five core purposes of Shariʿah.37 Furthermore, Muslim
jurists overwhelmingly held that there are three basic levels of attainment or fulfilment of
such values: the necessities, needs and luxuries. Under Shariʿah 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 pun-
ishing fornication, which were said to be necessary for the protection of lineage and family.
I will discuss the ․h udūd 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 Shariʿah, and not just fiqh, or were left in a rather ambiguous and con-
tested status between Shariʿah and fiqh. Claiming that a positive legal commandment is not a
by-product of fiqh, but is essentially part of Shariʿah, effectively endowed such a command-
ment with immunity and immutability. The boundaries between Shariʿah and fiqh were ne-
gotiated 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.
As noted above, the genesis of the schools of fiqh was in the localized regional practices
and adjudications of Kufa, Basra, Damascus, Mecca, Medina, Fustat and other urban centres.
But as early as the eighth century, alongside the state courts run by appointed judges and
administrators, already there emerged the widespread phenomenon of privately funded and
endowed centres of legal learning and schools of fiqh, usually organized around the persona
of a gifted law teacher. There is a long-established tradition in Islamic history of the state
trying to entice or coerce particularly well-respected and reputable jurists into serving in the
state-run judiciary. However, while every founder of a personal school of thought was a faqı̄h
( jurist), not every faqı̄h agreed to serve as a judge (qadi), and not every qadi was a reputable
faqı̄h. The tension and resistance of legal scholars ( fuqahāʾ) to the temptations of power and
to the allure of accepting a judicial post (qad․āʾ) was an ongoing theme and narrative of valor,
bravery, and suffering throughout pre-modern Islamic history. Indeed, within the first three
centuries of Islamic legal history, there is a proliferation of schools of fiqh, and intense compe-
tition between the various schools for mass support and for private endowments funding the
scholarship of teachers and students. The still extant Sunni schools are those of: Abu Hanifah
(d. 767, eponym of the Hanafi school), Malik b. Anas (d. 795, eponym of the Maliki school),
22
Ibn Idris al-Shafiʿi (d. 820, eponym of the Shafiʿi school) and Ahmad b. Hanbal (d. 855, ep-
onym of the Hanbali school). There are three major Shiʿi schools of law: the Jaʿfaris (named
after Jaʿfar al-Sadiq, d. 765), the Zaydis (named after Zayd b. ʿAli, d. 739), and the Ismailis
with their own unique legal heritage. Other than the Sunnis and Shiʿis, there is the legal
tradition of the Ibād
․ ı̄ school, which descended from the sect of the Khawarij. There are also
many extinct schools such as these of: Ibn Abı̄ Laylah (d. 765), Sufyan al-Thawri (d. 777),
Ibn Jarir al-Tabari (d. 923), ʿAbd Allah b. Shubruma (d. 761), al-Layth b. Saʿd (d. 791), Sharik
al-Nakhaʿi (d. 803), al-Awzaʿi (d. 773), Ibrahim Abu Thawr (d. 854), Dawud b. ʿAli b. Khalaf
(d. 884) (the Zahiris), and many more. Even in a single school, such as that of Abu Hanifah,
there could be several distinctive trends or orientations, such as the positions of Zufar (d. 775),
Abu Yusuf (d. 798), and al-Shaybani (d. 804). Purportedly, by the end of the tenth century,
no fewer than 100 schools of fiqh had emerged in the highly competitive legal market, but
for a wide variety of reasons, most of these schools ultimately failed to survive. Fortunately,
however, many of the diverse positions and competing views expounded by extinct schools
of thought were documented in huge legal encyclopedias often written by competitors, and
in some cases, the actual texts of extinct schools have reached us. The most striking charac-
teristic about the legal schools that dominated the practice of law for more than three cen-
turies 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. At
this formative stage, through discursive methods of teaching and disputation, the madhāhib
were going through a process of gelling, in which they developed not only their internal
mechanisms, particular linguistic practices and systems of discourse, but they also competed
for resources. The dilemma was that for a variety of theological and political reasons, jurists
who associated themselves too closely with the state tended to discredit themselves in the
long run, and in the process, ultimately helped to sign their own death warrants. Jurists who
were more adept in negotiating their roles so as to avoid the perception of complete subser-
vience to the state, and with it the inevitable loss of stature and credibility, and who at the
same time, managed to avoid the ire and brutality of the state, which could invariably make
the life of such a school quite challenging, had better chances of survival. In this formative
period, the schools had to compete to attract the best legal minds and the most promising
students to its ranks; and had to be blessed with enthusiastic supporters who enjoyed the cha-
risma and skill to convince affluent families that their children would be best educated in this
or that particular madhhab, or that a generous philanthropist endowment would be a pious
way of doing good in this life and the Hereafter. The competition of the madhāhib or schools
of law was not a short-lived phenomenon. The contingencies of history are many, and there
are madhāhib that thrived in Andalusia or Egypt, for instance, but which were overcome by
another madhhab and eventually vanished; and there are madhāhib that looked like they were
on the verge of extinction, only to make a triumphant comeback centuries later.
During the age of proliferation, one does notice the incredibly broad expanse of space
which came under the legitimate jurisdiction of fiqh. Put differently, there did not seem to
be many issues in Shariʿah that were off-limits for the inquiries of fiqh. Rather, the grand
abstract types of questions that were raised when attempting to expound a systematic de-
marcation between Shariʿah and fiqh were handled within the classical madhāhib through
the micro-technicalities of the practice of law. Rather than struggle with the larger abstract
conceptual questions, the Shariʿah/fiqh balance was negotiated through the micro-dynamics
of legal practice. The main instrument for expanding the scope of juridical determinations
was analogical reasoning, and the best way to describe the processes of Islamic adjudications
23
Khaled Abou El Fadl
and legal thinking is that it was a systematic discipline of deliberative and purposeful practical
reasoning. What distinguished Islamic law from other normative inquiries, such as philoso-
phy or kalām, was that Muslim jurists negotiated the boundaries between theory and practice
through the application of methodologies premised on precedents and analogy by applying
deliberative and purposeful reasoning to resolve real or imagined conflicts and disputes.
Initially, what differentiated one school of law (madhhab) from another were method-
ological disagreements, and not necessarily the actual determinations. With the increasing
consolidation and institutionalization of schools of thought, each school developed its own
distinctive cumulative interpretive culture, structural precedents and particular linguistic
practices. 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 analyses, 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 hypo-
theticals 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 analysed legal issues in terms of five values: 1) neutral or permissible
(mubāh․/h․alāl); 2) obligatory ( fard․/wājib); 3) forbidden (muh
․arram); 4) recommended (mandūb/
mustah․ab); and 5) reprehensible or disfavoured (makrūh). Frequently, jurists spoke in probabi-
listic 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․ ʿindanā). 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 fatwa (sing. fatwā, pl. fatāwā) be-
come 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 judge.38 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 Muslim practitioners, or by an official
adoption by a properly constituted authority.
In theory, judges were willing to obey regulatory or administrative laws as long as they
did not conflict with Shariʿah principles, but even then, the most prominent jurists often
resisted judicial appointments because of the fear that they would have to enforce unlawful
executive orders. Islamic history is replete with anecdotal stories of legal scholars who re-
fused to accept a judicial appointment unless they had assurances that the ruler and his agents
would not interfere with their judgments; or unless the judiciary was given its own police
force empowered to ensure compliance with judicial determinations. After the Umayyad
dynasty (ended 749) and especially after the so-called Mih․na (833–848), which was an
Abbasid aborted inquisition against, among other things, the authority of jurists, it became
increasingly common to appoint jurists from the emerging schools of law. Unless the case
involved a pure administrative or regulatory law problem, which tended to come under the
separate jurisdiction of executive diwāns (diwān al-mulk, diwān al-h․ukm, diwān al-muʿāmalāt, all
of which connoted different administrative councils or ministries), typically judges would
decide cases on the basis of the precedents or analogical reasoning of what could be called the
regional or local madhhab, or the regionally established practices and precedents of each madh-
hab. By the end of the tenth century, as more schools of fiqh became extinct, thriving schools
became increasingly institutionalized and organized as legal guilds with complex processes
24
of training and certification. In turn, only properly trained and certified members of the
established legal guilds would be appointed to the judiciary, but there is ample evidence to
suggest that after the tenth century, instead of localized or region-specific variations on the
madhhab, legal schools of thought developed recognized majority and minority positions –
majority positions reflected the formal stand of the madhhab on recognized legal problems
(al-muʿtamad fı̄ al-madhhab), and minority positions represented the dissenting opinions that
emerged within the schools. Junior judges, in particular, were expected to implement the
positions representative of the school, but justices of higher rank, such as the chief justice (qadi
al-qud․a) and respected senior professors, had considerably more freedom in adopting minority
views or advocating for changes in the law.
By the 11th century, the major legal schools had organized into institutionalized and
structured guilds. Not only had the processes of legal training and certification become well
established, but various genres of legal literature and their different functions had become
well defined. Significantly, the threshold for establishing new legal schools or guilds was set
much higher after older schools had the opportunity to become more socially and economi-
cally rooted. Instead of the uphill battle of finding a new madhhab, it was much more feasible
for even the most talented jurists to join an already established school of law and rise in the
ranks through regular channels. Taqlı̄d (imitation or following prior determinations) was not
the instrument of legal stagnation; it was an important functional instrument of the rule of
law. In general, taqlı̄d stabilized the law by requiring continuity in legal application, and by
creating a legal presumption in favour of precedents unless a heightened burden of evidence
was met justifying legal change. In principle, judges of first instance were expected to follow
the same rule of law from case to case, and students and junior scholars of the law were re-
quired to first learn and defer to the existing methodology and determination of the madhhab
to which they belonged. Higher-ranked judges and scholars enjoying greater qualifications
and stature were able to initiate de novo legal determinations (ijtihād). Indeed, many of the
most important developments in Islamic law were accomplished by jurists centuries after the
supposed ‘doors of ijtihād’ 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 interpre-
tation 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.39 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 ap-
plication 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 ap-
proach within the demands of the juristic method of the madhhab. Far from being formulaic
or mechanical, some late jurists such as Fakhr al-Din al-Razi (d. 1210), Sayf al-Din al-Amidi
(d. 1233), Taj al-Din al-Subki (d. 1370), and Ibn ʿAqil (d. 1119) achieved unprecedented
advancements in the use of systematic and analytical reasoning in Islamic jurisprudence. In
the case of a Shafiʿi jurist such as al-Subki and a Hanbali jurist such as Ibn ʿAqil, it is fair to
say that, methodologically, they became the embodiment of the Latin maxim ratio est radius
25
Khaled Abou El Fadl
divini luminis (reason is a ray of divine light). Some jurists, such as the Hanafi Ibn ʿAbidin
(d. 1836) and the Maliki al-Shatibi (d. 1388), systematically integrated custom as a source of
law in novel and original ways.40 In addition, jurists from various Islamic schools of thought
continued to employ concepts such as istih․sān and istis․lāh․ (the exercise of juristic preference
in favour of a precedent not directly on point instead of a preference that is on point, because
of equity, in the former, and public interest, in the latter) as legitimate sources of law.41 But
these were not instruments allowing the exercise of unfettered juristic discretion. Rather,
jurists developed a set of limiting criteria intended to make the process of exercising legal
preferences more systematic and accountable to the juristic method as a practised discipline
of deliberation and practical reasoning.42 Fundamentally, whether a particular legal orien-
tation 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.43 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, that the juristic method became Islamic law
itself. The deliberative and purposeful mechanisms of Muslim jurists became the method for
negotiating not just the relationship between Shariʿah 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 Shariʿah and fiqh. But be-
yond 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 ʿibādāt (laws dealing with matters of ritual and
worship) and muʿāmalāt (laws pertaining to human dealings and intercourses). In theory, all
Islamic laws are divided into one of these two categories: ʿibādāt are laws that regulate the
relationship between God and humans, and muʿāmalāt are laws that regulate the relationship
of humans with one another. As to issues falling under the category of ʿibādāt, there is a legal
presumption in favour of literalism and for the rejection of any innovations or novel practices.
However, in the case of muʿāmalāt, the opposite presumption applies: innovations or creative
determinations are favoured (al-as․l fı̄ al-ʿibādāt al-ʾittibāʿ wa-l-as․l fı̄ al-muʿāmalāt al-ʾibtidāʿ).
The rationale behind this categorical division is that when it comes to the space occupied
exclusively by how people worship the Divine, there is a presumption against deference to
human reason, material interests and discretion. Conversely, in the space occupied by what
the jurists used to describe as the pragmatics of social interaction, there is a presumption in
favour of the rational faculties and practical experiences of human beings. Underscoring the
difference between ʿibādāt and muʿāmalāt 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-ʿibādāt or fiqh al-muʿāmalāt).
Beyond this clear categorical division, negotiating the extent to which a particular human
act or conduct, whether it be public or private, primarily involved ʿibādāt or muʿāmalāt, was
not a simple and unequivocal issue. For instance, there were lengthy debates as to whether
the prohibition of zinā (fornication or adultery) or the consumption of alcoholic substances
would fall under the category of ʿibādāt or muʿāmalāt, or alternatively, some mixture of both
categories. Nevertheless, as in the case of the debates regarding the parameters of Shariʿah
and fiqh, although in principle there was a philosophical recognition that the spaces occupied
by the sacred and profane required different treatments, in reality, it was the juristic method
26
that played the defining role in determining the function of text, precedent and rational
innovation in the treatment of legal questions. 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 analysed and determined. It was the delib-
erative ability to demonstrate a commitment to a consistent interpretive methodology that
determined legitimacy and validity within each school of thought.44
Importantly, a prominent jurist such as Abu Hamid al-Ghazali insisted that the entire
discipline of fiqh is but a temporal discipline. Al-Ghazali argues that the very role of a
faqı̄h ( jurist) is to resolve and negotiate conflicts among disputants who fight over material
earthly things. Just because a jurist competent in resolving and adjudicating earthly dis-
putes does not mean that such a jurist is knowledgeable about the affairs of the Hereafter.45
Moreover, al-Ghazali explains that jurists ( fuqahāʾ) are experts in temporal things, but they
are not necessarily experts in spiritual matters. Therefore, it is critical to distinguish these
jurists from scholars who specialize in piety and spiritual matters ( fuqahāʾ al-zāhir versus
ʿulamāʾ al-akhira).46 The thrust of al-Ghazali’s argument is that competence over the delib-
erative and reasoned methods of law does necessarily imply competence in spiritual matters
of personal piety. The sciences of law and piety are distinct and separate. Al-Ghazali’s dis-
cussion reflects the fact that the sacred and profane were differentiated and distinguished
in legal practice.
It is in the historical practice of the guilds of law, and especially on questions of pro-
cedure, jurisdiction, conflict of laws and the compulsory powers of courts, that one finds
the most pronounced negotiations of the space and balance between the sacred and pro-
fane. For instance, throughout Islamic history, courts rarely took jurisdiction of matters
involving ʿibādāt, such as the performance of prayers.47 In a rather large genre of literature
dealing with the laws of adjudication (ah․kām al-qad․āʾ), administrative and executive laws
․kām al-h
(ah ․isba and al-siyāsa al-sharʿiyya), and the functions of the muh․tasib, who in classical
practice were usually market inspectors, Muslim jurists differentiated between judicial and
executive functions.48 Related and overlapping discussions are also found in treatises deal-
ing with the private and public normative obligation to enjoin the good and resist what is
wrong (al-amr bi-l-maʿruf wa-l-nahy ʿan al-munkar). In this literature and in the actual histor-
ical practice, courts did not take jurisdiction of a matter unless there was an actual or real
conflict. Courts had the duty to issue ah ․kām ( judgments) and not fatāwā (responsa). At the
same time, the authority and discretion of the executive to dispense summary justice or deal
out summary penalties was restricted.49 Among other limitations, in any particular case,
if either the law or the facts were disputed, the matter had to be referred to the judiciary.
Only the judiciary had the legitimate power to interpret the law and establish the facts in
any dispute. Interestingly, although varying according to time and place, it was not unusual
for litigants to appoint a wakı̄l (agent or lawyer) to argue on their behalf in civil cases, and
it was common for litigants to solicit and obtain a fatwa in support from respected jurists,
and judges considered such conflicting responsa as advisory or persuasive in authority. Fur-
thermore, contrary to the unfounded generalizations that plague the field, again depending
on time and place, very often there was an appellate process and sophisticated procedural
rules regulating the circumstances under which a higher court may overrule a lower court
within the same jurisdiction, or fail to recognize the judgment of another Islamic court
from a different jurisdiction.
Perhaps as a practical result of the epistemology of plural orthodoxy, in Islamic jurispru-
dence, 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
27
Khaled Abou El Fadl
right, and it could not negate or replace the duties and responsibilities imposed by an in-
dividual’s conscience.50 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.51 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 Shafiʿi court.
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 (sult․at al-ilzām).
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 consider-
able jurisprudential debates.52 It was argued that at times, it becomes incumbent to disobey
a lawful judgment or command, even if this might mean having to suffer negative repercus-
sions. Typically, this involved situations where a person conscientiously believed that harm or
injury would be done to innocent parties, or scenarios implicating personal virtue or honour,
such as marital status. In the classical juristic tradition, there are situations where the state,
acting through a judge, could rightfully punish disobedience to its commands, and yet an
individual would have an obligation to disobey the state’s commands. In the Hereafter, God
would reward such an individual for his sincerity, and at the same time, possibly reward the
judge for his effort.
Because of the reality of pluralist legal orthodoxy, in Islamic jurisprudence it is entirely
conceivable, even where Shariʿah 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.53 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. Importantly, the space for individual
conscience was not simply a product of legal pluralism. It is not only the diversity of legal
opinions that allowed for a duality between the rule of law and rule of conscience, but the
very nature of Islamic law. On many issues, the rule of law or the way a litigant would be
treated by the legal system would not mirror how God would adjudge a matter in the Hereaf-
ter. Put differently, an act could be a sin before God, but this does not necessarily entail legal
liability in this world; similarly, legal liability does not necessarily mean that an act is sinful.
Sin and legal liability overlap, but in many situations, are not identical.54
A significant by-product of the institutions of legal pluralism was the rather fascinating,
but little understood, practice of multiple territorially overlapping legal jurisdictions. There
were many historical examples of governments establishing as many as four court judicial
jurisdictions, each following a different madhhab, with a challengingly complex set of con-
flict of laws rules regulating subject matter and en persona jurisdiction.55 Normally, however,
the predominant madhhab affiliation of the population of a region would play a determina-
tive role on the madhhab followed by a court. Furthermore, frequently, there was a senior or
chief judge settling issues of adjudicatory law within each madhhab. In addition, a common
practice was to appoint a supreme chief judge who enjoyed ultimate appellate authority,
as far as the positive law was concerned, over all the judicial jurisdictions. Although the
research in this field is poorly developed, there is considerable evidence that the supreme
chief judge, although personally belonging to a particular madhhab, in his official function,
sought to resolve conflict among the jurisdictions through a synchronistic or conciliatory
methodology known as al-tawfı̄q bayn al-madhāhib (resolving and balancing between the
differences among the schools of legal thought), which was a well-developed jurisprudential
field and specialty.
28
The rights of God and human beings

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 (h ․uqūq
Allah) and the rights of humans (h․uqūq al-ʿibād). 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 (pl. of
․aqq) referred to the province, jurisdiction, boundaries, or limits of God (h
h ․udūd Allah). Inter-
estingly, ․huqūq al-ʿibād 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 com-
mitted against His boundaries or commands.56 But unlike God, human beings do need an
agent empowered to defend them and redress any transgressions committed against their per-
son 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 His 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 ․hudūd penalties, Muslim jurists asserted that there is a category of
Divinely ordained punishments that apply to violations committed against a class of mixed
․uqūq mukhtalit․a), which are shared by God and human beings. As a category, mixed
rights (h
rights involve issues where the material interests or well-being of people are involved, but at
the same time, there is a discernible Divine Will staking a specific claim for the Divine over
these issues. In the case of the Divinely ordained ․hudūd 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 ․hudūd crimes were mentioned in the text of the
Qurʾan, a general juristic consensus was said to exist as to the Divine origin of the penalties.
In the classical tradition, fornication and adultery (zinā), robbery (sariqa), consumption of
alcohol, defamation (qadhf ), and apostasy (ridda) were the violations most commonly included
within the ․hudūd. The real paradox of the ․hudūd is that while in contemporary Islam they
are often imagined to be the harbinger and flagship of Islamic law, in the classical tradition
the ․hudūd 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
․hudūd, the definition of the crime and the appropriate penalty became sanctified and im-
mutable. But, on the other hand, by placing it within the category of ․hudūd, the jurists effec-
tively 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, arro-
gance 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 ․hudūd. In addition to the presump-
tion of innocence in application as to all criminal accusations, Muslim jurists often cited the
injunction above in greatly circumscribing the application of the ․hudūd penalties through a
29
Khaled Abou El Fadl
variety of doctrinal and procedural hurdles. In general, repentance, forgiveness and doubt
acted to prevent the application of the ․hudūd. In dealing with the rights of God, it was always
better to forgive than to punish; repentance of the defendant acted to suspend the ․hudūd, and
all doubt had to be construed in favour of vindicating the accused.57
As far as the classical jurists were concerned, the ․hudūd, like all matters implicating the
rights of God, were better left to Divine vindication in the Hereafter. In most cases, instead
of pursuing a ․hudūd 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-h․udūd crimes, or
lesser included crimes, fell into two categories: qis․ās․ (tallion) or taʿzı̄r (penalties prescribed by
the state for offenses against public interest). Qis․ās․ was treated as a private recourse and right,
where pardon or forgiveness was always preferable, but taʿzı̄r were thoroughly profane puni-
tive 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 taʿzı̄r punishments, such as the precept that no crime
is committed unless there is prior notice, and the ban against ex post facto findings of guilt.
Muslim jurists stressed that summary executive punishments are impermissible in all cases
involving contested questions of fact or law, and that all such cases must be referred to the ju-
diciary.58 Moreover, many classical jurists placed a limit on the number of lashes that could be
imposed upon a defendant, typically with the cap ranging from 30 to 100 lashes, depending
on the nature of the criminal offense and the record of the offender. Fundamentally, how-
ever, while ․hudūd punishments were greatly circumscribed, throughout Islamic history, what
and how taʿzı̄r punishments were applied greatly varied from one time and place to another.
By circumscribing the enforcement of the rights of the Divine, the classical jurists of Islam
constrained the power of the state to act as God’s avenger.59 However, doctrinally the rights
of God, as a concept, played an important normative and ethical role in the Shariʿah 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 Shariʿah 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 involv-
ing muʿāmalāt or social intercourses and dealings, or the resolution of conflicts arising from
competing claims and interests.
What happened to the classical Islamic legal system?

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 dete-
rioration 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
30
institutions of colonial powers. Frequently, colonial powers and their dependent native elites
found that their economic and commercial interests were not well served by the pluralism
and localized indeterminacy of the Islamic legal system. In response, some colonial powers
such as Great Britain created hybrid legal institutions such as the Mixed Courts of Egypt and
the Anglo-Muhammadan courts of India. Of greater significance, however, was the fact that
colonial powers and their native ruling elites found that the organized legal guilds, and the
system of religious endowments (awqāf ) that supported these guilds, leveraged a considerable
amount of power that was often used to resist the hegemonic powers of the modern state.
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 and the network
of religious endowments, 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.
Colonial powers not only exerted considerable pressures toward greater legal uniformity and
determinism, but in what has been described as a process of cultural invasion, both the ruling
elites and the intelligentsia of various Muslim societies turned mostly to the West, and to a
much lesser extent eastern Europe, for inspiration and guidance in all fields of the arts and sci-
ences. Increasingly, educational institutions and systems in the Muslim world were fashioned
or remodeled along the lines of the educational systems of the major colonial powers. From
the beginning of the 19th century onwards, and to this very day, an academic degree from
Western schools became a cultural symbol of prestige and privilege. In the legal field, a West-
ern education became a powerful venue for upward professional mobility and social status,
and this led to a marked deterioration in the position and authority of classical Muslim jurists
as well as in the role of the centuries-old schools of Shariʿah law all over the Muslim world.
The cultural impact of Colonialism upon Muslim societies was and continues to be im-
measurable. In the 19th century, the Western-educated intelligentsia played a critical role
in the birth of the reform movement that sought to modernize Islamic law. In response to
the transplantation of European codes of law into the Muslim world, especially in the 1850s
and 1860s, Muslim legal experts, most often trained in Western institutions, sought to re-
form Islamic law by making it more deterministic, uniform, and predictable. In most cases,
this amounted to a process of codification, the most famous of which was the Mejelle (also
known as Majallat al-Ah․kām al-ʿAdliyya) completed in 1877. But these efforts at reform meant
challenging the epistemological foundations of the Islamic legal system and a radical reinven-
tion of Islamic law from a common law-like system to a system tailored after the civil law,
especially the Napoleonic Code of 1804. Very frequently, legal reformers unwittingly trans-
formed Islamic law from a system of common laws united by shared communities of legal
practice, methodological and analytical tools, technical linguistic practices, and a coherent
system of authoritativeness and legitimacy, to nothing more than a compilation of determin-
istic commands. Throughout the Muslim world, legal codifications were understood to be a
part of the necessary reforms of modernization, statehood and rule of law. Under the auspices
of purported legal reforms, throughout the second half of the 19th century and the first half
of the 20th century, Islamic courts and law were abolished and replaced by transplanted
Western legal systems. The jurisdiction of Islamic courts were limited to family and personal
law matters, and these courts enforced codified versions of Islamic personal law, structurally
modelled after the civil law system.60
31
Khaled Abou El Fadl
Modern so-called Shariʿah-law codifications exist in tension with the inherited classical
legal tradition because they limit the interpretive possibilities by imposing a positivist model
upon Islamic law. In many ways, these Shariʿah-law codifications collapse the distinction
between Shariʿah and fiqh, and while they may increase the predictability of the law, they
also substantially narrow the available space for searching or negotiating the Divine Will.
This is to say, structurally and epistemologically, these Shariʿah-law codifications exist in
considerable tension with the inherited Islamic classical legal tradition. As discussed earlier,
the substantial epistemological tension between modern codes of law and the Islamic classical
legal tradition has led a number of scholars to argue that Islamic law was not law at all.61 As
noted earlier, whether this is true depends on how we understand and define law.
What is Islamic law?

I now return to the question of what kind of law is Islamic law? As discussed earlier, some
contemporary scholars suggest that Islamic law might not be law at all. But what does this
mean? As I argued above, Islamic law is neither natural law nor a positivist legal system.
When we talk about the Islamic legal system, we are referring to a tradition of deliberative
practice that is cumulative and continuous. This deliberative and cumulative interpretive
practice forms a narrative community that shares a common linguistic practice, interpretive
and expository methodologies, and instrumentalities of authority and legality. It is fair to
say that all legal systems try to be authoritative and normative. But it is not the articulated
commands, determinations, and specified rules that define Islamic law. The specified explicit
rules pronounced by a legal system is not what defines this system. The positive command-
ments and rules are a by-product of the legal system, and not the legal system itself. This
is why the articulated commandments and rules can be re-interpreted, altered, abrogated
or replaced, and this does not re-define a legal system. This is why the specific determina-
tions, commandments, or rules can be suspended, nullified, abrogated, or in other words,
changed all the while the legal system remains the same. What counts is that the positive
legal commandments are changed according to the rules of the game within the legal system.
If the rules of law are changed whimsically or without following the interpretive dynamics
established within a legal community, these amendments or changes will be seen as lacking
authoritativeness, legitimacy, or in a word, legality.
It is not the ․hudūd punishments or any other specific legal commandment that defines
Islamic law. Any law could be changed and the legal system remains the same. However, for
a law to change legitimately and authoritatively, the change must take place through the es-
tablished interpretive and expository practices of the legal system, otherwise the change will
fail to gain recognition and acceptance within the community of practitioners functioning
within this legal system. This, however, begs the question: If the positive commandments or
rules do not define a legal system then what does?
Islamic law is founded on the Qurʾan and Sunnah. It is accurate to say that the cumulative
deliberative practices of the practitioners of Islamic law drew legitimacy and, to one extent
or another, inspiration from the Qurʾan and Sunnah. But it would not be accurate to say that
Islamic law is derived from the Qurʾan and Sunnah. Those who have studied the cumulative
discourses, debates, contestations and disputations of Muslim jurists through the course of
1,400 years would readily recognize that the Qurʾan and Sunnah play a legitimating role
in the unfolding and articulations of the Islamic legal tradition. However, Islamic law is
not simply derived or deducted from the Qurʾan and Sunnah. As a legal tradition, Islamic
law unfolded through the robust activity of legal specialists who established a process of
32
continuous use, interpretation, exposition and expansion, and a technical linguistic practice
that became the heart and soul of the legal system. The main instrumentality of the unfolding
of the Islamic legal system was not legal deduction but reasoning through analogy and from
likeness to likeness. This instrumentality would be very familiar to lawyers of the common
law system: a similibus ad similia (from like to like), according to which jurists reason from
one example to another and from one ratio legis to another. In theory, all the legal opinions
emerge from the Qurʾan and Sunnah, but in reality, these legal opinions are derived from
perceived similarities and differences from one case to another.
What is critical to this process is that there is a continuous and cumulative practice and
convention that is essentially discoursive by which jurists employ a linguistic practice to
investigate, explore and deliberate upon the indicators of the Divine Will, and reason from
one example to another. The indicators are investigated and deliberated in response to com-
munal problems, inquiries, disputations and debates. The concept of convention here is es-
sential and what I mean by convention is a deliberative practice of applied reasoning. The
convention at the heart of Islamic jurisprudence is not a philosophical project and it is not
necessarily theoretically systematic. Islamic law is not about an ultimate moral vision, and
also it is not about an ontological vision about the correct order of things in the universe.
This is not because Muslim jurists did not care about justice or ethics, but because the craft
of the lawyer is to work within the bounds of the authoritative, interpretive, incremental,
and cumulative. Muslim jurists worked incrementally from one interpretive example to an-
other in a disciplined, deliberative process of investigating textual and communal problems.
To do otherwise – to anchor legal determinations on ontological moral goals or ultimate
principles – would risk undermining the legitimacy and authority of the entire juristic en-
terprise. Of course, occasionally on exceptional issues involving pressing public policy or
ethical problems, jurists could and did use instrumentalities such as istih․sān (equity) or istis․lāh․
(breaking with on-point precedent) to achieve morally satisfactory results. But this was not
done as a matter of convention or as a regular process because doing so would in due course
undermine the integrity of the technical mechanics and legitimacy of the legal system.
Part of the essential function of law is to direct actions by providing normative guidance.
However, law does not always succeed in guiding the behaviour of its subjects. Law attempts
to provide authoritative directives to autonomous agents in the hope of obtaining their def-
erence. When or how often a legal system succeeds in directing the behaviour of agents is
pertinent to evaluating the relevance of law, but obtaining compliance with its directives
does not define a legal system. Compliance is relevant to evaluating the effectiveness of a
legal system, but not its nature. Nevertheless, legal systems do attempt to provide normative
guidance and obtain compliance and deference from a pertinent community. I am not argu-
ing that legal systems are autonomous, or that jurists are disinterested in whether people obey
the law. Jurists and the legal systems they represent are affected by sociological factors to the
extent that their own legitimacy, prestige or material interests are impacted by the determi-
nations they produce. However, in terms of their training and loyalty, jurists primarily work
within their professional guilds and receive their most immediate feedback and incentives
from fellow jurists who share their expertise and linguistic practice. This means that on most
issues, jurists rely on the relationship of trust and deference they (the jurists) hope the legal
system has built with its pertinent community, and that such a relationship will be sufficient
to comply with the legal system’s normative commands.62
This view of law is very different from the one espoused by the legal positivism of Jeremy
Bentham, John Austin or Hans Kelsen. However, law is not about rules or the threat of the use
of force – law is about a process of reasoning, linguistic use, exposition and authoritativeness.
33
Khaled Abou El Fadl
Islamic law is quintessentially about the art of the faqı̄h ( jurist) – until the birth of the faqı̄h,
there was no Islamic law and without the ‘science’ of fiqh, Islamic law cannot exist. Islamic
law is constituted of the consistent and continued use or practice of the discipline of delib-
erative reasoning with the purpose of investigating the Divine Will as it applies to the com-
munity of believers. Without the Divine Will, Islamic law is no longer Islamic. Without a
presumed community of believers who care about what God wants from them, Islamic legal
reasoning would no longer be about practical problems but would become purely abstract.
But what defines Islamic law is not whether a community of believers exists – what does
define Islamic law is the cumulative traditions of interpretation and reasoning, linguistic
practices and disciplined deliberations about the Divine Will as it applies to creation and
the community of believers. What defines Islamic law is the convention consisting of nu-
merous explorations, investigations, hypotheticals, debates and disputations about what God
demands from the community of believers. Islamic law is not about what Muslims have done
or practiced through history; it is about what a class of experts, including judges, have said
Muslims should do, or at least what God wants them to do, through history.63 The primary
instrument of Islamic law has been the sustained, deliberate and cumulative reasoning from
one example to another, one case to another, and one disputation to another. This instrument
is wielded and operated through the craftsmanship of jurists. Islamic law is a convention and
practice, but it is a convention and practice of disciplined deliberation that is purposeful
and cumulative. In many ways, Islamic law is the ongoing and continuing history of issues
and problems, but only as such issues and problems have been understood, described, and
resolved by jurists.
Notes
* Professor of Law, UCLA School of Law, and the Omar and Azmeralda Alfi Distinguished Professor
in Islamic Law. I am very grateful to Dana Lee, Zezen Zaenal Mutaqin, Misha Checkovich and my
wife, Grace Song, for their invaluable feedback and assistance.
1 The claim that Islamic law is an extreme case of jurist’s law and casuistic in nature famously belongs
to Joseph Schacht, An Introduction to Islamic Law (1964; repr. New York: Clarendon Press, 1982),
209.
2 See Baudouin Dupret, What is the Shari’ah? (London: Hurst & Co., 2018), 115.
3 Ibid., 133.
4 Ibid., 137–141.
5 See Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York:
Columbia University Press, 2013).
6 Hallaq describes this as the ‘ruin of Islamic law’. Wael B. Hallaq, ‘“Muslim Rage” and Islamic Law’,
Hastings Law Journal 54 (August 2003): 1705–1720, 1712.
7 See Murteza Bedir, ‘Fikih to Law: Secularization through Curriculum’, Islamic Law and Society 11,
no. 3 (2004): 386; Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave
Macmillan, 2011); Dora Glidewell Nadolski, ‘Ottoman and Secular Civil Law’, International Journal
of Middle East Studies 8, no. 4 (1977): 518; Haim Gerber, State, Society and Law in Islam: Ottoman Law
in Comparative Perspective (Albany: State University of New York Press, 1994).
8 Ebrahim Moosa, ‘Recovering the Ethical: Practices, Politics, Tradition’, in The Shariʿa: History,
Ethics and Law, ed. Amyn B. Sajoo (London: I. B. Tauris, 2018), 47.
9 H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71, no. 4
( February 1958): 593–629; Cristobal Orrego, ‘H. L. A. Hart’s Arguments against Classical Nat-
ural Law Theory’, American Journal of Jurisprudence 48 (2003): 297–324; H. L. A. Hart, ‘The New
Challenge to Legal Positivism (1979)’, Oxford Journal of Legal Studies 36, no. 3 (2016): 459–475;
H. L. A. Hart, ‘Law in the Perspective of Philosophy: 1776–1976’, New York University Law Review
51, no. 4 (October 1976): 538–551; Dan Priel, ‘Toward Classical Legal Positivism’, Virginia Law
Review 101, no. 4 ( June 2015): 987–1022; Andrei Marmor, ‘The Separation Thesis and the Limits
34
of Interpretation’, Canadian Journal of Law and Jurisprudence 12, no. 1 ( January 1999): 135–150;
Andrei Marmor, ‘Legal Positivism: Still Descriptive and Morally Neutral’, Oxford Journal of Legal
Studies 26, no. 4 (December 2006): 683–704; Joseph Raz, ‘About Morality and the Nature of Law’,
American Journal of Jurisprudence 48 (2003): 1–16; Joseph Raz, ‘The Identity of Legal Systems’, Cali-
fornia Law Review 59, no. 3 (May 1971): 795–815; Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’,
American Journal of Jurisprudence 19 (1974): 94–111; Joseph Raz, ‘Legal Principles and the Limits of
Law’, Yale Law Journal 81, no. 5 (April 1972): 823–854.
10 Inclusive legal positivists, as opposed to exclusive legal positivists, believe that positive law is not
necessarily separate from moral criteria. At times and under certain conditions, first order norms
(or morality) should guide judicial behaviour. Whether inclusive legal positivism or what is also
known as soft positivism is distinguishable from natural law is debatable. Kenneth Einar Himma,
‘Incorporationism and the Objectivity of Moral Norms’, Legal Theory 5, no. 4 (December 1999):
415–434; Kenneth Einar Himma, ‘H. L. A. Hart and the Practical Difference Thesis’, Legal The-
ory 6, no. 1 (March 2000): 1–44; Matthew H. Kramer, ‘On Morality as a Necessary or Sufficient
Condition for Legality’, American Journal of Jurisprudence 48 (2003): 53–82; Matthew H. Kramer,
‘On the Separability of Law and Morality’, Canadian Journal of Law and Jurisprudence 17, no. 2 ( July
2004): 315–336; Matthew H. Kramer, ‘Throwing Light on the Role of Moral Principles in the
Law: Further Reflections’, Legal Theory 8, no. 1 (March 2002): 115–144; Matthew Kramer, ‘How
Moral Principles Can Enter into the Law’, Legal Theory 6, no. 1 (March 2000): 83–108; Matthew H.
Kramer, ‘Coming to Grips with the Law: In Defense of Positive Legal Positivism’, Legal Theory 5,
no. 2 ( June 1999): 171–200; W. J. Waluchow, Inclusive Legal Positivism (Oxford: Oxford University
Press, 1994); Brian Bix, ‘Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of
Jurisprudential Debate’, Canadian Journal of Law and Jurisprudence 12, no. 1 ( January 1999): 17–34;
Brian Bix, ‘On the Dividing Line between Natural Law Theory and Legal Positivism’, Notre Dame
Law Review 75, no. 5 (August 2000): 1613–1624; Brian Bix, ‘Jules Coleman, Legal Positivism, and
Legal Authority’, QLR 16, no. 3 (Fall 1996): 241–254.
11 In Thomistic natural law theory, humans must actively participate in the eternal law of God by
using reason in conformity with the natural law to discern what is good and evil. This obligation
flows from the duty to do good and avoid evil. Daniel Mark Nelson, The Priority of Prudence:
Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics (University Park:
Pennsylvania State University Press, 1992); Steven A. Long, ‘Natural Law or Autonomous Prac-
tical Reason: Problems for the New Natural Law Theory’, in St. Thomas Aquinas and the Natural
Law Tradition: Contemporary Perspectives, ed. John Goyette, Mark S. Latkovic and Richard S. Myers
(Washington, DC: Catholic University of America Press, 2004), 165–193; Ralph McInerny, ‘On
Knowing the Natural Law’, in The Ethics of St. Thomas Aquinas, ed. Leo J. Elders and Klaus
Hedwig (Vatican City: Libreria Editrice Vaticana, 1984), 133–160; G. B. Siniscalchi, ‘Modified
Divine Commands, Atheistic Moral Realism, and Thomistic Natural Law’, New Blackfriars 96,
no. 1064 (March 2015): 419–444; Michael Betram Crowe, The Changing Profile of Natural Law
(The Hague: Martinus Nihoff, 1977); John Goyette, Mark S. Latkovic and Richard S. Myers
(eds), St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Washington, DC
Catholic University of America Press, 2004). On the development of natural law theory from the
ancient Greeks to the Christian thinkers of medieval Europe see, Fr R. O’Brien Waugh, ‘Natural
Law’, University of New Brunswick Law Journal 16 (1966): 34–48; John Finnis, ‘Natural Law The-
ory: Its Past and Its Present’, American Journal of Jurisprudence 57 (2012): 81–102; Fulvio Di Blasi,
God and the Natural Law: A Rereading of Thomas Aquinas, trans. David Thunder (South Bend, IN:
St Augustine’s Press, 2001); Howard Kainz, Natural Law: A Reevaluation (Peru, IL: Open Court,
2004); Matthew Levering, Biblical Natural Law: A Theocentric and Teleological Approach (New York:
Oxford University Press, 2008).
12 Robert P. George, ‘Natural Law’, American Journal of Jurisprudence 52 (2007): 55–76; Robert P.
George, ‘One Hundred Years of Legal Philosophy’, Notre Dame Law Review 74, no. 5 ( June 1999):
1533–1550; R. George Wright, ‘Ministers of the Law: A Natural Law Theory of Legal Authority’,
Journal of Law and Religion 26, no. 2 (2010–2011): 609–620; Philip Soper, ‘Some Natural Confu-
sions about Natural Law’, Michigan Law Review 90, no. 8 (August 1992): 2393–2423; Philip Soper,
‘Law’s Normative Claims’, in The Autonomy of Law, ed. Robert P. George (Oxford: Clarendon
Press, 1996), 215–247; Michael S. Moore, ‘Moral Reality Revisited’, Michigan Law Review 90, no. 8
(August 1992): 2424–2533; Michael S. Moore, ‘A Natural Law Theory of Interpretation’, Southern
California Law Review 58, nos 1 & 2 ( January 1985): 277–398.
35
Khaled Abou El Fadl
13 In her well-known book Sinha discusses what she calls divine and prophetic theories of law, natural
law theories, idealist theories, positivist theories, historical or Marxist theories, sociological theories,
realist theories, phenomenological theories of law, and Critical Legal Studies. See Surya Prakash
Sinha, What is Law? The Differing Theories of Law (New York: Paragon House, 1989), 53–213.
14 I am not discounting or ignoring sociological theories of law. Sociological legal theories often focus
on the scientific analysis of legal practice as a system of behaviour and tend to see law as a system of
social control. However, in my opinion, unlike positivist, natural law or interpretivist approaches,
sociological approaches provide a useful methodology for critiquing the dynamics of power in legal
practice but do not provide a satisfying way of understanding the nature of law. On sociology of
law, see Roscoe Pound, ‘Sociology of Law and Sociological Jurisprudence’, University of Toronto
Law Journal 5, no. 1 (1943): 1–20; Roman Tomasic, review of The Sociology of Law: An Introduction,
by Roger Cotterrell, Australian Journal of Law and Society 2 (1985): 90–95; Donald J. Black, ‘The
Boundaries of Legal Sociology’, Yale Law Journal 81, no. 6 (May 1972): 1086–1101; Frank Munger,
‘Sociology of Law for a Postliberal Society’, Loyola of Los Angeles Law Review 27, no. 1 (November
1993): 89–126; Rita J. Simon and James P. Lynch, ‘Sociology of Law: Where We Have Been and
Where We Might Be Going’, Law & Society Review 23, no. 5 (1989): 825–848; Richard Abel, ‘What
Else is Sociology of Law? Reflection on John Griffiths’s What is Sociology of Law?’ The Journal of
Legal Pluralism and Unofficial Law 49, no. 3 (2017): 373–379.
15 See Shaheen Sardar Ali, Modern Challenges to Islamic Law (Cambridge: Cambridge University Press,
2016), 20–22.
16 For a sustained argument of Shariʿah as nomos, see Sohaira Z. M. Siddiqui, Knowledge and Law under
the ʿAbbasids: An Intellectual Portrait of al-Juwaynı̄, (Cambridge: Cambridge University Press, 2018),
24–5, 199–106.
17 Subhi Mahmasani, Falsafat al-Tashriʿ al-Islami, 3rd edn (Beirut: Dar al-ʿIlm li-l-Malayin, 1961),
199–200; Muhammad Abu Zahrah, Usul al-Fiqh (Cairo: Dar al-Fikr al-ʿArabi, n.d.), 291; Mustafa
Zayd, Al-Maslaha fi al-Tashriʿ al-Islami wa-Najm al-Din al-Tufi, 2nd edn (Cairo: Dar al-Fikr al-ʿArabi,
1964), 22; Yusuf al-ʿAlim, al-Maqasid al-ʿAmma li-l-Shariʿah al-Islamiyya (Herndon, VA: Interna-
tional Institute of Islamic Thought, 1991), 80; Muhammad ibn ʿAli al-Shawkani, Talab al-ʿIlm
wa-Tabaqat al-Mutaʿallimin (n.p.: Dar al-Arqam, 1981), 145–151.
18 Khaled Abou El Fadl, Reasoning with God: Reclaiming Shariʿah in the Modern Age (Lanham, MD:
Rowman and Littlefield, 2014), 298–9.
19 Abu al-Walid ibn Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Cairo: Dar al-Shuruq
al-Dawliyya, 2004), 760.
20 Shams al-Din ibn Qayyim al-Jawziyya, Iʿlam al-Muwaqqiʿin ʿan Rabb al-ʿAlamin (Beirut: al-Maktaba
al-ʿAsriyya, 2003), 3:13.
21 Intisar Rabb, ‘The Islamic Rule of Lenity: Judicial Discretion and Legal Canons’, Vanderbilt Journal
of Transnational Law 44: 1299–1351, 1329–30 (2011); Intisar Rabb, Doubt in Islamic Law: A History
of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press,
2015), 185–225; Rami Koujah, ‘A Critical Review Essay of Anver M. Emon’s Islamic Natural Law
Theories’, UCLA Journal of Islamic and Near Eastern Law 14, no. 1 (2015): 1–28.
22 Intisar Rabb writes that Muslim jurists used ‘legal canons to thread the needle of power …’ See
Intisar Rabb, ‘The Curious Case of Bughaybigha’, 661–883; ‘Land and Leadership in Early Islamic
Societies’, in Justice and Leadership in Early Islamic Courts, ed. Intisar Rabb and Abigail Krasner Bal-
bale (Cambridge, MA: Harvard University Press, 2017), 29.
23 Jurists often debated whether and to what extent moral laws are intuitively known or should be
known. For instance, are the prohibitions against lying, cheating, stealing and murder known, or
should they be known intuitively? Likewise, they debated whether the prohibition of fornication,
adultery and other sexual crimes are intuitively or naturally known or should be known.
24 Mahmasani, Falsafat al-Tashriʿ, 59; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence,
rev. edn (Cambridge: Islamic Texts Society, 1991), 285.
25 Muhammad Abu al-Harith al-Ghazzi, Mawsuʿat al-Qawaʿid al-Fiqhiyya (Beirut: n.p., 1995), 1:33;
Ahmad ibn Muhammad al-Zarqa, Sharh al-Qawaʿid al-Fiqhiyya, ed. Mustafa Ahmad al-Zarqa, 4th
edn (Damascus: Dar al-Qalam, 1996), 227–229; Mahamsani, Falsafat al-Tashriʿ, 200–202; C. R.
Tyser (trans.), The Mejelle: Being an English Translation of Majallah-el-Ahkam-Adliya and a Complete
Code on Islamic Civil Law (Lahore: Punjab Educational Press, 1967), 8.
26 Abu al-Maʿali al-Juwayni, Kitab al-Ijtihad min Kitab al-Talkhis (Damascus: Dar al-Qalam, 1987),
50–51.
36
27 Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi
(Salt Lake City: University of Utah Press, 1992), 734–738.
28 Mahmasani, Falsafat al-Tashriʿ, 168; Kamali, Principles of Islamic Jurisprudence, 197; Hallaq, Islamic
Legal Theories, 83–84.
29 See Ahmad Zaki Hammad, Islamic Law: Understanding Juristic Differences, 44. This statement has also
been attributed to al-Shafiʿi. Another version of this report states, ‘Abu Hanifah is reported to have
said: ‘We know [that] this [position] is one opinion, and it is the best we can arrive at. [If ] someone
arrives at a different view, then he adopts what he believes [is best] and we adopt what we believe [is
best].’ Abu Muhammad ibn Saʿid ibn Hazm, Kitab al-Fasl fi al-Milal wa-l-Ahwaʾ wa-l-Nihal (Egypt:
al-Matbaʿah al-Adabiyya, 1317 A.H.), 2:46; Mahmasani, Falsafat al-Tashriʿ, 42.
30 Ahmad ibn ʿAbd al-Rahim al-Dahlawi, Shah Wali Allah, al-Insaf fi Bayan Sabab al-Ikhtilaf fi al-
Ahkam al-Fiqhiyya (Cairo: al-Matbaʿa al-Salafiyya, 1385), 12; Jalal al-Din ʿAbd al-Rahman al-
Suyuti, I khtilaf al-Madhahib, ed. ʿAbd al-Qayyim Muhammad Shafiʿ al-Bastawi (Cairo: Dar
al-Iʿtisam, 1404 A.H.), 22–23.
31 Shah Wali Allah, al-Insaf, 12; al-Suyuti, Ikhtilaf al-Madhahib, 22–23; Yasin Dutton, The Origins of
Islamic Law: The Qurʾan, the Muwattaʾ, and Madinan ʿAmal (Richmond, Surrey: Curzon Press, 1999),
29; Patricia Crone and Martin Hinds, God’s Caliph: Religious Authority in the First Centuries of Islam
(Cambridge: Cambridge University Press, 1986), 86. Incidentally, there is a disagreement over
whether the Caliph in question was al-Mansur (d. 158/775) or Harun al-Rashid (d. 193/809).
32 Al-Juwayni, Kitab al-Ijtihad, 61.
33 Sayf al-Din Abu al-Hasan ʿAli ibn Abi ʿAli ibn Muhammad al-Amidi, al-Ihkam fi Usul al-Ahkam,
ed. ʿAbd al-Razzaq ʿAfifi, 2nd edn (Beirut: al-Maktab al-Islami, 1402 A.H.), 4:183; Jamal al-Din
Abi Muhammad ʿAbd al-Rahim ibn al-Hasan al-Asnawi, al-Tamhid fi Takhrij al-Furuʿ ʿala al-Usul,
3rd edn (Beirut: Muʾassasat al-Risala, 1984), 531–534; Muhammad ibn al-Hasan al-Badakhshi,
Sharh al-Badakhshi Manahij al-ʿUqul maʿa Sharh al-Asnawi Nihayat al-Sul (Beirut: Dar al-Kutub
a l-ʿIlmiyya, 1984), 3:275–281; Abu Hamid al-Ghazali, al-Mustasfa, 2:375–378; al-Juwayni, Kitab
al-Ijtihad, 41; Abu al-Thanaʾ Mahmud ibn Zayd al-Lamishi, Kitab fi Usul al-Fiqh, ed. ʿAbd al-Majid
Turki (Beirut: Dar al-Gharb al-Islami, 1995), 202–203; Shihab al-Din al-Qarafi, Sharh Tanqih
al-Fusul fi Ikhtisar al-Mahsul fi al-Usul, ed. Taha ʿAbd al-Raʾuf Saʿd (Beirut: Dar al-Fikr, 1973), 440;
Fakhr al-Din al-Razi, Al-Mahsul fi ʿIlm Usul al-Fiqh, ed. Taha Jabir al-ʿAlwani, 3rd edn (Beirut:
Muʾassasat al-Risala, 1997), 6:34–35, 6:43–50; Zaki al-Din Shaʿban, Usul al-Fiqh al-Islami (Egypt:
Matbaʿat Dar al-Taʾlif, 1965), 418–419.
34 Intisar Rabb describes al-Juwayni’s argument as substantive and procedural legal minimalism. See
Intisar Rabb, ‘Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear’,
in Law and Tradition in Classical Islamic Thought: Studies in Honor of Professor Hossein Modarressi, ed.
Intisar Rabb, Asma Sayeed, Michael Cook and Najam Haider (New York: Palgrave Macmillan,
2013), 145–166.
35 On Islamic legal pluralism, see Sherman Jackson, Islamic Law and the State: The Constitutional Juris-
prudence of Shihab al-Din al-Qarafi (New York: Brill, 1996); Intisar Rabb, ‘Reasonable Doubt in
Islamic Law’, Yale Journal of International Law, 40 (2015): 41–94, 90–91. Also see Muhammad Fadel,
The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges
and Rulers (New Haven, CT: Yale University Press, 2017), 1–55. Fadel contends that Qarafi argued
Islamic legal pluralism is hinged on judicial determinations. Once a judge issues a decision (h․ukm)
the judge’s decision becomes God’s law and there is a moral obligation to obey such a judgment.
36 The Arabic is ‘kull mujtahid mus․ı̄ b’ and ‘li-kull mujtahid nas․ı̄ b’.
37 See Jasser Auda, Maqasid al-Shari’ah as Philosophy of Islamic law (Herndon, VA: International Institute
of Islamic Thought, 2008); Idris Nassery, Rumee Ahmed and Muna Tatari (eds), The Objectives of
Islamic Law: The Promises and Challenges of the Maqasid al-Shari’ah (London: Rowman and Littlefield,
2018).
38 See Sherman Jackson, ‘The Primacy of Domestic Politics: Ibn Bint Al-Azz and the Establishment
of the Four Chief Judgeships in Mamluk Egypt’, Journal of the American Oriental Society 115 (1995):
52–65; Baber Johansen, ‘Truth and Validity of the Qadi’s Judgment: A Legal Debate among Sun-
nite Muslim Jurists from the Ninth to the Thirteenth Centuries’, Recht van de Islam 14 (1997): 1–26.
39 See George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Ed-
inburgh University Press, 1981); George Makdisi, ‘The Guilds of Law in Medieval Legal History:
An Inquiry into the Origins of the Inns of Court’, Zeitschrift fur Geschichte der arabisch-islamischen
Wissenschaften, ed. Fuat Sezgin (Frankfurt: Institut fur Geschichte der arabisch-islamischen
37
Khaled Abou El Fadl
Wissenschaften, 1984); Monica Gaudiosi, ‘The Influence of the Islamic Law of Waqf on the Devel-
opment of the Trust in England: The Case of Merton College’, University of Pennsylvania Law Review
136 (1988): 1231–1261.
40 Muhammad Amin ibn ʿUmar ibn ʿAbidin, ‘Nashr al-ʿArf fi Binaʾ Baʿd al-Ahkam ʿala al-ʿUrf ’, in
Majmuʿat Rasaʾil Ibn ʿAbidin (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, 1970): 112–163; Muhammad
Abu Zahrah, Usul al-Fiqh (Cairo: Dar al-Fikr, n.d.), 217–219; Muhammad Khalid Masud, Islamic
Legal Philosophy: A Study of Abu Ishaq al-Shatibi’s Life and Thought (New Delhi: International Islamic
Publishers, 1989), 226, 293–299.
41 Muhammad Saʿid Ramadan al-Buti, Dawabit al-Maslaha fi al-Shariʿah al-Islamiyya, 6th edn (Bei-
rut: Muʾassasat al-Risala, 1992), 207–216, 285–357; ʿAllal al-Fasi, Maqasid al-Shariʿah al-Islamiyya
wa-Makarimuha, 5th edn (Beirut: Dar al-Gharb al-Islami, 1993), 137–140; Mahmasani, Falsafat
al-Tashriʿ, 172–175; John Makdisi, ‘Legal Logic and Equity in Islamic Law’, American Journal of
Comparative Law 33 (1985): 63–92; Kamali, Principles of Islamic Jurisprudence, 167–168; Hallaq, Islamic
Legal Theories, 107–113; Dutton, Origins of Islamic Law, 34.
42 Mahmasani, Falsafat al-Tashriʿ, 172–175; Kamali, Principles of Islamic Jurisprudence, 253–257.
43 For instance, Najm al-Din al-Tufi (d. 716/1316) was widely criticized by his fellow jurists when he
suggested that public interest could be an independent and sufficient source of law even with the
existence of text that is on point on a particular issue. Mustafa Zayd, al-Maslaha fi al-Tashriʿ al-Islami
wa Najm al-Din al-Tufi, 2nd edn (Cairo: Dar al-Fikr al-ʿArabi, 1964), 65–172; al-Buti, Dawabit al-
Maslaha, 178–189; Masud, Islamic Legal Philosophy, 165, 174–175; Hallaq, Islamic Legal Theories, 208;
Ihsan Abdul Baghby, ‘Utility in Classical Islamic Law: The Concept of “Maslahah” in “Usul al-
Fiqh”’, (PhD diss., University of Michigan, 1986), 166–170.
4 4 See Sherman Jackson, ‘Fiction and Formalism: Toward a Functional Analysis of Usul Al-Fiqh’, in
Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 178.
45 Abu Hamid al-Ghazali, Ihyaʿ ʾUlum al-Din, ed. Ahmad ʿInaya and Ahmad Zahwa (Beirut: Dar
al-Kitab al-ʿArabi, 2008), 28.
46 Ibid., 33.
47 See Ibn Rushd, Bidayat al-Mujtahid, 759.
48 Abu al-Hasan al-Mawardi, Al-Ahkam al-Sultaniyya wa-l-Wilaya al-Diniyya (Beirut: Dar al-Kutub
al-ʿIlmiyya, 1985), 250; Abu al-Hasan al-Mawardi, Adab al-Qadi, ed. Muhammad Muhyi Hilal
Sarhan (Baghdad: Matbaʿat al-Irshad, 1971): 14–16.
49 Rabb, ‘Reasonable Doubt in Islamic Law’, 67–69.
50 In this context, Ibn Rushd cites the Prophet’s narrative in which the Prophet explained that he (the
Prophet) is but a human being, and the Prophet warned that in adjudicating disputes, if he rules in
favour of an undeserving party, this ruling will not absolve the unjust litigant from liability before
God in the Hereafter. The Prophet explained that he may be swayed by the arguments of the liti-
gants one way or the other, and therefore, unknowingly rule in favour of the unjust party. But this
judgment does not absolve the wrongful party from liability in the Hereafter. Ibn Rushd, Bidayat
al-Mujtahid, 748.
51 Mohammad Fadel (trans.), The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the
Administrative Acts of Judges and Rulers (New Haven, CT: Yale University Press, 2017), 1–55. Fadel
argues that the 13th-century jurist al-Qarafi did in fact maintain that a judge’s decision becomes
God’s law and there is a moral obligation to obey such a judgment.
52 Baber Johansen, ‘Truth and Validity of the Qadi’s Judgment: A Legal Debate Among Sunnite Mus-
lim Jurists from the Ninth to the Thirteenth Centuries’, Recht van de Islam 14 (1997): 1–26.
53 See Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University
Press, 2001).
54 For instance, even if an act would not be considered legal coercion, exercising undue influence or
taking advantage of someone’s weakness could be a sin, even if not legally justiciable. Similarly, fail-
ing to feed a starving person who subsequently dies of starvation might not lead to criminal culpabil-
ity in this life, but it is a grave sin. See Muhammad ibn Muhammad al-Shirbini, Mughni al-Muhtaj ila
Maʿrifat Maʿani Alfaz al-Minhaj, ed. Muhammad Khalil ʿAyatani (Beirut: Dar al-Maʿrifa, 1997), 4:415;
Muhammad ibn Ahmad al-Sarakhsi, Kitab al-Mabsutt, ed. Kamal ʿAbd al-ʿAzim al-ʿInani (Beirut:
Dar al-Kutub al-ʿIlmiyya, 2001), 24:77; Abu Bakr ibn Masʿud al-Kasani, Kitab Badaʾiʿ al-Sanaʾiʿ fi
Tartib al-Sharaʾiʿ (Cairo: Zakariyya ʿAli Yusuf, 1968), 9:4483; Dana E. Lee, ‘At the Limits of Law:
Necessity in Islamic Legal History’ (Princeton University, unpublished dissertation, 21 June 2018);
Khaled Abou El Fadl, ‘The Common and Islamic Law of Duress’, Arab Law Quarterly 2 (1991): 6.
38
55 Sherman Jackson, ‘The Primacy of Domestic Politics: Ibn Bint al-Aʿazz and the Establishment of
the Four Chief Judgeships in Mamluk Egypt’, Journal of the American Oriental Society 115 (1995):
52–65; Joseph Escovitz, ‘The Establishment of Four Chief Judgeships in the Mamluk Empire’,
Journal of the American Oriental Society 102 (1982): 529–31; Yossef Rappoport, ‘Legal Diversity in
the Age of Taqlid: The Four Chief Qadi under the Mamluks’, Islamic Law and Society 10, no. 2
(2003): 210–228. See also E. Tyan, Histoire de l’oranisation judicaire en pays d’Islam, 2nd edn (Leiden:
Brill, 1960).
56 Abou El Fadl, Reasoning with God, 320.
57 See Intisar Rabb, ‘Doubt in Islamic Law’, 185–225; Luqman Zakariyah, Legal Maxims in Islamic
Criminal Law: Theory and Applications (Leiden: Brill, 2015).
58 Cherif Bassiouni, The Shariʿa and Islamic Criminal Justice in Time of War and Peace (Cambridge: Cam-
bridge University Press, 2013), 132–144.
59 See Intisar Rabb, ‘Society and Propriety: The Cultural Construction of Defamation and Blas-
phemy as Crimes in Islamic Law’, in Accusations of Disbelief in Islam: A Diachronic Perspective on Takfir,
ed. Sabine Schmidtke, Camila Adang and Hassan Ansari (Leiden: Brill, 2016), 434–62.
60 J. N. D. Anderson, Law Reform in the Muslim World (London: Athlone Press, 1976).
61 On the ‘invention of Islamic law’, see Dupret, What is the Shari’ah?, 133–164.
62 On agency, autonomy, deference and authority in Islamic law, see Khaled Abou El Fadl, Speaking
in God’s Name: Islamic Law, Authority, and Women (Oxford: Oneworld Press, 2001), 96–133.
63 Incidentally, in their eagerness to reform Islamic law, some contemporary Muslims have attempted
to popularize or ‘democratize’ Islamic law by contending that lay Muslims are entitled to practise
ijtihad or that all Muslims have a right to participate in the production of Islamic law. As egalitarian
as these arguments might sound, such arguments often lack systematic coherence, and they threaten
to unravel the very logic of a legal system. Moreover, these egalitarian arguments often raise the
specter of transforming Islamic law into the stereotypical paradigm of qadi justice or whimsical
justice unfettered by evidence, precedent, or method. On qadi justice see Intisar A. Rabb, ‘Against
Kadijustiz: On the Negative Citation of Foreign Law,’ Suffolk University Law Review 48, no. 2
(2015): 343–378.
39
Part I
Jurisprudence and ethics
1
Shariʿah, natural law and
the original state
Ahmed Izzidien
Introduction
Natural law proposes to traverse boundaries set up by unique legal epistemologies. In an
attempt to do so, natural law presents an opportunity for delineating a depolarizing com-
mon ground for normally incompatible and competing legal theories. To characterize the
dynamic when concepts of natural law appeared within the deliberations of legal theoreti-
cians of the Muslim traditions, this chapter shall attempt to chart those ideas that presented
in Islamic legal theories when they interacted with concepts of natural law. It shall consider
at the intellectual challenges this dynamic produced and the legal theories that emerged.
In terms of the organization of the chapter, it begins with the story of a boy who, to his
surprise, finds himself marooned on an island. The boy attempts, based on first principles, to
arrive at a formulation of law and a theory of being in the cosmos. For the second part, the
chapter charts those ideas that came into being within Islamic legal traditions – from their
formative period to contemporary times – that relate to natural law. The third and final part
of the chapter considers how these deliberations came to form the political heritage that has
articulated itself in parts of our world today.
The unexpected journey
The story of the island-marooned boy. Building a case

for natural law based on first principles.
A young boy woke in his canoe as it edged itself onto the beach of a seemingly deserted
island. He could not recall how it came to be that he had found himself adrift. He appeared
to be in a state of amnesia. Otherwise healthy, he began to explore the island. Of the life he
found were small yet organized colonies of insects. In his observation, he considered that
the perpetuation of one colony was dependent on a previous one. It appeared that all living
things on the island were in an existential need of a predecessor. Yet, he reasoned that to
bring this chain of events into being, there must have been a moment in the past that needed no
predecessor – otherwise, the boy reasoned, this chain of events could not have begun. This
led the boy to hold that an absolute being must have existed, one without beginning.
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Further, if it was absolute, there would be no room for a ‘second’ absolute being, as to the
boy, this would mean the first was not actually absolute – a necessary condition for the life he
observed around him. Thus, if the boy could not have been, by definition, made absolute,
and indeed was not absolute, he asked, what was his own nature?
Given the absoluteness of the original being, the boy reasoned that the best state of being
for any other being would be one that was able to derive the most, in every possible manner,
from the absoluteness of the absolute being. That is, from absoluteness. For this, he reasoned
that a non-absolute being would have to be the complete opposite of absoluteness, that is, a
being that is absolutely and inherently in need ( faqı̄r bi-dhātihı̄). Thus, the boy saw his inher-
ent need and mortal nature as perfect for a being of his kind.
This put him as a form of ‘key’ to the ‘lock’ that was the absolute being. As another abso-
lute ‘lock’ could never be brought into existence by definition, a key was best placed to gain
maximally from the said absolute lock. Thus he reasoned that he had been given a chance
to gain from the absolute in the best possible manner. It appeared to him that the absolute
being had a good will towards him. This was particularly true to him given that the absolute
being – in being absolute (ghanı̄ bi-dhātihı̄) – had no inherent need for him, by definition.
As the boy began to live on the deserted island, he discovered more of his innate needs.
Where he felt helpless and could not will for something to occur, he would consider: His own
perfection, the best state of being for himself to be in, was the polar opposite of the Absolute
being. Since the absolute being was by definition able to grant its own will, and since the ab-
solute being, in wishing good for him, had made the boy its polar opposite, then by definition
the boy should be inherently unable to grant his own will. The boy reasoned that the opposite
of granting one’s will was to ‘ask’. The act of asking the absolute being became the ultimate
realization of this polarity – one between the absolute and its opposite. In an analogy, the
boy, short of being an absolute being that inherently did not require food, would find that its
opposite state, one that was able to enjoy food, was the best state of being for him. Thus, to
the boy, asking became a realization of the grace of the absolute being towards him, an essence
of the relationship – mukh al-ʿibāda. This led the boy to hold that the absolute would still be
influential in the world today, otherwise there would be no apparent reason for instilling such
a need to ask in him.
As time passed, the boy felt an innate desire for certain elements on the island and an
aversion to others. He was comfortable with what brought him benefit (mas․lah․a) yet not with
harm (mafsada).
For now, he could fish to his own desire; yet, he wondered, what if another like him were
to appear? He could see either the domination of one over the other, with one gaining plea-
sure, the other sadness, or the cooperation of the two.
He held that even if he were to dominate, he would not wish to be on the receiving end
of such dominance. A person seemed innately repulsed by the idea of being on the receiving
end of an act of unfairness. Thus he held that all transactions would be best based on this idea,
this axiom, ‘Do onto others what you would wish upon yourself ’. He appeared to be able to
discern a distinction between acts that he would wish for others – and by extension himself,
and acts that he would not wish on others – and by extension himself. The first acts he called
‘Good’, the latter he called ‘Bad’.
It appeared to the boy that, given his innate need, he would appreciate when he was un-
able to fish, due to injury for example, that another boy would help him. Based on the above
axiom, he held that he too should be willing to help others with the same.
Then one day a new boy appeared, then many more.
44
Shariʿah, natural law and the original state
The island’s society

In living with the other boys, in enjoying the food of the island, the boy felt an innate grate-
fulness to the original source. However, the boy then realized, that he could choose not to
thank the absolute being or those around him – though he would not wish the same for himself.
Thus he realized that while he had been given the opportunity to gain maximally from the
absolute being, he could also fall short of what he felt was ‘owed’ based on the axiom. Thus
he called these ‘rights’ – the absolute being’s ‘rights’ and those of the other boys. Further,
seeing as he had not brought the other boys into existence, he held that he had no say over
them; they were inherently not his, thus not at his disposal. All of the boys including himself
were, however, in the mind of the boy, of the absolute. Thus he came to the conclusion that
while he had the best placement – inherent – in himself to live, he could fall short of these
‘rights’. Yet, to the boy, these were not unreasonable rights. They were in accordance with
the axiom and they seemed innate. Thus it appeared that the absolute being had afforded him
grace by giving him the opportunity to live life in a manner that was also in line with his
innate nature.
This being the case, and based on the first principles he had elaborated, the boy reasoned
that any pain he endured must be due to a wisdom of the absolute that he had not yet realized.
Then came the calamities. A number of disagreements and fights broke out between
the boys. His ankle was badly injured. He felt the urge to retaliate, to become bitter and
vengeful. Retreating for time to consider, he came to a realization: He seemed innately
cognizant that in choosing between Good and Bad, he would have wished any other boy to
take the Good option. This would have been the Good thing to do since he would want it for
himself. He realized that while he could take the Bad option and strike down his adversaries,
he could gain by acting on the Good, given his innate appreciation for it. While he may
outwardly be in pain, inwardly, he felt innately at peace in choosing this option as he felt he
had gained something he would not have otherwise, namely compassion and patience. These
two qualities he would wish for others. Thus it appeared that given his innate appreciation
for Good, he had gained by choosing to do Good.
Yet, what about compensation? He held, according to the axiom and by extension his
‘rights’, that the boy who injured him should compensate him. Yet what ‘right’ would he
have to force the boy to compensate him?
He reasoned: One boy had no right over another – he had not created him. Thus to main-
tain the victim’s right to not be harmed, one could use force to deflect an attack. After such
an attack, the offender then ‘owed’ what he had damaged. Such was in line with the axiom
and in line with his ‘rights’. Further, even though the offending boy had acted in a Machia-
vellian manner, seeing harm as justifiable for personal gain, the offending boy still would not
wish the same to be done to him. The axiom appeared inescapable, innate. Even if a person
saw being unfair as justified for gaining power, the same person would not wish it on himself.
There appeared to the boy to be an innate discontentment with unfairness. Further, in the
offending boy’s own innate axiom, he also recognized it as ‘Bad’. His own self could hold him
to account, and at heart, the offending boy would not want it for himself.
The other boys, having subscribed to the same axiom and idea of ‘rights’, helped him
obtain what was customarily known to be the amount of fish one could gain without such an
injury.
From that day, the boys etched in a piece of timber two axioms: ‘No one shall harm an-
other’ and ‘Custom serves as precedent’.
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Ahmed Izzidien
The idea of such etching was new to him and he quickly realized that the more boys that
went against their innate axiom, the longer the list of ‘laws’ would become. Then an event
occurred that challenged the very place of the first axiom.
One of the young men had been caught by a wild animal. Armed only with spears, the
others realized it meant the death of the boy if they attempted to spear the wild animal.
While the axiom was that no one is to be harmed, they knew that the animal would turn and
kill the younger boys trapped nearby. Not doing anything would result in a greater harm.
Thus the boy reasoned that, in this case, throwing the spears was acceptable, though in and
of itself a Bad act. The spears were cast, both animal and boy perished. Thus was born a new
perspective – one based in circumstance, its premise: ‘An act can be acceptable though Bad –
for its own sake – due to an impinging circumstance’.
The main distinguisher between this and the axiom was that such circumstances, by
virtue of the first axiom, must be ‘actively avoided and, where possible, removed’. Thus the third
axiom became: ‘Harm must be removed’.
None of the boys faced punishment, as their appeared intention was Good. The fourth
axiom was born: ‘Actions are considered by intention’.
These axioms continued to be etched into the plank of wood. This became useful to
some, acting as a small and quick reminder where required.
A market had grown where the fish were often caught. One day a disagreement broke out
over an order of fish. One boy had paid another for some. However, as it transpired, the seller had
caught no fish, but had made the sale based on what he expected to catch that morning. As an ax-
iom was to treat others fairly, this was deemed an unfair transaction, as the buyer could not collect
on his purchase. Therefore, such practice was stopped, and the seller returned the buyers money.
As the number of those on the island grew, new circumstances came about. These en-
tailed new considerations of past judgements made in light of the axioms. One such example
was buying a boat to go fishing. Based on the judgement that it was unfair to sell something
that was absent, the default expectation would be that a boat ought to be built first before it
could be sold. However, given the great costs and time involved in constructing a new boat
for fishing, a boy would find it difficult and highly risky to build if no buyer was potentially
interested. This appeared to put the seller, the one with the skill to build, in a seemingly
unfair position. As such, the judgement was re-evaluated. Sellers could sell an unbuilt boat
but with the proviso that they provide the customer a full specification of what was expected
of the boat to include, a time of delivery and guarantee. Thus the axiom: ‘Hardship brings
ease’ was born, allowing for dispensations to be made where and when needed so long as the
axioms were seen through. In such a case, the ‘law’ had been adjusted to meet the objective of
the axiom. Hence the legal philosophy of the Island of Boys was articulated: The objectives
of the axioms are of greater importance than the axioms.
As the boys grew older, it was said that the boy, now a man, heard a voice from the heav-
ens, a voice from the absolute. A set of axioms was revealed. They were:
There should be no harming others nor the reciprocation of harm. Harm should be
lifted. Actions are by intention. Certainty is not lifted with doubt. Hardship brings ease.
Custom has authority. These laws are best lived according to the tradition ‘Love for your
brethren what you love for your self ’.
The boy was surprised to be the recipient of such a message, yet it came as no surprise to him
that the axioms and the tradition were consistent with what had been practised.
Here ends the story.
46
Does the boy have religion?

It may appear that the five axioms arrived at by the boy are in line with the five major axioms
of Islamic jurisprudence (al-qawāʿid al-fiqhiyya al-kubrā):1 the tradition ‘to wish for one’s breth-
ren what one wishes for oneself ’, appearing in the sayings of Muhammad;2 the uniqueness,
unity and absoluteness of God, being the attestation of the Muslim belief; the legal philoso-
phy that ‘the objectives behind the law are of greater consequence than the laws themselves’,
being a formulation of the spirit of Islamic law. All of these have led some to ask: Was the
original nature of religion and law, as explained by the Prophet Muhammad, one of a ‘re-
minder’ of what humans were innately aware of, especially given that the term ‘reminder’ is
often used in the Qurʾan to describe itself and the message (6:90)?
In legal terms, the revelation of the Qurʾan is remembered by the community as a piece-
meal affair: verses appeared in the context of situations.3 Qurʾanic laws did not constitute a
system, but pointed to the elaboration of a basic legal structure.4 The Qurʾan often spoke of
law as basically being constituted of the imperative of justice. With the lack of a set canon,
the imperatives of ʿadl ( justice) and qis․․t (equity) were mentioned without being defined. The
audience of the Qurʾan was assumed to be naturally familiar with these terms without the
need of having defining texts.
Indeed, the legal philosopher Ibn Rushd (d.595/1198) makes an observation that scholars
of Islam are in wide agreement that the main tenants of belief, such as belief in God, can rest
on rational deduction. Thus, he posits, why should it be the case that for other categories,
such as law, one must shy away from reason? Indeed, Ibn Tufayl (d.581/1185) attempted to
demonstrate with the story of Hay ibn Yaqzan that the human mind could, without any
theological or intellectual instruction, attain truth.5
Why was the boy marooned on the island?

In our story, the boy held that his nature was poised to gain maximally from the nature of
the absolute being. The boy’s nature innately favoured Good over Bad. This was true even
with the Machiavellian among the boys who were repulsed by the idea of themselves being
treated unfairly. The ‘rights’ he felt he owed God and his society appeared both fair and in
line with the axiom he had come to. Thus it appeared to him that his existence was one that
came out of the grace of God.
What of the Islamic source material on this question of ‘why God created the world’? The
chapter now turns to the opinions voiced by interpreters of the Qurʾan on this topic.
Reading through the Qurʾan sixty-two interspersed verses comment on the area.6 The
key terms used in the Qurʾan are: to make apparent through circumstance (yabtalı̄), to deter-
mine or purify (tamh․ı̄s․), to reward (li-yajzı̄), to know (li-yaʿlam), God’s blessing (niʿmat Allah),
and God’s method (sunnat Allah). I will summarize my view of these here before producing
the views of the literature held on this topic.
The crux of the verses appear to revolve around God creating humankind to have the op-
portunity to live a life that is both in line with what they already know to be good and right.
They will experience circumstances that allow them to choose between good and bad (67:2;
3:186; 6:165; 21:35), and in doing so they will come to know, for themselves, whether they are
true to what they hold to be innately good and rightful (33:24; 39:9; 3:140, 142, 166; 9:16; 29:2;
47:31; 3:141). Each circumstance will be within each person’s capacity (2:286), and each of these
circumstances is integral to life going on (2:251; 22:40). Through these decisions, individuals
will attain characteristics that match their choices (91:9). The highest virtue in life is given
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Ahmed Izzidien
as that of witnessing, knowing and worshipping God (51:56; 2:21; 5:97) in a world created in
truth (6:32; 44:38; 46:3) with rights – such as the virtue of justice and abhorrence of murder
(7:29, 33; 6:151–152; 55:9). In His mercy, God sent prophets to humankind so as to remind
them of such (6:90; 25:56) and everyone will be rewarded fairly for their choices (53:31;
35:30; 39:35). God will never be unfair to anyone (3:108; 28:59; 41:46). The message of the
Qurʾan was also sent as a reminder that God wishes not for people to experience difficulty
with the laws He has sent (5:6), but mercy (22:107) and grace (2:150).7
The chapter will now consider the main schools of thought found in the interpretation
(tafāsı̄r) literature of these verses.
The chapter’s methodology in considering and presenting the interpretations has been to
use all the interpretations (tafāsı̄r) referred to in this footnote for each of the verses,8 but only
to quote from those interpretations (tafāsı̄r) that present a unique ‘added value’ to their peers,
one that adds to the discussion – especially given that much of the tafsı̄r literature is at times
repetitive.
Why create an island?

When the early Muslims had completed their Hajj, Q. 5:3 was revealed, indicating that God
completed His blessing and grace. This has been interpreted as the completion of the tenants
of Islam, both their ordinary commands (ʿazāʾim) and dispensations (rukhas․)9 – its laws.10
As such, the legal rulings (ah․kām) were seen as effectively one that brought a purification
(tazkiya) and ease (yusr) – in line with the narration that the ‘Religion (Dı̄n) of Allah is ease
(yusr)’11 and the narration ‘I was sent with the ․hanafiyya al-samh․a’, 12 one that is in accordance
with Q. 21:107 indicating that the essence of the message and its laws was one of mercy to
all humans – given that the phrase ‘to the worlds’ (li-lʿālamı̄n) refers in the verse to the word
mercy (rah ․ma).13
The Qurʾan often uses the term yabtalı̄ and yabtalı̄yakum to refer to a reason for creating
humankind. The two terms have often been presented within tafsı̄r literature as ‘He tests’
and ‘So that He may test you’. As the main schools of Islamic theology held that God has the
foreknowledge of what will occur, many interpreters understood these two terms to mean
that God creates a circumstance whereby it appears as if He is testing a group of people.14
Some interpreters have further said that in doing so it allows for God to establish proof for
or against the person (qiyām al-h․ujja) and that such allows for actions, which in becoming
realized, qualify for reward or punishment. In the view of some interpreters, being in a situ-
ation that appeared testing to the individual allowed the term to be used due to the apparent
similarity (mushābaha). Articulated in his tafsı̄r, al-Razi (d. 606/1209) comments that ‘the
nature of testing is an impossibility in respect to God. What we actually are left with is [the
act of ] taklı̄f (assigning duty)’15 – assigning duty (taklı̄f ) being the act of giving responsibility
to someone to act in a particular rightful way. The phrase ‘to test’ can be seen to have been
taken with this understanding, 16 whereby the test would determine if one ‘passes’ or does
not ‘pass’.17 It is of note that the phrase ‘to test’ appears throughout the tafsı̄r literature despite
its absence from the actual text of the Qurʾan.18
The second way of interpreting these two phrases, yabtalı̄ and yabtaliyakum, was given as:
‘[He] makes apparent’ and ‘[He] makes apparent to you’, in which difficult circumstances that
one goes through are to allow a person to witness for themselves their own nature so that they
may gain from such otherwise hidden knowledge. This interpretation rooted itself in the early
usage of the terms, whereby these terms are ‘borrowed (mustaʿāra) to make apparent something
that is hidden’, 19 and in commenting on Q. 6:165, to indicate that it refers to ‘the manifestation
48
of the measure of the intellect in their making use of God’s gifts. Since God already knows the
spiritual levels of people, the phrase balwā was used, as it (a person’s inner level) does not appear
to individuals except after it is acted out’. Indeed, the term al-balāʾ has been defined as coming
to the essence and purity of gold by melting it down to remove impurities, and the term ʾibtilāʾ,
also has been defined as istikhrāj mā ʿind al mubtalı̄ (making apparent what is within the person
undergoing the circumstance). Such knowledge of oneself has been tied, especially in the more
spiritually inclined tafāsı̄r such as Ibn ʿAjiba’s (d. 1224/1809) and al-Baydawi’s (d. 685/1286),
as a blessing (niʿma), as it allows a person to gauge themselves. Qushairi (d. 465/1073) com-
ments ‘what outwardly appears as a difficulty is in actuality a blessing (niʿma and minna) to the
discerning’. He also quotes the tradition that ‘If God loves His people, He puts them through
ʾibtilāʾ’.20 Indeed, the term itself formulated as balāʾ indicates a blessing (niʿma) since it is said
ablāhu Allah iblāʾan wa-balāʾan’ (when God blesses a person with something).21
Both interpretations do, however, come to the same conclusion that the outcome is for
the benefit of the person and not for God’s own benefit, as God is believed to be omnipotent,
without need, and prescient.
It may also be of note that nowhere in the Qurʾan is ibtilāʾ used to refer to legal rulings
(ah․kām). The term ibtilāʾ does not seem to appear in the recorded Sunnah in reference to
law or law making. Rather, the term is often used to refer to testing situations that happen to
humans, such as being afflicted with illness or hardship, or even in receiving good (21:35).22
This appears to point to an ontology of Islamic law, as one that does not intend to ‘test’ its
subjects, but facilitates ease and grace for them.
Although the boy came to this conclusion on ‘his being in the cosmos’, a number of ways
of expressing this have been documented in books on Islamic theology. To these the chapter
next turns.
The island in Muslim theological literature

While the boy in the story viewed his own nature as being the opposite to the Absolute’s,
along with his ability to recognize an element of Good and Bad as an indication of a ‘bless-
ing’, the chapter now turns to four schools of thought that emerged in early Muslim history
on the question of why God created humanity.
The four schools of thought that this chapter shall consider are the Ashʿari, Maturidi,
Athari and Muʿtazili. Each attempted its own reasoning (ijtihād) on the topic.
All of these schools held that God created humankind through His Will, and that God is
not in need of creation. They had different views on the question of what ‘motivated’ God to
create, or put differently, the ultimate reason for God creating (al-ʿilla al-ghāʾiyya).
The Ashʿaris believed that it was purely God’s Will, with no reason of any kind behind
it, although they held that there was a concordance between God’s Will, grace and wisdom,
as will be detailed further on in the chapter. They held that it was not theologically sound
to attribute a reason to any of God’s acts. The Maturidi and Athari schools believed it was
God’s Will and that He created the world out of wisdom and grace (tafad ․․dul).23 The Muʿtazila,
however, while believing it to be God’s Will and an expression of His Wisdom like the Ma-
turidis and Atharis, believed that such wisdom was not out of choice but rather that God was
compelled to act in this manner.24
Each school expressed its reasons for taking these views, and in taking these views, they
then had a premise from which to build a theory of the reason for law and law making. While
a detailed account of these reasons can be found in the literature, this chapter, by virtue of its
area, will focus on the legal element.
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Ahmed Izzidien
It is of note that the answer to the question on ‘the reason for God acting’ then went on
to inform how each school considered the notion of ibtilāʾ (to test/to make apparent). Given
the view of the Maturidis and Atharis, namely that God created due to wisdom and grace,
they then took the stance that humans were sent messages and rulings from God for their
own benefit. The Maturidis held that ibtilāʾ was in reality used as a metaphor for when some-
thing is made apparent and observable. Furthermore, they held that God did not command
creation in order to bring benefit to Himself, nor to repel harm from Himself; rather, He
commanded them for manāfiʿ (benefits) for humankind, and so that the consequences become
apparent to the person, not apparent to God.25
Whereas with the Ashʿari view, that God did not create based on a reason – messages
and rulings from God could not be said to be due to God wanting benefit for humankind.
Rather, humankind was in a position of taklı̄f (responsibility) for which they would be
rewarded or punished.26 However, Ashʿari scholars did accept a concordance between ben-
efit, wisdom and God’s rulings, as will be discussed further on. Muʿtazilis further viewed
taklı̄f as required in order for the believer to gain reward or punishment for carrying out acts
(imtih․ān).27
The chapter next considers the ontological authority of reason, being central to a discus-
sion on natural law and Islam.28
The good and the bad in living on the island

When the boy, using his axiom, began to discern between acts that he would wish on others
and acts he would not, and termed the former ‘Good’ and the latter ‘Bad’, he began to define
an ontology that has its parallels in Islamic theology.
The Muʿtazili, Maturidi and Athari schools all accepted that one could, to a degree, dis-
cern between good and bad without scripture. The degree to which one could discern was a
point of discussion between them. The technical terms used to describe qualifications were
․husn (pleasantness) and qubh․ (unpleasantness).
For the Muʿtazilis, Maturidis and Atharis, acts are either ․hasan (pleasant) or qabı̄h․ (unpleas-
ant) either in and of themselves, or due to an inseparable characteristic, or due to other con-
siderations. For the Muʿtazilis, textual revelation is solely to make clear those characteristics
of ․hasan (pleasant) and qabı̄h․ (unpleasant). This view was also taken up by the Karamiyya and
a number of Shiʿa and Yazidiyya. It is often attributed to Jahm b. Safwan (d. 128/746), who
opined that elements of knowledge (maʿārif ) can be known with the ʿaql (intellect) before
revealed texts appear (the Sharʿ), that the intellect is able to discern ‘good’ from ‘bad’, and
․husn (pleasantness) from qubh․ (unpleasantness) without revelation. The Ashʿaris, on the other
hand, took the position that nothing is inherently good or bad. God only makes things fall
into either category based on His Will and not because anything necessitates such alloca-
tion.29 They believed that the ʿaql (intellect) does not indicate the ․husn nor qubh․ of anything.
Thus, for example, to the Ashʿaris, being unfair is not inherently definable as bad or good but
only has the label of being ‘bad’ after God revealed that qualification to His Prophet. Legally,
they held that there was nothing that obliged humans to anything without revelation.
The Atharis and Maturidis took the position that human reason had an ability to discern
․husn (pleasantness) and qubh․ (unpleasantness), however, they also held that people cannot be
judged according to this distinction until revelation had its say on the matter.
This distinction has a bearing on law. Acts that are considered ․hasan (pleasant) or qabı̄h ․
(unpleasant) have the capacity of causing benefit (mas․lah․a) or harm (mafsada) respectively, upon
which legal determinations can be made. If one were to include in this legal determination
50
the view of the Atharis and Maturidis, that the reason for creation was ultimately for wis-
dom and humankind’s own benefit, one arrives at a perception of what law and law making
is – one that is distinct from the view that no such reason and no determination of benefit
(mas․lah․a) or harm (mafsada) are possible by humankind.
In the next section, the chapter considers the question of what indeed is required for law,
and how natural law concepts began to manifest in the Islamic legal tradition.
What makes for law on the island?

To the boy in the story, the axioms he arrived at appeared to go hand in hand with what was
revealed to him. This affirmation, of the non-conflict of reason and revelation, is a consistent
theme within legal and theological discourses in the Muslim tradition.
Principles seen in the Qurʾan (17:15; 53:39; 5:1; 2:188; 4:28, 58; 17:34; 2:283, 173) all posit
what appear as universal principles of justice without legally defining them.
As the Prophet migrated to Medinah, verses and hadith specific in their rulings appeared
in the context of situations, sometimes in response to Muhammad seeking guidance. Yet these
rulings often maintained, within the same texts, that their intention and objective were to
maintain the reasonableness, justice, and prosperity that stem from these universal principles.
As an example of a form of contextual ruling, the Prophet had asked the people of Medina
not to keep meat for more than three days after the Eid, but to donate what remained. The
Companions in later years asked the Prophet if such a ruling still stood, to which the Prophet
replied that the initial command was due to the presence of people in need at the time in
Medina, and that their absence meant that the Companions could now store meat for them-
selves after the Eid and beyond three days.30 With the change of context and public interest
came the change of the ruling, yet the universal principle of mas․lah․a (benefit/well-being)
remained. Companions of the Prophet such as ʿUmar, ʿUthman and ʿAli appeared to have
employed this methodology. They would at times avoid applying a textual ruling found in
the Qurʾan or Sunnah because the context had changed. Applying the literal meaning of the
text would, to them, have resulted in a loss in the objectives of the text. Numerous cases
have been cited from the time of the Companions that appear to indicate such an approach
was accepted and practised early on: Abu Bakr’s inclusion of the category of ‘grandfather’
instead of that of the ‘siblings’ in inheritance; the reclassification of some inheritance shares
by ʿUmar; the selling of lost camels by ʿUthman b. ʿAffan (whereby proceeds would go to
the treasury); ʿUthman allowing the Companion Tamdur al-Asadiyya to inherit from her
ex-husband – who had divorced her on his death bed; the guarantee that ʿAli b. Abi Talib
ordered craftsmen to abide by. These are all cited examples of practice that went against
source texts.31 To them, the change they enacted allowed the law to remain true to principles
of equity and justice, all such indicating that a qualification of these principles was possible.
Shihab al-Din al-Qarafi (d. 684/1285), a 13th-century jurist, took to differentiating between
what the Prophet said depending on context (maqāmāt al-khit․āb al-nabawı̄) – differentiating
between what the Prophet said as a human being, what he said as a leader, what he said as a judge,
and what he said as a Prophet – all such differentiations having legal implications.32
Indeed, a nature of Prophethood appears to indicate that legislation to what is just and
equitable is something that is to a degree innate. A hadith in this regard that may provide an
indication of a framing of law and how law is expected to be is reported in the Muwattaʾ of
Malik, which stating that the Prophet said that he ‘was only sent to complete good character’,
indicating that ‘good character’, in principle, was already present pre-revelation. This may
also be considered with the statement of the Qurʾan describing itself as a ‘reminder for the
51
Ahmed Izzidien
worlds’. Such positioning of Prophethood may begin to form an indication that the prophetic
mission was more corrective and descriptive than prescriptive.
It may be that given the fluid nature in which societies and contexts change and evolve,
the Prophet avoided recording all the Hadith sayings. This was different to the collection
of the Qurʾan, where verses were written down by companions on parchments at the time
of the Prophet, as well as being committed to memory and passed on in full form. Much of
the Hadith remained committed to memory.
The view that early law relied on reasoning that was anchored in a few principles that
were ‘natural’ and universal, such as the prohibition of oppression and injustice, appears
early in the historical record of law making. Arriving at rulings (ah․kām) based on scrip-
ture in the first and second centuries of Islam was not primarily a matter of textual inter-
pretation, but rather, of interrogating good judgement, local precedents, the practices of
prior Muslims, and a limited body of revealed injunctions in order to address specific legal
problems. 33
According to Khaled Abou El Fadl, justice and equity, as ultimate goals, tend to endow
the agent with a considerable amount of discretion.34 The acceptance of disagreement on
ah
․kām (rulings) has been attributed to the Prophet, which may imply that revelation also lent
itself to individual reasoning and discretion.
The use of pure logical reasoning developed thereafter to form a school of thought known
as that of reasoned opinion (ahl al-raʾi). The school also considered its method to be in line
with what was practised by the scholar Companions of the Prophet ʿAbdullah b. Maʿsud and
ʿUmar b. al-Khattab, among others. This form of reasoning also manifested itself in a specific
method for arriving at law, a method that became known as istih․sān ( juristic preference). It
was driven by reasonableness, fairness, common sense35 and mas․lah ․a (benefit), set as deriving
the most good and mitigating the most harm, both of which involved reasoning that did
not appear to be directly based on revealed texts.36 The school then evolved into the Hanafi
school for the most part, although it also found itself – albeit in smaller portion – within the
Maliki and Hanbali schools. It offered a methodology of understanding the texts. Especially
as the ahl al-raʾi were accepting of the Hadith.
In considering the Hanafi school specifically, one comes across istih․sān as a method for
reaching legal rulings. The mechanism appeared early in the Hanafi school. Indeed istih ․sān
appears to have originally represented independent human judgement of expediency or public
utility; and has come to be regarded by some as vestiges of the raʾi which survived in classical
theory. Wael Hallaq sees it as being employed as a method of equity, driven by reasonableness,
fairness and commonsense.37 Ibn Rushd defined istih․sān as being, in most cases, an attention to
human interest and justice, one in favour of considerations of equity and justice, or in favour of
a doctrine which might have been formally less systematic, but more practicable and appealing
to commonsense.38
Thus one arrives at what appears as a theory of law, fluid and flexible, based on a number of
universal principles. However, a second school, the School of the Texts (ahl al-athar), began to
develop another method, one based more on the Qurʾan and Sunnah in their fullest capacity –
one that also included the full record of memorized and written records of the Sunnah.
The ahl al-athar and an effect on the character of law

The ahl al-athar or as․hāb al-hadith, as they also were known, were proponents of entirely scrip-
tural authority in theology and law. Their focus was often on the literal meaning of the texts,
whereas the school of raʾi often focused on reasoning in order to arrive at a ruling that was in
52
line with the spirit of the principles of revelation. For example, the charity given just before
Eid, zakat al-fit․r, is described in the source texts as being of a number of categories, such as
dates and wheat. The ahl al-athar limited what could be given in charity on this occasion to
these categories, whereas the ahl al-raʾi school allowed for other categories including money
to be given in charity instead, seeing the reason behind such a ruling as one of provision to
those who are in need.
A second illustrative example of how the two schools approached a text can be seen in a
discourse on the juridical considerations of the hadith: ‘A judge must refrain from judging
when in a state of anger (ghad ․bān).’ The rationally inclined school notes that the reasoning
is clear from the text, namely distraction, thus they allow judges to perform their duties in a
state of anger so long as that anger is little enough so as not to be a distraction. Hence, they
manoeuvre the texts based on the principal reasoning as they see it.39
If one contrasts this with the textually based school, whereby the mind (ʿaql) is supposedly
solely to manoeuvre within the texts, they argue that the conclusion ‘little anger does not
qualify’ actually comes from the text itself, having used the form faʿlān, which implies ‘filled
with anger’. The reasoning for this epistemology was that if the premise is set in reverse,
whereby the intellect is given precedence over the text, then the Shariʿah, in their view,
would be utterly dismissible based on the decisions of a jurist’s reasoning. Thus they formu-
lated the position that ‘the text must lead the intellect’ (al-nas․․s yasbiq al-ʿaql).40
It has been suggested that, given the debate in the third/ninth century with ʿIsa b. Aban
(d. 221/836) and Abu al-Hasan al-Karkhi (d. 340/952) and his student Abu Bakr al-Jassas
(d. 370/981), a method to stem and constrain reasoning in mas․lah ․a (benefit) to tie it to the text
was needed by the ahl al-athar camp. This materialized in part with the rebuttals by al-Shafiʿi
(d. 204/820) that laid a foundation to constrain what fell outside of qiyās (textual analogy)
and ijmāʿ (consensus) – two methods used by the ahl al-athar to arrive at rulings (ah ․kām). This
foundation went on to give rise to maqās․id (textually based objectives of law).41 The ahl al-
athar and its followers began to formalize all aspects of law, setting up us․ūl al-fiqh (principles
of jurisprudence for arriving at legal rules) that essentially tied all legal thought and legal
derivation to the source texts.
Where no texts existed on a matter, and no analogy or use of consensus could be made,
the theory of maqās․id delineated an approach by this school of thought in order to arrive at
legal rulings. In Abu Hamid al-Ghazali’s (d. 505/111) deliberation on benefit (mas․lah․a), he
restricts it to ‘the upkeep of the intention (maqs․ūd) of the law-maker’.42 Further, in his delib-
eration on unrestricted benefit (al-mursala), he comments,
thus any mas․lah․a that does not ultimately protect an intention of the Qurʾan, Sunnah and
ijmāʿ, and is of the odd mas․ālih․ that are not consistent with the ways of the law, [then in
such a case, the mas․lah․a] is considered false and disqualified. Whereas any mas․lah․a that
ultimately protects a sharʿı̄ (textually based) intention, then [it becomes the case that]
this then affords us the knowledge that it is [indeed] an intention of the Book, Sunnah,
and ijmā‘ – and is [thus] not outside these us․ūl (principles). However, it is not termed ‘an
analogy’ rather a ‘mas․lah․a mursala’. Indeed if we interpret mas․lah․a to mean the protection
of the objective of the law-maker, then there is no reason for a disagreement in following
it, rather one must accept definitively that it is indeed a proof.43
Of note, however, is his careful choice of words in distinguishing benefit (mas․lah․a) as the
protection of the objectives of the sharʿ (textual sources) and not the acquisition of benefit and
mitigation of harm based on reasoning.
53
Ahmed Izzidien
In the development of maqās․id (textually based objectives of law) was an attempt to prior-
itize, and rank, rulings (ah․kām) from the vantage of the Shariʿah itself. Rulings were catego-
rized in a three-tier system where the maqs․ad al-d ․arūrı̄, or al-munāsib al-d
․arurı̄ (necessity) takes
precedent over the maqs․ad hājjı̄ (need) followed by the tah․sı̄nı̄ (luxuries).44
The theory on maqās․id was further developed by al-Shatibi (d. 790/1388). He elaborated a
mechanic within us․ūl (principles of jurisprudence) using the maqās․id frame of reference. On
the concept of the three-tier categorization mentioned earlier, al-Shatibi opined that these
were kulliyyāt (overall principles), and thus any juzʾiyyāt (subsidiaries) should be considered
in light of these. In particular, as the kulliyyāt are among the necessities, thus it cannot be the
case that a juzʾı̄ (subsidiary) goes against these. Should this appear to occur, then al-Shatibi
holds that there must be a way to reconcile between the two because a juzʾı̄ (subsidiary) does
not appear except with an inherent protection of these qawāʿid (axioms).45
The theory of maqās․id formally set that the objectives of Islamic law were to protect one
or more of the following: the intellect, religion, honour, wealth and lineage. Yet maqās․id in
this textualist formulation may be said to have come from a negative reading of the texts, in
that, to some jurists, such as al-Ghazali, sanctions given in the source texts against acts such
as murder and libel meant that the law’s objective was to protect life and honour.
This textual formulation, it has been argued, was, in part, a method employed to restrict
the open reasoning on the spirit of the law used by the ahl al-raʿı̄, which did not restrict in its
practical deliberations the spirit of the law to a set.
As the chapter next shall consider, the ahl al-athar were to have a profound and marked
effect on the portrayal of the school of the ahl al-raʾi.
Influence of the ahl al-athar on the late raʾi school

As it came to pass, the more pronounced the authority of the ahl al-athar became, the less
freedom jurists had in expounding discretionary opinion. It was framed by the ahl al-athar as
being antithetical to the notion of Prophetic authority, and raʾi inevitably acquired negative
connotations. The textually based approach started to leave less room for human discretion,
since its very existence appeared to demand that a choice be made between human and
Prophetic authority. Despite the appeal to rationale, raʾi during the first century after the
Prophet’s death was increasingly challenged by traditionalism, represented in the prolifera-
tion and gradual acceptance of a notion of Prophetic Sunnah expressed in the narrative of the
hadith. Between the end of the second/eighth century and roughly the middle of the third/
ninth century, this traditionalism was to gain the upper hand, to be tempered in turn by the
acceptance of a restrained form of rationalism.46
It may be argued that the spread of the athar school was so influential that later Hanafi texts
began to claim that the Hanafis of the early period actually ascribed to the now commonly
held position of orthodoxy, namely of placing the sources before one’s own reasoning on
rulings. Some also claimed that the methodology of Abu Hanifa (d. 150/767) was misunder-
stood and largely based on a number of misunderstood definitions.47
Many still take the view that the difference between the two schools was at heart very
minor and that the Hanafi school only took the approach it did due to the lack of source
material, the prevalence of fabricators in its geographical proximity, and the new societies
they met.
The ahl al-athar, in their derivation of rulings from the revealed sources of the Qurʾan and
Sunnah, relied heavily on analogy. Thus they allowed rulings for certain cases to be extended
to new similar cases that had no precedent in the Qurʾan and Sunnah.48 This being the case,
54
istih․sān ( juristic preference) was re-characterized as being the method by which a source text
from which an analogy can be drawn exists, yet is dismissed for another analogy based on
another source text. Thus the process was presented as a form of qiyās (analogy), 49 one in line
with the ahl al-athar school of thought.
Along these lines, al-Jassas (d. 370/980) mentions that istih․sān materializes in two situa-
tions, the first being a case that is drawn to two different principles (yatajādhabuhu as․lān), with
one of the principles being more worthy of the case than the other. As such, it is preferred
(yustah ․san) to draw the analogy from the less worthy principle rather than the more worthy
principle. Thus he defines it as leaving qiyās (analogy) for a qiyās that is more fitting.50 The
second situation is where a ruling is not implemented because the case is to be considered one
that is specific to that context and thus draws uniqueness (takhs․ı̄s․), even if the ʿilla (cause) for
the ruling still persists. Al-Amidi (d. 631/1233) also joins the ranks of those late jurists who
consider istih ․sān as little more than a form of qiyās.51
Indeed, the proliferation of this definition has led John Makdisi to the view that both early
and late jurists understood it the same way, namely as a determination of a solution based on
either a direct provision in the Qurʾan, Sunnah or consensus, or reasoning by analogy from
one of these two sources. However, this preference, according to Makdisi, is determined by
the Qurʾan and Sunnah and not by appeal to conscience for which he gives examples using
Bazdawi (d. 482/1086) and Sarakhsi (d. 483/1087).52
Thus, the ahl al-raʾi, in their most characteristic method for arriving at laws, are presented
by later jurists as enacting the same principles as the ahl al-athar.
Was the later characterization of the ahl al-raʾi accurate?

The chapter turns to the question of why there was such vehement opposition to ahl al-raʾi
and its formulations (such as istih․sān), if indeed it was a school that used a similar methodology
to the ahl al-athar.
When considering the early polemics on this topic, it can be seen that there is a great
amount of opposition to the method of istih․sān, to the general method employed by Abu
Hanifa, and the school’s modus operandi. Indeed, the school of raʾi had become the target of
vociferous attacks by scholars ascribed to the ahl al-athar. The scholars of raʾi were often met
with skepticism by the majority of jurists as represented by the ahl al-athar.53 This was, in
part, due to the method being devoid of direct textual reference from the viewpoint of the
athari school.54
The main reason given in the historical record for the opposition of the ahl al-raʾi by the
ahl al-athar is that they were accused of placing ‘opinion’ before source texts. In considering
the level of the attacks made on the early Hanafi school, one finds, for example, al-Qadi
ʿIyad (d. 544/1149) in his Tartib al-Madarik stating that ‘Abu Hanifa would put analogy and
opinion (iʿtibār) before the sunan and athar, and [in doing so] has forfeited the principle texts,
and taken to reason (ʿuqūl), choosing raʾi, analogy and istih ․sān ( juristic preference). Thereaf-
ter, he placed istih․sān before analogy and [in doing so] has gone far [from what is proper].’55
To substantiate the claim that Abu Hanifa forgoes the Sunnah, a whole chapter (kitāb) listing
these occurrences is made by Ibn Abi Shayba (d. 233/849). In addition, Abu Hanifa was also
attributed with believing in the tah․sı̄n of the ʿaql (declaring something pleasant by virtue of
the intellect alone).56
The more literalist jurists, Ibn Dawud (d. 297/910) and the Zahiris, also rejected is-
tih․sān.57 They thought it rendered licit what God declared forbidden. Istih․sān was also
generally rejected by the Shafiʿis. Al-Shafiʿi wrote a book Ibtal al-istihsan (Annulling Juristic
55
Ahmed Izzidien
Preference) and is the author of the quote ‘man isth․sana fa-qad sharraʿ (he who adopts istih․sān
has legislated)’, equating it with heretical usurpation of God’s role as the sole determiner
of the law.58
This opposition by al-Shafiʿi poses a question. Had istih․sān been a simple matter of qiyās
(analogy), why was there a heavy backlash against it? Indeed, some of the ahl al-athar even
claimed that later jurists deliberately reformed the original definition of istih ․sān to something
more in line with the atharı̄ school of thought. Abu Is-haq al-Shirazi (d. 476/1083) launches his
polemic by stating that istih․sān is falsehood because it is leaving qiyās for that which a human
prefers based on their own opinion without evidence. He then claims that later members of
the school of Abu Hanifa differed among themselves, each defining it differently. However, he
concludes by mentioning al-Shafiʿi and Bishr al-Marisi (d. 219/833) as having judged it as de-
parting from qiyās by way of human preference without any evidence. Al-Shirazi then makes
the claim that such was their actual school of thought.59
Makdisi, as mentioned previously, stated that al-Amidi supported a view that istih ․sān was
never more than a form of qiyās.60 Yet in returning to the source text for this translation, al-
Amidi lists istih․sān as retracting a ruling due to the presence of a source text, consensus, or
other means. Al-Amidi does not mention what the term ‘other’ refers to.
Had istih․sān been as straightforward as qiyās, as has been claimed, the question may be
asked, why did the early raʾi school avoid a straightforward definition? Indeed, recorded defi-
nitions of istih․sān given previously (p. 52 onwards) seem to indicate a departure from the qiyās
it has been attributed to. Also of note are the opinions expressed by al-Hattab (d. 954/1547)
of the Maliki school who indeed mentions that the best definition that has been given of
istihsan is that it is ‘an evidence that comes to the mind of the mujtahid and finds itself well
received but difficult to express’. He quotes Ibn al-Hajib (d. 646/1249) as saying that this
definition is what is maʿmul (officially sanctioned) itifaqan (by agreement).
Even the claim that few sources existed at the time and location of the early school has
been countered by the fact that Iraq was one of the regions most populated with Companions
of the Prophet. Most of the Companions had lived in or visited Kufa and Basra. Kufa had
no fewer than seven of the leading scholar Companions.61 Furthermore, it is recorded that
within the geography of the ahl al-athar, such as Medina, there emerged some of the leading
scholars who used raʾi such as Rabiʿa (d. 136/754) and Malik (d. 179/795).
Yet with raʾi being seen as an expression of rationalist and utilitarian tendencies, it was
wholly expunged by those opposed to this form of reasoning, and hence, al-Shafiʿi’s over-
whelming opposition to istih․sān.62
Taqbı̄h. and tah.sı̄n in law – its relation to natural law

It may be suggested that irrespective of whether istih ․sān ( juristic preference) is simply a qi-
yās (analogy) or otherwise, it still does not appear to answer the question, how does a jurist
decide that one qiyās is more appropriate than another without actually reasoning on the
outcome? What is it that makes a jurist sway away from one qiyās to another? If it were the
text that made the jurist sway, then arguably the jurist would not have enacted the first qiyās.
Furthermore, istih․sān in its later formulation is said to be enacted after the outcome of the
first qiyās seems out of place, wrong, or incongruent to the jurist. How would this be possible
without a degree of qualification of the outcome, a degree of tah ․sı̄n and taqbı̄h․ (considering
an element pleasant or unpleasant), in the mind of the jurist?
It appears, whether directly or indirectly, that a jurist here is enacting a tah․sı̄n and taqbı̄h․ on
the outcome of the ․hukm (ruling) before deciding to seek an alternative qiyās. It also assumes
56
the jurist is able to qualitatively and quantitatively characterize what is expected of revelation
on minor rulings.
The best answer to give to this question may be to say that jurist is seeking the objectives
of Islamic law (maqās․id). The problem with this answer is that according to the promoters
of the ahl al-athar, including al-Ghazali, the maqās․id are not to be used to negate or dismiss
a text; the maqās․id are only to be used when no source text exists at all. If one were not to
allow a text to be used because of the jurist’s view of maqās․id, then he/she would be enact-
ing a methodological error by qualifying the outcome of a text in light of the maqās․id, and
thereby dismissing the text or enacting it. It is no surprise that al-Shafiʿi saw in istih․sān a form
of legislating without the source texts – a form of natural law.
Furthermore, maqās․id, in the ahl al-athar school, are not to be used to establish the manāt․
(applicability) of a text. The school rather takes the position that it is the role of the text to
establish the maqās․id and not the reverse. Thus, in allowing a jurist to consider the outcome,
they are inherently suggesting that, like the ahl al-raʾi did, there is a spirit of law that super-
sedes and overrides the source texts.
It may be of note that this observation applies to the later definition of istih ․sān, one that
reframes it only as a form of analogy (qiyās). The earlier definition of istih․sān was even more
audacious whereby a text is not enacted due to a subjective assessment of the jurist that seeks
an outcome that is more reasonable than is suggested by a literal framing of a text. Perhaps
this is why the early ahl al-athar exhibited such opposition to the concept at hand.
Such an opposition also appears to be in line with the accusations made of Abu Hanifa as
having leanings towards tah ․sı̄n (declaring something pleasant).63 Indeed, a narration attributed
to him, ‘Ignorance is not an excuse for not believing in God due to what the person sees in
the creation of the heavens and earth, and in the creation of themselves’, appears to be in line
with part of the Muʿtazali view that did not require the presence of a prophet for responsibil-
ity. Although, late Hanafis tried in a number of ways to re-interpret this away from that con-
sequence. The effects of this alleged form of tah ․sı̄n (declaring something pleasant) may also be
said to be present in his taʿlı̄l (reasoning) in a number of acts of worship – acts normally con-
sidered by even the Malikis who practised maqās․id extensively – to be out of the scope of taʿlı̄l
by virtue of them (the acts of worship) being taʿabbudı̄ (simple commands to be carried out
without rationalization). Abu Hanifa also undertook taʿlı̄l in the masāʾil (issues) of zakat and
expiations, setting them in terms of ‘value’ instead of ‘specific types mentioned in the texts’.64
It appears that the early form of istih․sān lent itself to a form of natural law, whereby the
jurist sought that which brings about equity and justice despite what some of the source
texts said on the matter. This form of law making appeared anchored in principles of justice,
compassion and equity, principles that the Qurʾan also appears to see as innate to humankind.
However, as Bernard Weiss posits, from an historical vantage point, istih․sān was eventually
assimilated into the textual sources and was thereby deprived of its independent status. In
fact, reason, custom, equity or public interest became concepts fettered and limited by the
juristic method.65 Accordingly, istih․sān was eventually considered to belong to the category
of tarjı̄h․ (the acceptance of one of two conflicting rules as ‘weightier’ than the other).66
The Muʿtazili school had its own effects on fiqh and us․ūl – given their acceptance of an
objective and discernible ‘good’ and ‘bad’ within nature. This was seen to permeate their dis-
cussions of law, for example, in the definitions of the five categories of responsibility (oblig-
atory, recommended, indifferent, disapproved and forbidden), the definition of obligatory
(wājib) included the term ʿaqlan (by virtue of the intellect), 67 where the Ashʿaris only used the
term sharʿan (by virtue of the texts).68 The distinctions found their way into practical consid-
erations, for example, the difference of opinion between these schools on ‘God commanding
57
Ahmed Izzidien
that which cannot be humanly carried out’ (taklı̄f mā lā yut․āk) had a direct implication on the
question of the ‘actions of one who is compelled by force to act against their will’ (taklı̄f al-
mukrah), such as one being forced to inflict pain on others by a third party at pain of death or
serious injury.69 Another example is that of the ‘status of a person to whom revelation has not
reached’. The Maturidis held they are responsible (mukallaf ) for believing in God (ı̄mān) and
not attributing to God what is repulsive. Whereas the Ashʿaris held that no such responsibil-
ity exists whatsoever. The Muʿtazilis differed by stating that they are responsible (mukallaf )
for believing in God and responsible for every act that the mind can independently reach.70
Thus, in their formulation, they held that acts could be accounted for without recourse to
revelation, an articulation of a form of natural law in their deliberations.
Does the logic of law making require a fixed methodology in order to work?
Considering the nature of how the two different schools of ahl al-raʾi and ahl al-athar ap-
proached law and law making, the question could be asked, is it humanly possible, within the
cognitive mapping of the human mind, to suspend one’s evaluative judgement on fairness,
purpose and reason behind law, given that many cognitive studies have determined that the
perception of fairness and teleological reasoning appear in humans from an early age to be
applied in their environment?71
In theorizing on law, it may be possible to draw dogmatic or ideological stances that may
not necessarily meet these requirements. Although, when these said stances come to interact
with the real world, changes are bound to face them. Law would either have to adapt or it
may, in this regard, not be applicable. In this regard several opinions within the four Madhabs
arrived at notably similar conclusions to that of the ahl al-raʾi.
Theological investments, legal quagmires and human nature

The ahl al-athar school realized that not all law could be based on the few occurrences found
in the source texts, the Qurʾan and Sunnah. Therefore, they needed to devise methods by
which rules could be drawn but only from the sources.
While these jurists, and indeed later jurists, had the theological point of order that the
mind cannot undertake tah․sı̄n or taqbı̄h․ (to declare something pleasant or unpleasant), that
‘good’ and ‘bad’ do not inherently exist, and that God created humanity as a result of a
command – one with no specific reason behind it, one may ask the question, how were new
laws going to be tied in to the original laws?
While the Ashʿaris believed that it was false to say that ‘the reason ah ․kām (rulings) were
legislated by God was to benefit humankind’, they noticed that there was, in general, an iqti-
rān (concordance) between the ah․kām and mas․ālih
․ (benefits) that they brought to humankind.
This concordance was one that came out of the experience of ah ․kām but not one necessitated
by the intellect. To the Ashʿaris, the intellect had no say as to whether such mas․ālih ․ were
compulsory, or even allowed.72 Thus they afforded a form of taʿlı̄l (reasoning) for rulings by
expressing that such benefits were ‘what was customarily expected of rules’ ( jāʾat bihı̄ al-ʿāda).
Yet, they held that it was not the case that one necessitated the other. With this they then
came to view that the rulings were in accordance with benefits to humankind, and that this
concordance was a grace from God.73 Although, they maintained that ‘grace’ was not ‘the
reason’ for God ordaining rulings.
Thus, even though they opposed the principle of taʿlı̄l, they found that it was needed for
law to function, and for legislating new laws for new contexts. The Maturidis, Atharis, and
58
Muʿtazilis did not face this issue due to their theology, which had the position that reasons (ʿilal)
were inherent in rules (ah ․kām) and their locus was inevitably benefit (mas․ālih ․) to humankind.
Further, in the determination made by the schools of jurisprudence that emanated from
the ahl al-athar school, the place of mas․lah․a was also found to be in need of an avenue of
expression even when the sources were available, though they had initially held that such
mas․lah․a cannot be considered when source texts are available. This circumstance is probably
best witnessed when they faced the question ‘what course of action is to be taken when a
benefit goes against the source texts?’
They categorized the source texts (nus․ūs․) to be of two types: specific (khās․․s), such as the pro-
hibition of asking for a woman’s hand in marriage after she has become engaged; and general
(ʿāmm), such as the rule not allowing the sale of an unspecified item. Furthermore, they looked
at these texts as having one of two characters: one that is definitive (qatʿı̄) in its meaning and its
authenticity, and one of doubtfulness (z ․annı̄) in either its meaning or authenticity.
If a benefit (mas․lah․a) were to contradict a non-definitive text (nas․․s), be it in meaning or au-
thenticity, then according to the Shafiʿis (those who were most opposed to raʾi), if application
of the nas․․s causes a temporary harm (d․arar ʿārid․), then the benefit is permitted out of necessity,
and the lesser of two evils. While in the Hanbali school, the as․․hāb of Ahmad b. Hanbal held
that benefit could act to specify (tukhas․․sis․) a text (nas․․s) if there is a contradiction between the
benefit and the text. That is, the benefit becomes a special case not covered by the text, i.e.
an exception. This also is the case for the Maliki and Hanafi schools.
In terms of scope, the Maliki school held that all general texts (nus․ūs․) of the Qurʾan and
Sunnah are considered as not being definitive in meaning.74 Examples where this has been
applied are in not requiring a person to undertake taklif / a qasam (to take an oath) when
there is an unsubstantiated counter claim to their property. Furthermore, within the school,
certain ongoing customs (al-ʿurf al-ʿamalı̄) can act to specify a general text as well as restrict a
general source text (nas․․s).75
The later Hanafi school also allowed such exceptions to the Qurʾan and Sunnah due to
benefit (mas․lah ․a),76 such as bearing testimony based on ‘hearing’ in certain cases.77 Another
example is of the sale of seasonal produce ahead of its fruition where the crop is one that gives
an indication of an expected produce, despite source texts prohibiting gharar (ambiguity in
contractual obligations) and the sale of what one does not have.
The Malikis used a term known as qiyās khafı̄ (subtle analogy) in those situations in which
normal application of analogy (qiyās) appeared to produce an improper outcome. They used
this in order to put forward a mas․lah․a juzʾiyya (partial interest).78
Where a ‘custom’ goes against the text, the later Hanafis have specified allowances
whereby what is customarily known in a society is considered instead of the text on the issue.
An example they use is that of the conditions of a contract (shurūt․), such as the ‘sale of keeping
promise (alwafāʾ) as it was a customarily known, type of contract despite it being an inadmissi-
ble condition (shart․ fāsid).79 Such also applied to similar cases involving forms of interest (ribā)
in certain food stuffs.80
In time, according to Mustafa al-Zarqa, analogy (qiyās) itself began suffering from an ex-
cess of use, leading the Malikis towards relying on other forms of deduction.81
Thus it appears that in setting formalized structures that did not quite fit the nature of the
original character of law and law making of the early period, the ahl al-athar schools resorted
to exceptions and further qualifications to try to release themselves from the quagmire that
they had set up. It appears that while the ahl al-athar set out with a number of ideological and
theological commitments, they found that eventually they required fine tuning in order to
arrive at a more workable outcome. One that was in all possibility attainable with raʾi.
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Ahmed Izzidien
Ahl al-raʾi and a means to natural law

The early formulations of the school of raʾi, as previously described, granted a degree of onto-
logical authority to reason by virtue of the reasoning process required of the mind in order to
come to law that is just, equitable, and fair. Furthermore, as the principles of justice, equity,
and fairness were recognized by the Qurʾan, giving the impression that these are expectedly
innate, it may be argued that this ontological authority is much more comprehensive than has
been granted to Islamic legal theory. It may be stated that with both the principles and contex-
tual rulings that came to afford and promote justice and fairness, the expectancy that human
reasoning is a must within the raʾi-based school may be seen as, at times, a form of natural law
that places innate principles as central, with law making around them as fluid. Any legal rulings
of the text can thus be seen as, at times, contextual demonstrations of these principles that must
be continually reconsidered in light of them, but not despite them.
It appears thus that the raʾi view of law and law making allows for a more dynamic and less
dogmatically restricted characterization of the legal process and law making. Furthermore,
it also appears to promote a view of law that allows for the preservation of arguable universal
principles common to all humankind – principles that cannot be overridden for political or
ideological expediency.
The polity and humankind on the island

The discussion in Islamic literature on how government might serve justice is remarkably
similar to 17th-century Western discourses on the state of nature or the original condition
of human beings. One view – advanced by Ibn Khaldun (d. 808/1406) and Abu Hamid al-
Ghazali (d. 505/1111) – argued that human beings are by nature fractious, contentious and
not inclined towards cooperation. So, government is necessary to force people to cooperate
with each other, contrary to their nature, and to promote justice and the general interest.82
Ibn Khaldun held that humans are both social beings as well as political by nature, and
that humans are leaders by nature due to the istikhlāf (vicegerency) they were created for.
Further, he held that the reality of kingship (mulk) is a communal necessity for humanity, and
it entails dominance (taghallub) and force (qahr), which are the effects of anger and animalistic
tendencies. Furthermore, given this state of being, a society, to Ibn Khaldun, needs a deter-
rent as well as a ruler who can judge between the various competing claims that rise due to
the multiplicity of interests among the inhabitants of society, without which there would be
chaos and the extinction of humankind. He finds credibility for this by stating that protec-
tion of humans is one of the necessities of the objectives of Islamic law.83 That being said,
he has also been attributed with the stance that if people could live by God’s law, then there
would be no need for a leader, a view also expressed by the Muʿtazilis.84
Al-Ghazali held the opinion that politics in itself does not hold the ability to undertake its
stated objective except through a process of education and purification of the self. Further-
more, the direction of a human in society and society as a whole towards goodness as well
as the provision of security cannot be organized except with a sult․ān mut․āʿ (an authority that
is obeyed). He draws readers to his observation of what trials and tribulations occur at the
time of the death of a sultan – a situation that if left unchecked, leads to chaos, bloodshed and
poverty. He builds his theory stating that
this life has been created as a means to the next, and thus had it been one where justice
ran throughout [i.e. was the status quo], then no discord would occur, and the tasks of
60
the jurists would cease. However, it is one where desires run throughout, and thus dis-
cord was born and as such there was dire need for a sultan to manage their affairs, and
the sultan was in need of a canon by which he could manage them with.85
Competing with the above theories are al-Mawardi (d. 450/1058) and Ibn Abi al-Rabiʿ
(d. 688/1289) who argued that God created human beings weak and in need so that they would
cooperate due to necessity. Cooperation would limit injustice by restraining the strong and
safeguarding the rights of the weak. Furthermore, they believed that God created human be-
ings different from one another so that they would need each other to achieve their aims. In this
school of thought, human beings by nature desire justice and will tend to cooperate in order to
achieve it. Even if human beings exploit the divine gift of intellect and the guidance of the law
of God, through cooperation, they are bound to reach a greater level of justice and moral ful-
filment, and the ruler ascends to power through a contract with the people, pursuant to which
he undertakes to further the cooperation of the people with the ultimate goal of achieving a
just society.86 However, al-Mawardi puts forward the theory that the ruler enjoys considerable
discretion over ostensible legal issues that qualified jurists have come to by virtue of duties
to uphold and carry out the law, ensure continued existence of the Muslim community, and
preserve the sanctity of the public sphere.87 The Muʿtazili qadi ʿAbd al-Jabbar (d. 415/1025)
held that a leader’s role was twofold, the first part relating to religion, the other to the matters
of ‘worldly affairs’ (dunyā), whereby the leader must bring benefit and mitigate harm in both.
On the human element of society, Islamic schools of thought held that the human ‘self ’
(nafs) has the capacity for three spiritual levels: the nafs al-ammāra bi-l-sūʾ (the self that invites to
bad), the nafs al-lawwāma (the self that is constantly blaming and disciplining itself ), and the nafs
al-mut․maʾinna (the self that is tranquil). Each of these is attainable, and thus, human action can
lean to good or bad or both, depending on the person’s spiritual state. With such a framing, the
necessity of law may have been seen, in part, contingent on how many in society had achieved
which levels. Many theories on policy began to be developed by al-Farabi (d. 339/950), Ibn
Sina (d. 427/1037) and Ibn Taymiyya (d.728/1328), yet they remained largely theoretical.
In one case, al-Shatibi’s theories have influenced contemporary Muslim democrats, in
a manner that shifts policy from one of dogma and ideology, to one that advocates for the
achievement of the maqās․id. They use the theories of law to be able ‘to serve the interests of hu-
mankind’ to include the protection of life, religion, progeny, wealth and the intellect.88 How-
ever, many have taken a step further and widened the scope of maqās․id to include ‘freedom’ and
‘environmental protection’ among others. Yet some have criticized this approach of not being
true to the textually based locus used by al-Shatibi. However, defenders of the approach see the
theory of maqās․id as facilitating a widening in the scope of Islam beyond texts, to allow for its
own development in a manner that is also of benefit to people – whether it is mentioned by the
Shariʿah or not.89 Indeed, the maqās․id methodology, according to Andrew March, has allowed
for a practicality in relation to concrete circumstances in which Muslims live, yet claim for this
practicality on a traditional foundation.90 In such constructs, terms do not matter as much as
the content and the outcome (maʾāl). A non-Muslim country that is just is more favourable than
an unjust Muslim country. God upholds a just non-Muslim country but not an unjust Muslim
country.91 As such, the view taken on governance is that it ought to be based on the establish-
ment of benefit and the mitigation of harm.92
Indeed, al-Shatibi has been seen to offer a more realistic philosophy of religion and law by
some secular writers. This can be seen, for example, in the work of Aziz al-Azmeh who com-
mends elements of the philosophy in such terms and in particular al-Shatibi’s deliberation
and use of mas․lah․a (benefit) in his discourse.93 This formulation has, for al-Misiri, allowed
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Ahmed Izzidien
for a relative depolarizing whereby focus is shifted to the outcome of laws that have universal
appeal.94 It has been suggested, however, that post-Westphalian models of state do not hold a
compatibility with the premises of Islamic forms of governance.95
Although Muslim jurists debated political systems, the Qurʾan itself did not specify a
particular form of government. However, it did identify a set of social and political values
that are central to a Muslim polity. Three values are of particular importance: pursuing
justice through social cooperation and mutual assistance (49:13; 11:119); establishing a non-
autocratic, consultative method of governance; and institutionalizing mercy and compassion
in social interactions (6:12, 54; 21:107; 27:77; 29:51; 45.20).96
Yet while the Qurʾan, when speaking on political matters such as shūra (consultation), holds
the process in high esteem, jurists, arguably, as a result of their contexts, began to consider exis-
tential questions – those that were tied to the inevitable direction of the Muslim p opulous – in
very legal terms instead of philosophical. With shūra, there was an emergence of two ‘valid’
legal arguments, one determining it to be legally binding, the other not.97 Given that power, at
the time, was vested in a leader to choose any legal view considered valid, rarely did it become
binding. Thus shūra neither played a central role in pre-modern Muslim reasoning on the Is-
lamic state nor was ever institutionalized prior to the 19th century.98
Had the approach to this been one that considered it in philosophical terms, based in rea-
son, instead of fully textual in nature, that the prosperity of a community was contingent on
shūrā, a position that is largely accepted today as a pre-condition for natural progress, stability
and seamless transfer of power, the question of whether shūrā was binding or not need not
have been answered given the existential repercussions of the omission of shūrā in the world.
Therefore, it may be suggested that such omission was a factor in the approach to governance
given at al-Ghazali’s time, whereby he saw the necessity, as alluded to earlier, of a sult․ān
mut․āʿ (an authority that is obeyed) to avoid bloodshed. Indeed, al-Mawardi, under certain
conditions, recognized the legitimacy of usurpation as a means of coming to power in the
provinces of Muslim lands. It is arguable that this thought began to institutionalize the idea
that an unjust ruler was better than conflict. It may be suggested that the net effect this had
over the centuries was to limit the possibility of civic change and institutionalize injustice,
with tacit approval from many jurists.
These competing views on a divine command ethic largely remain until today. They
present elements of Islamic jurisprudence – with which Islamic ethics are constructed – that
are seemingly unresolved. This is in part due to the first principles upon which competing
views have built their hermeneutics to approach the texts.
The epistemology that initially guided the development of the early raʾi jurisprudence pro-
cess, a process that by its nature was welcoming of reason and new forms of knowledge and
discovery, is now considered by some as largely lost, with one of the poignant consequences
being the spread of trenchant authoritarianism in contemporary legal determinations.99 It has
been found that authority lends itself to a form of legal formalism, one where the law appears
to the person holding this schema as complete and univocal.100 Not surprisingly, it has also
been found that those holding such attitudes, whereby law is seen as unchanging, exaggerate
the role of the text and minimize the role of the human agent who interprets it.101 Nowhere
can this be seen better than in the tensions today between two schools of thought. The first
wishes to see the development of fiqh and reinstate an epistemology of reasoning in it, using
the progress that the social sciences and natural sciences offer, the development of governance
that best meets the aspirations and innate nature of humanity, and the continued development
of international law that stemmed in part from natural law102 as a project that continues to hold
prospects for collaborative progress around shared ground and shared principles. The second
62
school continues to entrench a status quo of unreasonableness in Islamic law, dogma and au-
thoritarianism in both religion and governance, all the while relying on political precedent
and the legal traditions of past centuries to do so.
While scholars, state actors, students and institutions continue to work within the field,
with some attempting to adhere to authoritarian ideology and others taking more reasoned
approaches, much of the discourse appears limited by a lack of consideration of first princi-
ples, and their thorough development. Herein lies opportunity for new ideas.
Notes
1 Jalal al-Din al-Suyuti, Al-Ashbah wa-l-Nadhaʾir, vol. 1 (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990),
7, 50, 76, 90; Muhammad Hashim Kamali, ‘Legal Maxims and Other Genres of Literature in
Islamic Jurisprudence’, Arab Law Quarterly 20(1) (2006): 77–101.
2 Muhammad ibn Ismaʿil al-Bukhari, Sahih al-Bukhari (Darussalam, 2000), 4.
3 A. Kevin Reinhart, ‘Origins of Islamic Ethics: Foundations and Constructions’, in The Blackwell Com-
panion to Religious Ethics, ed. William Schweiker (Oxford: Blackwell Publishing Ltd, 2005), 244–53.
4 Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press,
2005), 24.
5 Judging by the number of manuscripts, the story had wide readership, finding its way in trans-
lation to Hebrew in the 13th and 15th centuries, Latin in the 15th century, English in the 15th
and 17th centuries, Dutch in the 17th century and German in the 18th. It was thanks to its Latin
translation and publication in Oxford in 1671 by the English Orientalist Edward Pococke that
the story ‘The Younger’ entered into Western thought – most famously through Defoe’s Robinson
Crusoe. See Gerhard Böwering, Patricia Crone and Mahan Mirza, The Princeton Encyclopedia of
Islamic Political Thought (Princeton, NJ: Princeton University Press, 2013), 241.
6 These verses either directly, or indirectly, refer to an ʿilla (reason) for God’s creation of human-
kind and the circumstances in which they find themselves in life.
7 The formulation comes from my own determination. It finds its parallels and precedent in early
schools of thought such as the Maturidi and Athari schools in addition to that expressed by classi-
cal maqāsidian determinations as found in al-Alusi, al-Tabari, al-Razi, al-Qurtubi and Ibn ʿAshur.
8 Al-Tabari, al-Zamakhshari, al-Razi, al-Qurtubi, Ibn Kathir, Ibn ʿAtiyya, Abu Hayyan, Al-Biqaʿi,
Abu al-Suʿud, al-Alusi, Ibn ʿAshur, al-Shinqiti. The collection includes the Athari, Muʿtazili,
Ashʿari and Maturidi schools of theology.
9 Abu al-Qasim al-Zamakhshari, Tafsir al-Kashshaf (Beirut: Dar al-Kutub al-ʿIlmiyya, 1998), v.
(2:150).
10 Tahir b. ʿAshur, Tafsir al-Tahrir wa-l-Tanwir (Tunisia: Al-Dar al-Tunisiyya li-l-Nashr, 1984), v.
(2:150). Abu ʿAbdullah al-Qurtubi, Al-Jamʿi li-Ahkam al-Qurʾan (Dar al-Kitab al-ʿArabi, 2004), v.
(2:150).
11 Muhammad Ismaʿil al-Bukhari, Sahih al-Bukhari, 9.
12 Ahmad b. Hanbal, Musnad al-Imam Ahmed (Dar al-Hikma li-l-Tibaʿa wa-l-Nashr, 1988), pt
(21788).
13 Ibn ʿAshur gives theological credence to this by referring to the Maturidis and Hanbalis.
14 Abu al-Suʿud al-Amadi, Tafsir Abi al-Suʿud (Riyadh: Maktabat al-Riyadh al-Haditha, 1971), v.
(6:165). Mahmud al-Alusi, Tafsir al-Alusi (Dar al-Fikr al-Islami al-Hadith, 2000), v. (40:26). Mu-
hammad al-Biqaʿi, Tafsir al-Biqaʿi (Dar Ihyaʾ al-Turath al-ʿArabi, 2001), v. (30:24).
15 Muhammad al-Razi, Tafsir al-Razi (Dar al-Fikr, n.d.), v. (6:165).
16 Abu ʿAbdallah al-Qurtubi, Al-Jamiʿ li-Ahkam al-Qurʾan, v. (40:26).
17 Ahmad al-Tabari, Tafsir al-Tabari (Darussalam, 2007), v. (6:165).
18 Ibid., v. (6:168).
19 Tahir b. ʿAshur, Tafsir al-Tahrir wa-l-Tanwir, v. (6:165).
20 Ahmad al-Haytami, Al-Zawajir, vol. 1 (Beirut: Dar al-Maʿrifa, n.d.).
21 Abu ʿAbdullah al-Qurtubi, Al-Jamiʿ li-Ahkam al-Qurʾan, v. (37:106).
22 Al-Haytami, Al-Zawajir, vol. 1, 2398.
23 Ahmad al-Tayib, Mawsuʿat al-Mafahim al-Islamiyya al-ʿAmma, vol. 1 (Cairo: Al-Majlis al-Aʿla li-l-
Shuʾun al-Islamiyya, n.d.), 473.
24 ʿAbd al-Jabbar al-Asdabadi, Al-Mughni fi Abwab al-Tawhid wa-l-ʿAdl, vol. 6, n.d., 48.
63
Ahmed Izzidien
25 Abu Mansur Al-Maturidi, Taʾwilat Ahl al-Sunnah Tafsir al-Maturidi (Beirut: Dar al-Kutub al-
ʿIlmiyya, 2005).
26 Muhammad b. Al-ʿArabi, Al-Mahsul fi Usul al-Fiqh, ed. Husain Al-Badri, vol. 1 ( Jordan: Dar
al-Bayariq, 1999).
27 Muhammad Al-Zarkashi, Al-Bahr Al-Muhit, ed. Omar Al-Ashqar, ʿAbd al-Sattar Abu Ghudda,
and Muhammad al-Ashqar (Kuwait: Wazarat al-Awqaf al-Islamiyya, n.d.). Hasan al-Attar, Hashi-
yat Al-ʿAttar ʿala Jamʿ al-Jawamiʿ, n.d.
28 Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010), 3.
29 Abi al-Maʿali ʿAbd al-Malik al-Juwaini, Al-Irshad ila Qawatiʿ al-Adillah fi Usul al-ʿItiqad, ed. Mu-
hammad Musa and ʿAli ʿAbd al-Hamid (Egypt: Maktabat al-Khanji, 2002), 258. Abu Hamid
al-Ghazali, Al-Mustasfa min ʿIlm al-Usul, ed. Muhammad Al-Ashqar, vol. 1 (Beirut: Muʾassasat
al-Risala, 1997), 113.
30 Ibn Hajar al-ʿAsqalani, Fath al-Bari sharh Sahih al-Bukhari, ed. A. Ali, vol. 10 (Beirut: Dar al-
Maʿrifa, 1959), 27.
31 ʿAbdullah b. Bayyah, ʿIlaqat Maqasid al-Shariʿa bi-Usul al-Fiqh (London: Al-Furqan Islamic Herit-
age Foundation, 2013), 40.
32 Ahmad al-Qarafi, Al-Ihkam fi Tamyiz al-Fatawa ʿan al-Ahkam wa-Tasarrufat al-Qadi wa-l-Imam, ed.
ʿAbd al-Sattar Abu Ghudda (Halab, Iran: Maktabat al-Matbuʿat al-Islamiyya, 1995).
33 David R. Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a
Revealed Law (Ann Arbor, MI: American Oriental Society, 2011), 26.
34 Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (London: One-
world Publications, 2014), 27.
35 Wael Hallaq, The Origins and Evolution of Islamic Law, 116.
36 Ibid., 145.
37 Ibid., 252.
38 Ahmad Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law
(Herndon, VA: International Institute of Islamic Thought (IIIT), 2005), 480.
39 Abu Is-haq al-Shatibi, Al-Muwafaqat, ed. ʿAbdullah Diraz, vol. 1 (Beirut: Dar al-Maʿrifa, 1998), 81.
40 Ibid.
41 ʿAbdullah ibn Bayyah, ʿIlaqat Maqasid.
42 Abu Hamid al-Ghazali, Al-Mustasfa min ʿIlm al-Usul, vol. 1, 139–40.
43 Ibid., 139–69.
44 ʿAbdullah ibn Bayyah, ʿIlaqat al-Maqasid, 24.
45 Abu Is-haq Al-Shatibi, Al-Muwafaqat, 171–6.
46 Wael Hallaq, The Origins and Evolution of Islamic Law, 147.
47 Muhammad al-Shahrastani, Al-Milal wa-l-Nihal (Cairo: Muʾassast al-Halabi wa-Shurakaʾuh,
1968).
48 Majid Khadduri, ‘The Maslaha (Public Interest) and Illa (Cause) in Islamic Law’, New York Uni-
versity Journal of International Law and Politics 12 (1979–80): 213.
49 Ahmad al-Saʿati, Nihayat al-Wusul ila ʿIlm al-Usul (Mecca: Umm al-Qura University, n.d.).
50 Ahmed al-Jassas and al-Nasamai, Al-Fusul fi al-Usul (Usul al-Jassas) (Kuwait: Ministry of Awqaf
and Islamic Affairs, 1994), 223.
51 Ibid.
52 John Makdisi, ‘Legal Logic and Equity in Islamic Law’, The American Journal of Comparative Law
33(1) (1985): 63–92.
53 Hashim Kamali, ‘The Interplay of Revelation and Reason in the Shari’ah’, in The Oxford History
of Islam, ed. John L. Esposito (Oxford: Oxford University Press, 2000), 112.
54 ʿAbd al-Karim Zaidan, Al-Madkhal li-Dirasat al-Shariʿa al-Islamiyya (Beirut: Muʾassasat al-Risala,
1995), 131.
55 ʿIyad b. Musa, Tartib al-Madarik wa-Taqrib al-Masalik li-Maʿrifat Aʿlam Madh-hab Malik (Morocco:
Wazarat al-Awqaf al-Islamiyya, n.d.), 90.
56 Ahmad ibn Taymiyya, Darʾ Taʿarud al-ʿAql wa-l-Naql, ed. Muhammad Salim, vol. 9 (Riyadh:
Jamiʿat al-Imam, n.d.), 49; ʿAbdullah ibn Bayyah, Fatawa Fikriyya ( Jeddah, Saudi Arabia: Dar
al-Andalus al-Khadra, n.d.), 80–3.
57 Devin Stewart, ‘Muh․ ammad B. Dāʾūd Al-Z ․ āhirı̄’s Manual of Jurisprudence’, ed. Bernard G.
Weiss, Studies in Islamic Legal Theory (Leiden: Brill, January 2002), 118.
58 Ibid.
64
59 Zafar Ishaq Ansari, ‘Islamic Juristic Terminology before Šāfiʿı̄: A Semantic Analysis with Special
Reference to Kūfa’, Arabica 19(3) (1972): 255–300.
60 Makdisi, ‘Legal Logic and Equity in Islamic Law’.
61 Ahmad Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm (Damascus: Dar al-Qalam, 2012), 197.
62 Wael Hallaq, The Formation of Islamic Law, 470.
63 Ahmad ibn Taymiyya, Darʾ Taʿarud al-ʿAql wa-l-Naql, 9:49.
64 ʿAbdullah ibn Bayyah, ʿIlaqat al-Maqasid, 50.
65 Khaled Abou El Fadl, Speaking in God’s Name, 35.
66 Bernard Weiss, ‘Interpretation in Islamic Law: The Theory of Ijtihād’, The American Journal of
Comparative Law 26(2) (1978): 199–212.
67 ʿAbdu ʿAli Al-Ansari, Fawatih al-Rahamut bi-Sharh Muslim al-Thubut, vol. 1 (Beirut: Dar Ihyaʾ al
Turath al-ʿArabi wa-Maktabat al-Muthana, n.d.), 61.
68 Jamal al-Din al-Isnawi, Nihayat al-Sul ʿala Minhaj al-Wusul lil-Baydawi, (Beirut: Dar al-Kutub
al-ʿIlmiya, n.d.), v. (1:59); Abu Bakr Ibn al-ʾArabi, Al-Mahsul fi Usul al-Fiqh, v. (1:96).
69 Ibid., 1:25. Muhammad al-Zarkashi, Al-Bahr al-Muhit, 1:358. Ahmad ibn Taymiyya, Al-Fatawa
al-Kubra, ed. M ʿAta and M ʿAttar, (Cairo: Dar al-Raya lil-Turath, n.d.), v. (14:118).
70 Muhammad Imarah, Rasaʾil Alʿadl wa-l-Tawhid, 2nd edn (Cairo: Dar al-Shuruq, 1988), 286. Abu
Mansur al-Maturidi, Al-Tawhid, ed. Fat-hallah Khalif (Beirut: Dar al-Mashriq, n.d.), 221–4. Abu
Hamid al-Ghazali, Al-Mustas․fa min ʿIlm al-Usul, vol. 1 (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, n.d.), 61.
71 Kiley Hamlin, ‘Moral Judgement and Action in Preverbal Infants and Toddlers: Evidence for an
Innate Moral Core’, Current Directions in Psychological Science 22(3) (1 June 2013): 186–93; Steph-
anie Sloane, Renée Baillargeon, and David Premack, ‘Do Infants Have a Sense of Fairness?’
Psychological Science 23(2) (1 February 2012): 196–204; Deborah Kelemen, Joshua Rottman and
Rebecca Seston, ‘Professional Physical Scientists Display Tenacious Teleological Tendencies:
Purpose-Based Reasoning as a Cognitive Default’, Journal of Experimental Psychology. General
142(4) (November 2013): 1074–83.
72 Taqi al-Din ʿAli ibn ʿAbdul-Kafi Subki, Al-Ibhaj fi Sharh al-Minhaj, vol. 3 (Egypt: Dar al-Tawfiq
al-Masriyya, n.d.), 43.
73 Ibid.
74 Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm, 132.
75 ʿIsmat Ahmad Fahmy Abu Sinna, Al-ʿUrf wa-l-ʿAda fi Raʾy al-Fuqahaʾ (Cairo: Dar al-Basaʾir, 2004),
91–8, 123.
77 Muhammad ibn ʿAbdin, Rad al-Muhtar, 1st edn, vol. 4 (Al-Amiriyya, 1955), 375.
79 Majallat al-Ahkam al-Sharʿiyya, n.d., 118–19, 403.
80 Ibn ʿAbdin, Rad al-Muhtar, 4:187.
81 Ahmad Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿAm.
82 Khaled Abou El Fadl, Islam and the Challenge of Democracy: A ‘Boston Review’ Book (Princeton, NJ:
Princeton University Press, 2015), 19.
83 Ibn Khaldun, The Muqaddimah: An Introduction to History, vol. 2 (Princeton, NJ: Princeton Uni-
versity Press, 1958), 155.
84 Böwering, Crone, and Mirza, The Princeton Encyclopedia of Islamic Political Thought, 36.
85 Abu Hamid al-Ghazali, Al-Iqtisad fi al-Iʿtiqad (Cairo, 1910), 96.
86 Khaled Abou El Fadl, Islam and the Challenge of Democracy, 22.
87 Böwering, Crone and Mirza, The Princeton Encyclopedia of Islamic Political Thought, 198.
88 Azzam Tamimi, Power-Sharing Islam? (Liberty for Muslim World, 1993), 53.
89 Rached Ghannouchi, Al-Dimuqratiyya wa-Huquq al-Insan (Beirut: Arab Scientific Publishers,
2012), 29.
90 Andrew March, Islam and Liberal Citizenship: The Search for an Overlapping Consensus (Oxford and
New York: Oxford University Press, 2009), 264.
91 Ghannouchi, Al-Dimuqratiyya wa-Huquq al-Insan, 50.
92 Ibid.
93 Aziz Azmeh, Al-ʿAlmaniyya min Mandhur Mukhtalif (Beirut: Markaz Dirasat al-Wiħda al-ʿArabiyya,
2008), 62.
94 ʿAbd al-Wahhab al-Misiri, Al-ʿAlmaniyya al-Juzʾiyya wa-l-ʿAlmaniyya al-Shamila (Cairo: Dar al-
Shuruq, 2001), 164.
65
Ahmed Izzidien
95 Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York:
96 See also Khaled Abou El Fadl, Islam and the Challenge of Democracy, 4.
97 Böwering, Crone and Mirza, The Princeton Encyclopedia of Islamic Political Thought, 200, 220.
98 Ibid., 116.
99 Khaled Abou El Fadl, Speaking in God’s Name, 1.
100 David Lyons, ‘Legal Formalism and Instrumentalism – A Pathological Study’, in Evolution and
Revolution in Theories of Legal Reasoning: Nineteenth Century through the Present, ed. Scott Brewer
(Abingdon: Taylor & Francis, 1998), 258.
101 Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (San Francisco: Harper
Collins, 2009), 98.
102 Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press, 2014), 14, 80.
Select bibliography and further reading

Azmeh, Aziz. Al-ʿAlmaniyya min Mandhur Mukhtalif (Lebanon: Markaz Dirasat al-Wiħda al-ʿArabiyya,
2008).
Bayyah, ʿAbdullah bin. ʿIlaqat Maqasid al-Shariʿah bi-Usul al-Fiqh (London: Al-Furqan Islamic Heritage
Foundation, 2013).
El Fadl, Khaled Abou. Speaking in God’s Name: Islamic Law, Authority and Women (London: Oneworld
Publications, 2014).
Ghazali, Abu Hamid al-. Al-Mustasfa min ʿIlm al-Usul. Ed. Muhammad Al-Ashqar (Egypt: Muʾassasat
al-Risala, 1997).
Hallaq, Wael Hallaq. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York:
Ibn Khaldun. The Muqaddimah: An Introduction to History (Princeton, NJ: Princeton University Press,
1958).
Isnawi, Jamal al-Din al-. Nihayat al-Sawl ʿala Minhaj al-Wusul lil-Baydawi (Beirut: Dar al-Kutub al-
ʿIlmiya, n.d.).
Makdisi, John. ‘Legal Logic and Equity in Islamic Law’. The American Journal of Comparative Law 33(1)
(1985): 63–92.
March, Andrew. Islam and Liberal Citizenship: The Search for an Overlapping Consensus (Oxford and New
York: Oxford University Press, 2009).
Misiri, ʿAbd al-Wahhab al-. Al-ʿAlmaniyya al-Juzʾiyya wa-l-ʿAlmaniyya al-Shamila (Cairo: Dar al-Shuruq,
2001).
Qarafi, Ahmad al-. Al-Ihkam fi Tamyiz al-Fatawa ʿan al-Ahkam wa-Tasarrufat al-Qadi wa-l-Imam. Ed.
ʿAbd al-Sattar Abu Ghudda (Halab, Iran: Maktabat al-Matbuʿat al-Islamiyya, 1995).
Raysuni, Ahmad al-. Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (Herndon,
VA: International Institute of Islamic Thought (IIIT), 2005).
Reinhart, A. Kevin. ‘Origins of Islamic Ethics: Foundations and Constructions’. In The Blackwell Com-
panion to Religious Ethics, ed. William Schweiker (Oxford: Blackwell Publishing Ltd, 2005), 244–53.
Subki, Taqi al-Din ʿAli b. ʿAbdul-Kafi. Al-Ibhaj fi Sharh al-Minhaj (Egypt: Dar al-Tawfiq al-Masriyya,
n.d.).
Suyuti, Jalal al-Din al-. Al-Ashbah wa-l-Nadhaʾir (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990).
Vishanoff, David R. The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed
Law (Ann Arbor, MI: American Oriental Society, 2011).
Zaidan, ʿAbd al-Karim. Al-Madkhal li-Dirasat al-Shariʿah al-Islamiyya (Beirut: Muʾassasat al-Risala,
1995).
Zarkashi, Muhammad al-. Al-Bahr Al-Muhit. Ed. ʿUmar Al-Ashqar, ʿAbd al-Sattar Abu Ghudda, and
Muhammad al-Ashqar (Kuwait: Wizarat al-Awqaf al-Islamiyya, n.d.).
66
2
‘God cannot be harmed’
On H ‐ ‐ ‐
· uquq Allah/H
· uquq al-ʿIbad continuum
Wael Hallaq
I
The sharʿı̄ concept of ․haqq1 navigates the cosmological-sociological spectrum robustly, from
one end to the other. H ․ aqq is not only the Truth of the divine as ontology, but also the theo-
logical and supra-deontological source of that which is socially just (ʿadl), right (mustaqı̄m),
and equitable (qist․). H
․ aqq is God as one and many, this being a ‘dualistic’ presence of His
saturating the world in its unity, plurality and particularity. That which is right and equita-
ble is derivative of the Truth, for the Truth, tautologically, encompasses all that is right and
equitable.
Like all else in the phenomenological world – the world that is explained nowadays
through phenomenology and the sociology of knowledge – the very idea of ․haqq is itself a
derivative of the real and not always a fully comprehensible concept as presumably appearing
in the divine vulgate, a concept whose contents and boundaries remain subject to an indef-
inite and unceasing interpretive and intellectual quest of the human mind. The derivative is
also no more than an approximate copy of the original, for the very challenge of the divine
to the human kind – whose originary dilemma was the very concept of rational ‘autonomy’
represented in the Edenic Fall – is precisely the endless exercise of the mind to uncover the
moral and ethical in worldly and social phenomena.
As a derivative, then, ․haqq acquires different meanings within the various and varied
intellectual and commentarial-textual traditions that made up much of the discursive forma-
tions of Islam for the 12 centuries prior to colonial conquest. In Sufism, for instance, al-H․ aqq
acquired socio-cosmological meanings of spirituality and piety that raised the bar of ethical
engagement in the world through care of the self and individualistic self-definitions and
redefinitions of behaviour. But the bar was admittedly not for everyone to reach, having an
exclusivity that is eloquently attested by the survival to the end of the sojourn of a select but
small group of birds in ʿAttar’s powerful Mant․iq al-T․ ayr.
2
If the higher forms of Sufism were not for everyone, the Shariʿah was designed and spe-
cifically intended precisely to engender internal discipline and to regulate human behaviour
in psychological ways across the entire social spectrum, leaving no type of person or recog-
nizable space unregulated, be it a woman or a man, a minor or a major, the mentally firm or
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Wael Hallaq
infirm, a proprietor or dispossessed, a free person or a slave, and so on. But it also integrated
into its own concepts of justice an array of disciplines and ideas, ranging from moderated
forms of mysticism, to logic, theology, adab and poetry.3
Due to its structural centrality, ․haqq had therefore to be defined simultaneously as a theo-
logical, moral, and legal concept, having navigated the waters that have flown and continue
to flow from the divine to the humanly subordinate and even earthly banal. If the world is
made by one mind, then it must be interconnected, and if all its parts relate to each other –
which they do – then every part is as important as the next, and all, small and great, are seen
to exist in symbiosis. The meanings and imperatives that attach to the concept must thus
vary from one stage of the flow to the next. They must accommodate each resting place on
the sojourn downward. The purest and most perfect form – that which we may characterize
as the ideal or highest desideratum – lies at the source of the flow, where al-Lawh․ al-Mah ․fūz
․
is kept.4 But the proverbial water must flow further down, treading the physical world of
humans and their social habitats, languages, customs and forms of knowledge, all of which
being explicitly admitted by the entire range of Muslim intellectuals who discoursed on it as
varied in the extreme.
The Shariʿah’s domain, specialized yet extensive, begins at the point at which the divine
Word reaches the realm of human understanding, the Word itself being stratified and diffused
in its Manifestation (tajallı̄) throughout the Signs (āyāt) of Creation (khalq) as well as those of
the Qurʾan sentential structure. Language, like any physical and intangible creation, is itself a
divine āya (sign) that not only expresses thought but is also itself endowed with performative
power (‘And We said to it “Be”, and so it became’) (2:177; 6:73; 16:40).5 Thus the performa-
tivity that engenders the regulative mode (those moral codes and rules governing human
behaviour) is nothing more than the tail end of the mode in which the world itself was cre-
ated. In this account, there is neither a Hobbesian moment nor secondary causes where God
created a self-regulating world and left it to humans to run as they like, without boundaries
that are conceived to always control and adjudicate human behaviour (legal or otherwise) by
the highest standards of ethics.
This ‘downward’ trajectory of ․haqq meant the non-separation of the low from high prin-
ciples from which the concept emanated. In this trajectory, God is ever-present and most
explicitly involved in regulating the social order. As we will see, the communal and col-
lective, as much as the individual and particular, appear always as the locus of God’s heavy
involvement, without positioning any of these in opposition or conflict with the others. The
lower the flow of the moral code and its regulative domain, the more autonomy is granted to
the individual.6 Yet, however thick this autonomy may be, it remains metaphorical at best, for
just as humans cannot really own any material objects in the world, they cannot possess rights
that are not derivative. Ownership of tangible matter and rights is never absolute, an intended
tenuousness that did a performative work of immense importance, in terms of redistribution
of wealth and much else.
If ․haqq is the consequence and effect of divine volition, then it is also a divine providence
and bounty, seen to derive its moral thrust and juridical rules from revelatory textuality as
adapted to human circumstance and surround. Although this textuality merely intimates and
gestures (ı̄māʾ) at God’s will, leaving the moral-juridical challenge of living life as an ulti-
mately human determination and decision (li-yabluwakum ayyukum ah ․sanu ʿamalan) (Q. 18:7;
67:1–2; 11:17.), the originary ․huqūq, even in their indeterminate and inextricably abstract
forms, are Allah’s and Allah’s alone. For Muslim jurists, theologians and other intellectuals,
this affiliation with the divine amounted not only to a construction of the world that escaped
the trappings of sceptical nihilism (which they encountered at every turn), but also ensured a
68
morally derived legal culture that gave the concept of the rule of law a robust and particularly
thick meaning.
Yet, the strength and seriousness of the derivatives depend on the staying power and po-
tency of that of which they are derivatives. Just as there is no single ․haqq devoid of God’s pres-
ence, there cannot be any ․haqq without a suffusive layer in it of human interest and welfare,
even though it may appear to be a purely ordained ․haqq of God. As al-Shatibi (d. 790/1388)
pointedly sums up the matter,
every Sharʿı̄ value (h․ukm) must ineluctably contain a ․haqq of an individual believer (li-l-
ʿibād) that is geared toward serving (an interest) either in this World or the Next, this
(being based on the principle that) the Shariʿah was created for the purpose of serving
the interest of Muslims.7
II
H
․ aqq encompasses a range of meanings that are intimately connected to judicial decision,
owned property (māl mamlūk), the property itself, the very attribute of ownership, entitle-
ment,8 and all in rem and in personam claims. It signifies a legal stipulation that determines
a right – over something or someone – or an obligation, thus covering the entire range of
so-called religious obligations, civil rights, social codes of proper conduct, and the rights and
obligations ruler and subjects possess within the body politic. This definition must always
account for an essential connection between a right and a person to whom the right will ulti-
mately be connected. The existence of an actual ․haqq (as opposed to a nominal one) without
a person or entity associated with it thus becomes a conceptual and ontological impossibility,
since a right must by definition presuppose a connection to, or implication of, a conception
of person, subject or entity.9
The ontological-cosmological span of ․haqq’s range allowed the jurists to create a tripar-
tite typology in which the ․huqūq are classified as God’s rights (h․uqūq Allah), believers’ rights
(h․uqūq al-ʿibād), and a mixture that straddles the two. The latter was further sub-divided, in
a graded manner, into those ․huqūq that belong more (ghālib) to God and those belonging more
to the ʿibād.
Before proceeding, the term individual requires some clarification since any explication
of ․huqūq al-ʿibād seems to invoke the individual and his or her ‘rights’.10 ‘Individual rights’
or ‘rights of the individual’ must henceforth be taken to refer not to the modern meaning of
‘individual’ but rather to the ‘believing individual’ and/or ‘believing individuals’, the subject
and object of taklı̄f. In this designation, ‘belief ’ is emphatically a necessary condition, since
․huqūq arise because of the ontological presupposition of belief. The distinction is thus not
between an individual as opposed to a group, a collective, or society at large, but rather be-
tween believers and God; or between considerations pertaining to the individual as the locus
of personal rights and some areas of particularly grave communal concern and foundations of
worship. It is, in other words, modulating the individual in communal space, as it is no less
modulating the communal in the larger environment of creation. It would nonetheless be
incorrect in this context to arrogate a supra-human status to God in terms of the ․huqūq of
non-ʿibād, for much of ․huqūq Allah are in fact ․huqūq that relate to, and are often exclusively
associated with, society at large, even when these take abstract or metaphysical forms.
The point here is that the subject of distinction is not between the social collective and the
private individual, or the private and the public – binaries that are distinctly modern. Rather,
the distinction is between spheres in which there arises great concern with matters related to
69
Wael Hallaq
communal welfare and its moral fabric, on the one hand, and those related to private interests
and the sacredness of individual rights within communal contexts, on the other. To speak of the
distinction as one that pits the individual against the group would thus be misleading, since,
as we will see, many ․huqūq Allah pertained to individual rights while a number of ․huqūq
al-ʿibād pertained to collective or group interests. To anticipate my concluding argument in
part, the distinction was intended to assert continuities on the spectrum of these ․huqūq while
at the same time attempting to find an explanation for the right balance between and among
the various relevant considerations in the resolution of each matter falling on any given
point of the spectrum. As much as the discourse of ․huqūq Allah/h․uqūq al-ʿibād was heuristic
in purpose (and it was), it had too many exceptions, overlapping, and grey areas to make it
constitutive of originary – and thus reflective of the actual – conditions that gave rise to legal
doctrine and constructive reasoning.
III
It was a pervasive and consensus-like understanding among jurists and theologians alike that
God’s rights are generally, though not exclusively, intended to regulate the sphere of ‘public’
interest where things in the world belong to no one person or group in particular. They
are attributed to God, one jurist declared, because of the crucial importance of this sphere,
let alone the profound concern that a coercive or oppressive (political) power (ah․ad min
al-jabābira) might attempt to control it as his own, and to do with it as he likes.11 This seems
to be a manifestation of providence rather than defining powers of control or rule. Clearly,
the designation of God here is nominal, for it was understood by everyone that God the
Self-Sufficient does not need to be given such honours or privileges, because, having created
them Himself, He owned them ab initio and without qualification. Nor can He be harmed by
conceding these rights, but fragile humans on the other hand can, and easily so.12
The jurists generally identify two distinctly different areas of the law that they deem to
fall under God’s ․huqūq. The first and readily identifiable area is that of the conventionally cat-
egorized ʿibādāt, the so-called ‘rituals’ involving prayer, fasting, pilgrimage, alms-tax and a
host of related branches of the law such as encouraging right and averting evil, commission of
oaths, and generally acts related to niyya, where deliberate intent is an essential pre-condition
for right practice.13 The other area is what may be called in pre-modern Shariʿah the ‘public’
sphere of criminal offences, 14 including ․hudūd, discretionary punishments (taʿzı̄r), order on
highways, public roads, ports, and public edifices, such as mosques, some waq fs, markets,
bridges, etc.
There is, however, yet another area that straddles these different domains, namely kaffārāt,
‘mixing penalty and worship’.15 These are forms of expiation for a variety of infractions rang-
ing from having sexual intercourse during Ramadan fasting to breaking an oath.16
These ․huqūq are generally said not to be subject to negotiation or reduction in their re-
quirements of validity, procedure, or implementation. Nor are they subject to clemency, am-
icable settlement, or concession of any sort.17 For instance, while ‘individual’s rights’, such as
debts, can be forgiven, God’s rights are not subject, without legal cause,18 to human bargain-
ing of any sort, be they ․hudūd crimes or infractions as innocuous as a seemingly simple prayer.
Whatever ․haqq the ʿabd can lawfully relinquish is not one that can be claimed by God.19 Thus,
punishment of sariqa-theft20 or adultery, once established by a court of law, cannot be dis-
posed of by the forgiveness of the theft victim or of the spouse of the adulterer, respectively.
Nor, still, can God’s rights devolve upon the heirs, for these rights expire upon the expiry
of the concerned charge, whether his or her faults relate to acts of worship or criminality.
70
Nonetheless, the uncompromising appearance of ․huqūq Allah is somewhat deceptive, for

in certain matters of the law, ․huqūq al-ʿibād do take precedence over their counterparts on
grounds of the law’s obligation to be lenient or forgiving.21 Withdrawal (rujūʿ) of zinā con-
fession, for instance, has the power to annul the ․hadd punishment;22 and so does repentance
for the commission of highway robbery.23 Al-ʿIzz ibn ʿAbd al-Salam (d. 660/1262) enumer-
ates several cases in which ․haqq al-ʿabd supersedes that of God, but one particular example
demonstrates the intimacy and mutuality of the relationship between the two categories. As
is well known, jihad is a right of God, leaving the emir as the supreme commander of its cam-
paigns. In modern military conduct, the general’s order in the battlefield reigns supreme, the
violation of which could lead to the serious charge of subordination or desertion. As I have
shown elsewhere in the context of a comparison between the modern state and Shariʿah with
regard to conscription,24 the Shariʿah bestowed substantial autonomy over the combatants,
passing over the commanding general’s orders. According to Sharʿı̄ regulations of armed
engagement, combatants are permitted to withdraw (inhizām) from the battleground should
they themselves – individually or collectively – estimate that defeat is inevitable due to being
outnumbered (idhā arbā ʿadad al-kafara ʿalā aʿdād al-islām).25 In this picture, the Schmittian
decision to invoke the absolute exception collapses in the face of individual moral and po-
litical autonomy that eviscerates sovereignty’s absolute hold over life and death. Far from
being Schmittian, ․huqūq Allah are set aside in favour of ․huqūq al-ʿibād, precisely in one of the
most crucial moments of the political, the body politic, and of the state’s architecture of life
and death.
This autonomy relates to another feature that can be misleading to a modernly condi-
tioned mind. Some Hanafi jurists held the position that a victim of a crime that is potentially
classifiable within the category of ․huqūq Allah may opt for a private settlement, in effect
preempting governmental interference.26 Only if he or she decides to sue in a court of law
does the court decision become a matter of ‘state’ enforceability. There were some jurists
who held opinions seemingly similar to the modern state’s model, whereby sultanic author-
ity is granted an autonomous right to prosecute these categories of offences through Shariʿah
courts. But it was by these courts’ law, not the government’s, that these ․huqūq were adjudged.
We need not overstress, furthermore, that the very possibility of this ‘individual’ autonomy
is absent from the modern state on principle (think, in particular, of homicide or of such
examples as deserting the battlefield).
H
․ uqūq al-ʿibād, on the other hand, pertain to the range of interests any person must enjoy,
beginning with his right to buy and sell, gift, collect or forgive loans, entitlement to blood-
money, damages, and her right to spousal support, alimony and the like. As intimated earlier,
contrary to God’s rights, these rights can be forgiven, demanded, declined or otherwise.
They are also liable to legacy, as in the case of children inheriting the right of their parent
against a debtor (madı̄n) or ‘misappropriator’ (=usurper=ghās․ib). Whereas these rights are
elaborated by the jurists with a keen eye to prevent interference by any external authority or
agent, the opposite, as we saw, was not true. H ․ uqūq Allah seem to be more malleable, negotia-
ble and less ‘absolute’ than ․huqūq al-ʿibād. No reduction of God’s rights, whatever its extent,
can, after all, hurt Him in the least.
But the straddling of many ․huqūq over the two categories necessarily entailed a constant
search for balance.27 Certain legal spheres may conjoin God’s and believer’s rights, in which
case one type of right may overshadow or dominate over the other. Among the ․hudūd, qadhf
directly affects a person’s reputation and standing in the community, but God’s rights –
according to the Hanafis28 – take precedence since the offence has public ramifications,
affecting, as it were, the entire realm of social and communal value. The individual here is a
71
Wael Hallaq
microscopic instance of society at large, and his or her rights in this respect capture and distill
the rights of all individuals making up the community (or so-called society).
Homicide, on the other hand, represents an otherwise ‘mixed’ area of the law where the
individual’s rights dominate over those of God’s. As attested in the Qurʾan and hadith, God
has a right or at least a regulative interest in murder, since the heinousness of the crime surely
affects the entire community in which it occurs. It is a ‘crime against the community’, if
not ‘against humanity’,29 properly speaking. Yet, the harm is also very specific, directly and
most perniciously affecting the victim and by extension the victim’s kin who have, further-
more, the statutory power to determine the type of penalty or even opt for forgiveness.30
There would probably be no difference between qadhf and homicide in terms of ․huqūq clas-
sification had it not been for the statutory Qurʾanic verse, one that lacks parallel in the case
of qadhf, a comparatively less heinous crime. It would seem that customary law in the case
of homicide was so entrenched within tribal structures of the pre-Islamic Near East that a
degree of autonomy was granted the victim’s kin in opting for one of the three courses of
action available to them. 31 As an offence, qadhf must have possessed weaker roots in agnatic
or communal structures (especially in Iraq), thus allowing Hanafi fiqh to take individual
agency out of the law. Social good and public interest thus cannot be always fixed as an
ever-present consideration, not least for the reason that homicide is a significantly harder
crime on society than qadhf is, and yet the ․huqūq of the individuals involved (the victim’s
kin) override those of God.
Historical analysis here might legitimately make demands on legal analysis of doctrine
and reasoning, in that rationalization of doctrine must be recognized to have come subse-
quent to particular and often isolated historical developments. Both qis․ās․ and qadhf acquired
their substantive content and formal shape prior to the rise of the doctrinal distinction between
․huqūq Allah and ․huqūq al-ʿibād. Which is also to say that the doctrine of ․huqūq is, indeed, a
post eventum justification that dialectically but mildly (if not externally) contributed to the
refinements in legal doctrine at a later stage (mostly after the third/ninth century, when the
legal system had already taken its general shape). We therefore cannot make too much of it
in the way of showing the ‘naturalistic assumptions’ on the basis of which fiqhı̄ analysis and
reasoning created and distributed rights, duties and public commitments.32
IV
But it is also a tall claim to argue for the equation of ․huqūq Allah with political power. Some
scholars make strong claims in this regard, equating ․huqūq Allah with ‘state’ control, while
others adopt a mitigated version of these claims in favour of a graded landscape whereby
the more the ․huqūq inch towards God the more discretion political power has over them.
Such theories may not have taken sufficient notice of two important considerations: First,
the jurisdiction of political power must be understood in a highly constrained sense, for the
role of that power was executive, not legislative nor judicial. The ‘state’ (in our context an
inaccurate term at best) did not legislate ․huqūq Allah, nor did it adjudicate them as a matter
of substantive law. According to some jurists, the sultanic executive can prosecute certain
offences irrespective of whether or not the victim initiates a lawsuit. But prosecution here
must be understood to mean the bringing of violators before Shariʿah courts and executing
those courts’ judgments against them, with nearly no other function or role in between.
In the majority of cases, the executive only enforced the courts’ verdicts, and this on the
terms of a law that was not of its own making. Any subsidiary sultanic enactments within
these spheres were administrative in the thinnest sense of the word,33 meagre in substance,
72
sporadic in appearance and generally ephemeral (often repealed upon the death of the sultan
issuing them).34 Furthermore, these administrative measures often came to reinforce and
elaborate on fiqh’s subject matter.
Second, the claim has a short travelling span. As we saw, a significant part of ․huqūq Allah
was not of interest to political authority because they were deemed to be matters of worship.
Aside from managing pilgrimage logistics, securing roads to Mecca and occasional direct
management in the levy of zakat, the greater parts of the arkān lay outside of the reach of
political power. The little understood technologies of the self (significantly residing within
the subjective performative power of the arkān) were and continued to be until the present of
no interest to political power, not even to the modern state or its legislative arm of social en-
gineering. To arrogate intimate connections between ․huqūq Allah and political power is not
only to misunderstand both ․huqūq Allah and political power in pre-modern Islam, but also to
subscribe to unfounded and colonialist ideas of ‘Asiatic despotism’, ideas initially constructed
precisely to justify and rationalize Europe’s colonialist ventures in Asia and Africa.
Perhaps it is not out of place to note here a representative Orientalist understanding of
these ․huqūq, one that is both incoherent and anachronistic. In an article on the subject, Baber
Johansen is at pains to navigate a narrative that genuinely attempts to reconcile his own,
though culturally engrained, biases that emit an ‘Asiatic despotism’ narrative with a fiqhı̄
counter narrative that insisted on the supremacy of Shariʿah’s rule of law. His choice charac-
terization of ․huqūq Allah is the attribute of the ‘absolute’, a term that recurs in the article with
astounding frequency. It is not surprising then to read in Johansen that ‘in the public sphere’
the jurists ‘expect the individual to act as servant of the public interest. Therefore the private
legal person may not derive any personal advantage from his role as servant. This is obvious
for the “claims of God” which consists of acts of worship. No worldly reward is granted
to the individual legal person if he performs his prayers or fasts during Ramadan’.35 Why
prayer or fasting now belongs to the ‘public sphere’ (a purely modern conception with spe-
cifically modern political contents and connotations) is not clear. In fact, Johansen does not
trouble himself with explaining the qualitative difference between ‘penal law’ and the arkān
(inaccurately labelled ritual law) insofar as they both equally belong to ․huqūq Allah. If there is
any meaning to ‘privacy’ or ‘private domain’, it is precisely in that sphere which no political
agency can penetrate: that between the believer’s mind and heart and his or her God. This is
the inner core of the ‘private’, something that the genius of the modern state understood so
well that with all its powers of domination and social engineering, it did not as much attempt
to enter that domain, at least not openly or directly. But prayer is at one and the same time a
‘political’ concept, not only because of the assembly rights that it trumps in a group setting,
but also because of its role in the construction of a robust notion of positive liberty, a notion
that is nothing if not pregnant with political implications.36
I, of course, need not rehearse here the relationship between what Johansen calls ‘reward’
and the potent concept of positive liberty that the technologies of the self engender. This
much-neglected form of liberty gains specific and special importance in cultivating a sub-
jectivity that does have its own reward (to which mass movements of Sufism surely could
attest). To portray the arkān as mere ‘rituals’ is to miss the power that prayer and fasting and
pilgrimage, among others, engender in the production of ‘rights’ and ‘duties’ that define the
quality of ‘freedom’.37 This is consistent with the argument I made elsewhere that these arkān
construct a moral subjectivity that transcends but does not ignore politics, government, or
any aspect of material life. If anything, this technology – which is moral in the first instance –
constructs a subject whose engagement with the minutiae of worldly life is as important as
dedication of the moral self to the ethical design of transcendental power.
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Wael Hallaq
Instead of viewing the relationship of prayer and fasting to ․huqūq Allah in this vein, Johan-
sen sees them as indicative of servitude, no more than an aspect of the manifestation of ‘sur-
render’, for which Islam is so well known in Johansen’s Europe. To be in the realm of ․huqūq
Allah is then to stand in the ‘role as a servant’. That’s all the Muslim subject can do vis-à-vis
political power. In fact, it seems that this is just the beginning of servitude and unprivilege,
not their middle or culmination. The process of servitude can even be elided into subtraction
of rights, a servitude that not only exploits labor but devours whatever wealth remains in the
possession of the ‘state’s’ subject. It is not just in prayer and fasting that servitude appears, but
also in ․huqūq Allah’s provinces of taxation and criminal law, ‘especially in … theft (sariqa)’.
The owner of the stolen property can bring the case before the qadi and request pun-
ishment of the thief. But if he does so, he forsakes his claim to financial compensation
for his property. Private claims and liabilities cannot be regulated by means of public
punishment: al-h․add wa-l- ․damān lā yağatmiʿān (sic.; yajtamiʿān). If the government makes
use of its absolute prerogatives, it does not do so in order to secure private advantages
to private legal persons. If a ‘claim of God’ is fulfilled, it excludes the fulfillment of
any ‘claims of men’ resulting from the same action. The public and the private interests
cannot be interchanged. God does not tolerate any sharing of his claims with individual
legal persons.38
Aside from positing oppositional binaries and mutual exclusions of ‘interests’, the Muslim
God here is made to resemble Europe’s Christian God as practised by the medievalist C atholic
Church: selfish, intolerant and even vengeful (we even notice that ‘God’s rights’ now takes
over the native and Arabicate ‘h․uqūq Allah’, which our author uses nearly everywhere else).
In this imagination, God sets himself apart from the very society he created and does so in
virulently oppositional and hostile ways. It is an imaginary narrative that contradicts the very
raison d’être of the ․huqūq theory, subverting it and eviscerating its social and ethico-humanistic
intentions.
The ․huqūq theory was set up not only to define the limits of, and protect, individual and
private ‘transactions’ but also, and perhaps more importantly, to prop up the technologies
of the self and social control as integral to the kingdom of God on earth. God here is both
sociology and anthropology; He is economics and practical theology, learning and mercan-
tile dealings. Far from setting Himself apart from society, God is society and its interests. If
zakat’s exclusive raison d’être is to aid the poor, and if it is simultaneously a ․haqq Allah, then
God is either the poor or their embodiment. This charitable institution was not a social proj-
ect whose function is to contain crises that are the result of excesses committed, in the name
of a particular political organization, by one class against another: rather, it was an epitome
of a paradigmatic structure that enabled charity and philanthropy on the widest societal scale
ever possible. The zakat, ․sadaqāt and waq f 39 (this latter claiming an average of 50% of all real
property in the Muslim world)40 extended so far and wide, and so deeply into the social in-
stitutions of Islam across the centuries and regions, that ‘God’ here acquires a diametrically
opposite function and image to that which Europe’s Christian God occupied. H ․ uqūq Allah,
as ‘God’ implemented them in real practice within the redistributive wealth institutions and
social practices, stood in comparative antithesis to the extraordinary wealth expropriated by
Europe’s Catholic Church for the expansion of its own power.
It is also no less curious that Hanafi law in Johansen’s account is emphatically character-
ized as ‘proprietor’-oriented, yet the same school that places such a premium on ‘proprietor-
ship’ subordinates the entire range of its proprietary principles when political authority shows
74
up on the discursive scene. This quashing of proprietary rights is double-edged, furthermore.

The ‘state’ does not only engage in oppressing individual rights to property and to transact-
ing in respect of these properties, however lawful these may be, but it extends its dominion
further to exercise a measure of punitiveness at the expense of the proprietary individual. It is
either the rights of the ‘state’ or of the individual, but not both. ‘If a “claim of God” is ful-
filled, it excludes the fulfillment of any claims of men.’
This interpretation is in fact both factually incomplete and interpretively wrongheaded.
We have seen that while there are rights that exclusively belong either to God or ‘man’,
there are many more that contain a mix of the two. The ‘mix’ is a main theme of the jurists’
discourse, one that preoccupied them without respite. A number of distinguished jurists
argued that strictly speaking all ․huqūq straddle the God-human spectrum.41 Second, even if
Johansen’s interpretation of Hanafi law is correct (which it is not), then which Hanafi jurists
adopted such positions as he describes in the quoted passage above? What might Johansen
make of those who proffered different views, within and without the Hanafi school? How
did pluralistic doctrine affect actual practice?
An answer to these questions may be a tall order within the confines of this space: focusing
on Johansen’s interpretation of Hanafi doctrine might nonetheless be sufficient to show the
unjustifiable casting of ․huqūq in political terms (and much less despotic political terms). It is
the universal juristic doctrine in Sunnite Islam that restoration of the stolen property and the
penalty of amputation are in principle required.42 Abu Hanifa (d. 150/767) and every mem-
ber of his school accepted this doctrine. The only condition that Abu Hanifa – together with
some other Hanafis, Thawri (d. 161/778) and Ibn Abi Layla (d. 148/765) – insisted on was
that the stolen property be itself (‘ayn) still in existence and retrievable. Otherwise, he held
that the meting out of penalty precludes compensatory damages. Malik and his colleagues in
the school added that if the thief is well-to-do, then the plaintiff can indeed pursue damages
(that is, even if the stolen object itself is not retrievable) but this right is waived if the thief is
poor. Ibn Rushd (d. 520/1126) explains that the doctrine which combines punishment with
restitution is based on the reasoning that sariqa trumps ․haqq Allah and ․haqq al-ʿabd together,
which is to say that even if the stolen object itself is not to be found, a monetary compensa-
tion is to be made instead, and alongside the punishment. Abu Hanifa and his followers held
that insistence on compensatory damages and penalty would amount to punishing the same
offence twice. For them, the amputation penalty stands in lieu of damages (inna al-qat․ʿ huwa
badal min al-ghurm),43 with the distinct implication that the issue for them is one of fairness
towards the thief: however offensive his or her deed, he or she should not be punished twice
for the same offence. And this is precisely what al-Shaʿrani argues. In his al-Mizan al-Kubra
(The Great Balance, a work that attempts to show how al-Shariʿah al-samh ․āʾ balances and evens
things out in its approaches to society and life44), this jurist explains that the reasoning behind
the various doctrines on this point are concerned exclusively with the defendant and not the
plaintiff or executive authority. In the case of the Hanafi single punishment as well as in the
case of waiving the plaintiff’s right to restitution when the thief is bankrupt, the reasoning is
one and the same: in the first case, leniency that is intended to avert double punishment; and
in the second case, sympathy with the thief ’s poverty. The thief deserves ‘leniency because
there is a whiff of an excuse, namely, his need and poverty’.45
The Hanafi doctrine thus seems more concerned with fairness towards the defendant than
with even preserving the integrity of the individual’s proprietary rights, however inviolate
these latter were. But it should not escape us that proprietary rights are invoked only insofar
as the stolen property remains in existence, which is to say that if it is not in existence, the
demand that the thief be punished and simultaneously be required to secure debts to pay
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Wael Hallaq
for what he or she stole would have been deemed both excessive and oppressive. Poverty, in
other words, defeats wealth, and this is a view that would a fortiori preclude the interests of ex-
ecutive power, routinely seen as potentially and inherently abusive. Thus a proper reading of
juristic discourse on this matter squarely militates against Johansen’s interpretation. The single,
rather than dual, punishment both protects the defendant from two punishments for one offence
and affords the plaintiff the option of securing his or her property if he or she so chooses to do.
But latent misinterpretation does not stop here, nor is it devoid of self-contradiction.
Johansen’s notion of the ‘absolute’ straddles the two divides of his narrative: on the one hand,
it is an oppressive ‘absolute’, doing the work of the European narrative of ‘Asiatic despotism’,
and, on the other hand (when Johansen faces the reality of the jurists and their persistent
discourses), it is the Shariʿah’s unwavering and resilient defense of individual and communal
rights against possible forms of oppression. He recognizes that
The lawyers try to protect the rights of the individual against all possible infringements
by the authorities. They do this by closely defining those actions of the political author-
ity that are legitimized as ․huqūq Allah, thereby narrowing down the possibility of state
interference in the affairs of the private legal persons.46
After spending numerous pages speaking of the ‘absolute’ character of ․huqūq Allah as the do-
main in which the ‘Islamic state’ has ‘absolute’ rights, Johansen now makes the transition to
the jurists’ world and attributes partial will and agency to them: they ‘try’. But ‘trying’ turns
out to be more than the term implies, even by Johansen’s account. Just before the end of the
article, ‘trying’ begins to acquire intense connotations. For ‘the Hanafite lawyers,’ he writes,
the ․huqūq Allah are the transcendent and religious sphere of the ․huqūq al-ʿibād and the
necessary framework for their survival. This is why the ․huqūq Allah are recognized as
absolute by the Hanafite lawyers, and for this reason the government is the trustee of the
public interest.47
Any government trespassing these frontiers risks the demolition of its own legitimacy. This
is not all, however. A ruler ‘interfering with the ․huqūq al-ʿibād should be treated just like any
other person’,48 a juristic doctrine that – I have elsewhere argued – amounts to the absence
of any immunity associated with government personnel.49 It appears that the main point Jo-
hansen is attempting to drive home is captured in the following passage: ‘the government is
entitled to exercise its absolute prerogative only in order to protect the realm of the exchange
relations of the private owners. Government action loses its absolute character as soon as it
interferes with the “claims of men”’.50
It remains unclear what this ‘absolute’ means. All we can assert with confidence is that
only towards the end of Johansen’s account does it begin to have no place in the sphere of
․huqūq al-ʿibād. The jurists, he now seems to say, guarded these ․huqūq with prejudice. In fact
many of them – as Anver Emon has shown and as our discussion above has suggested 51 –
insisted on the preponderance of ․huqūq al-ʿibād over ․huqūq Allah when the two competed for
priority of consideration. But what meaning, one might ask further, does this ‘absolute’ bear
in ․huqūq Allah if: (a) ․huqūq Allah were systematically identified, reasoned and legislated by a
civil population of jurists – private individuals whose erudition and learning (ʿilm) in effect
constituted the ‘legislative’ organ through which the law of the land was constructed and ar-
ticulated?; (b) the law, in its substantive and procedural components, was administered by a
judiciary that emanated from, and operated within, that autonomous community of jurists
76
(a community that flourished within a legal epistemology and system of education of its
own making, having been largely isolated from sultanic interference or management/gov-
ernmentality; or, to put it in Foucaultian terms, from any recognizable form of bio-power)?;
and (c) the verdict was the work of an autonomous judiciary? What remained in all this was
essentially the execution of the verdict, undoubtedly the business and task of the executive.
The architecture of the modern state in this picture is entirely absent, an architecture
under whose overwhelming spell Johansen seems to be writing. The sultanic executive was no
such state, not even equivalent to its executive branch. The sultanic executive did not command
the legislative or the judiciary, except for managing the outer organization of the court sys-
tem; it did not make law to speak of (especially when we compare its qānūns and extra-Sharʿı̄
administrative legislation with the modern ‘administrative state’);52 it did not carve out the
private and public spheres, the boundaries of which the modern state delineates, controls and
constantly negotiates in accordance with a calculus of power that has itself as its own teleol-
ogy.53 But most importantly, the sultanic executive was not invested in the logic of juristic
reasoning and its teleology, which is to say that it saw its function as limited to an enforcer of
the law and, most especially, the enforcer of the punishments of ․huqūq Allah, without this al-
ways implying that when people litigated within the sphere of ․huqūq al-ʿibād, the government
was not at times entrusted with the same duty of enforcing court decisions.54
V
Representing the common doctrine, al-Shatibi insists that there are no ․huqūq that exclusively
belong to the individual, ones that are stripped of any trace of God’s ․haqq. This, al-Shatibi
seems to argue, is an ontological impossibility. But equally impossible – based on the car-
dinal premise that the Shariʿah’s raison d’être is serving nothing less than the best interests of
Muslims – is any ․haqq that is exclusively God’s, for the ʿibād are, after all, the matrix and locus
of every ․haqq; without them there would be no ․huqūq in the first place. It is customary for
jurists, al-Shatibi says, to explain God’s ․huqūq as those areas or points of the law where the
ʿabd has no choice, no agency, or no say (lā khı̄rata fı̄hi lil-mukallaf ),55 and whether these points
or areas were rationally intelligible or not (as in the case of certain ‘rituals’). We may, for in-
stance, understand why we should pray, but it is not entirely clear why the specific timing of
these prayers, why, in other words, these five times, and not others, or why five and not four,
seven or eight. Another way of delimiting the space of these ․huqūq would be to say that any
․haqq relating to the Hereafter is God’s right, whereas ․haqq al-ʿabd would be that which relates
to her concerns and interests in this life. Which is also to say that the essentially transcenden-
tal (and thus not entirely intelligible) defines the boundaries of God’s ․huqūq, while that which
belongs to normative human conduct defines the limits of it counterpart. The distinction
then appears to be between ʿibādāt and ʿādāt, the former being ‘exclusively’ God’s while the
latter ‘exclusively’ the believer’s. But in all of this, al-Shatibi is summing up a diversity within
unity, bringing the divine to bear upon the human and vice versa.
Despite the persistence of typology and classification (which authorize the moral and the
legal, splitting and joining at once, at times delineating enforcement and at others alleviat-
ing the unbearable) there remains a constant and equally stubborn flow and counter-flow
between these ‘rights’. They rarely ever seem to clash, and never are they defined in op-
positional terms, but are rather conceived as constituting a continuity on a spectrum, and
with each other. The highflying sufi who has already arrived at a stage that dispenses with
the techniques of the Shariʿah would find the ebb and flow of ․huqūq not only most natural
for those who need basic guidance but also descriptive of the limitless diversity within the
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Wael Hallaq
greater unity. Little wonder then that al-Shaʿrani wrote al-Mizan al-Kubra. For the jurist-sufi
or sufi-jurist, these divisions and forced categorizations ultimately serve these techniques,
simplifying the rationalized foundations of moral-legal obligation. Neither narrative negates
the other; if anything, these are mutually enhancing performative discourses that seek to as-
sert their own imperatives at best, but always within an overall unifying moral epistemology
and teleology. They are themselves integral to the great variety whose teleology is One and
the same. For the world is ultimately interconnected through One Logic, One Structure
and One Matter. Categorization is an old performance, but oppositional fragmentation of
categories is endemic to our modern forms of knowledge. To superimpose the latter on the
former is to make the Other speak a language it never knew. It is to make the Other even
more distant and less intelligible than it already is.
Notes
1 In classical Arabic, ․haqq is the singular form of ․huqūq, but it is also an abstract noun signifying the
idea, phenomenon or concept as an intangible entity. The plural form, however, was nearly always
grounded in particular and concrete rights. In modern Arabic, the plural form has come to mean
the abstract notion of ‘rights’, and when combined with kulliyya (college), it referred to the modern
‘law school’, where students learn about ‘rights’ as well as laws that give rise to rights. Although ter-
minological designation is not always significant or instructive, it is significant that the move from
the pre-modern ‘madrasa’ to the ‘kulliyyat al-h․uqūq’ signalled a shift in understanding the concept of
‘law’ as a coercive state system: whereas ʿilm and dars (learning and study) embodied the technolo-
gies of the self that engendered a particular form of hermeneutics – that is, where moral techniques
of the self and ethical hermeneutical apparatus came together as a union – the ‘kulliyyat al-h․uqūq’
mainly connotes the technical study of the law as a system of rights. This shift is paradigmatic, in the
sense of deep change within the structural central domains of culture and social constitution. On
paradigms and central domains, see Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s
Moral Predicament (New York: Columbia University Press, 2013), 6–13.
2 Farid Ud-Din Attar, The Conference of the Birds, trans. Af kham Darbandi and Dick Davis (New
York: Penguin, 1984).
3 Cf. Shahab Ahmed’s What is Islam? (Princeton, NJ: Princeton University Press, 2016), in which he
misinterprets my writings on the subject and attributes to me – as well as to others – an excessively
narrow understanding of Shariʿah’s range and cultural embeddedness. On my theoretical and sub-
stantive reservations with regard to the terminology of ‘law’ and ‘legal’, see Wael Hallaq, Sharı̄ʿa:
Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 1–6, a work which
Ahmed lists in his bibliography but which he does not seem to have read. On the paradigmatic stat-
ure of the Shariʿah in terms of its engagements with various other central and peripheral domains,
including mysticism, adab and much else, see The Impossible State, 6–15, and ch. 5.
4 Q. 85:22.
5 See also Wael Hallaq, ‘Moral Cosmology and the Structure of Life’, in Re-Citing the Qurʾan to Mo-
dernity (in progress).
6 On qualifications pertaining to the concept of ‘individual’, see section II of this volume.
7 Abu Is-haq al-Shatibi, Al-Muwafaqat fi Usul al-Ahkam, ed. Muhammad Muhyi al-Din ʿAbd al-
Hamid, vol. 2 (Cairo: Maktabat M. ʿAli Subayh, 1970), 233.
8 As in Q. 70:24–25.
9 ‘Subject’ or ‘entity’ is intended to enlarge the scope of definition beyond the natural person so that
institutions like waq f (which are no less embedded in a matrix of ․huqūq) are also taken into account.
10 Of course a proper, nuanced and full explanation of ․huqūq al-ʿibād (as well as ․huqūq Allāh) requires a
near comprehensive account of the fiqh, discussing each of these ․huqūq in its theoretical, substantive
and juridical contexts. But then this begs the question, for if such an account of fiqh is assumed, then
the need for an explanation of the ․huqūq would become superfluous.
11 ʿAlaʾ al-Din al-Bukhari as cited in al-Mawsuʿa al-Fiqhiyya, 45 vols (Kuwait: Wazarat al-Awqaf wa-l-
Shuʾun al-Islamiyya, 1993–2006), XVIII, 8.
12 ʿAli b. Muhammad Sayf al-Din al-Amidi, Al-Ihkam fi Usul al-Ahkam, ed. ʾAbd al-Razzaq ʿAfifi, 4
vols (Riyadh: Dar Sumayʿi, 2003), II, 332; Abu ʿAbdullah Badr al-Din al-Zarkashi, Al-Manthur fi
78
al-Qawaʿid, ed. Muhammad Ismaʿil, 2 vols (Beirut: Dar al-Kutub al-ʿilmiyya, 1421 AH/2000 AD),
I, 299–300.
13 See Hallaq, Sharı̄ʿa, 229–30; Al-Shatibi, Muwafaqat, II, 333. Al-Shatibi expands the scope of niyya
beyond the conventional delimitation, thereby including virtually the entire sphere of muʿāmalāt.
From sales to giving loans and from marriage to divorce and pecuniary familial support, niyya is to
be present (giving a loan thus can be a merely self-interested transaction of profit, but when inten-
tion is present it would be motivated by a genuine feeling of extending support to a fellow Muslim
(kamā idhā aqrad․a imtithālan li-l-amri bi-l-tawsiʿa ʿalā al-Muslim).
14 For qualifications with regard to the use of such terminology, see Hallaq, Sharı̄ʿa, 308–9.
15 Al-Zarkashi, Manthur, I, 299.
16 Ibid., I, 299, 203–4.
17 Although withdrawal of zinā confession, for instance, has the power to annul the ․hadd punishment.
See n. 23 below.
18 Some jurists permitted forgiveness by way of repentance in certain offences. See Al-Zarkashi, Man-
thur, I, 300.
19 Ahmad b. Idris al-Qarafi, Al-Furuq aw Anwar al-Buruq fi Anwa’ al-Furuq, ed. Khalil Mansur, 4 vols
(Beirut: Dar al-Kutub al-ʿilmiyya, 1998), I, 256.
20 Sariqa-theft is a ․hadd, to be distinguished from a theft that does not meet the procedural require-
ments of ․hadd, an offence categorized as, and punished by, taʿzı̄r.
21 ʿIzz al-Din b. ʿAbd al-Salam, Al-Qawaʿid al-Kubra al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam,
eds. Nazih Hammad and ʿUthman Damiriyya, 2 vols (Damascus: Dar al-Qalam, 2000), I, 255ff.
The section dedicated to this theme is entitled ‘Fı̄mā Yuqaddam min H ․ uqūq al-ʿIbād ʿalā H
․ aqq al-Rabb
Rifqan bihim’. It is also instructive that in another section (I, 252ff.), where he speaks of ․huqūq al-
Rabb as having priority over ․huqūq al-ʿibād, Ibn ʿAbd al-Salam casts the priority as being motivated
by ‘advancing the interests of the ʿibād in the Hereafter’. This common doctrinal attitude, needless
to say, in effect reflects a theistic humanism no less interested in the welfare of human beings than
secular humanism is, albeit providing a different rational articulation of the world as well as a dif-
ferent understanding of what the concept of interest signifies.
22 Al-Zarkashi, Manthur, I, 299.
23 Muhammad b. Ibrahim al-Baquri, Tartib al-Furuq wa-Ikhtisaruha (Beirut: Dar Ibn Hazm, 2005),
397. Here al-Baquri reports al-Qarafi’s pondering over why this heinous crime – alongside that of
heresy (another ․haqq Allah) – is trumped by nothing more than repentance.
24 Hallaq, The Impossible State, 92–5.
25 Ibn ʿAbd al-Salam, Al-Qawaʿid al-Kubra, 255. See also Hallaq, The Impossible State, 94–5, for other
jurists’ doctrines upholding the same legal norm.
26 Baber Johansen, ‘Sacred and Religious Element in Hanafite Law – Function and Limits of the
Absolute Character of Government Authority’, in Islam et Politique au Maghreb, ed. E. Gelner and J.-
C. Vatin (Paris: Centre National de la Recherche Scientifique, 1981), 298–300. Johansen does not
cast the matter as I have, for he departs, as we will see, from the assumption that a victim of theft
would want both his property restituted and the thief punished by amputation. This assumption is
overloaded with the normativity of the state’s role as the ultimate prosecutor that possesses its own
rights to punish and discipline. In the absence of the apparatus of state and its institutional presence in
pre-modernity, the conditioned belief in such rights may have been either thin or virtually absent.
For further information, see section IV in this chapter.
27 If not in the creation of rules and legal values, then at least in using these categories in rationalizing
the law ex post factum.
28 ʿAbd al-Wahhab b. Ahmad b. ʿAli al-Misri al-Shaʿrani, al-Mizan al-Kubra al-Shaʿraniyya al-Mudkhila
li-Jamı̄ʿ Aqwal al-Aʾimma al-Mujtahidin wa-Muqallidihim fı̄ al-Shariʿah al-Muhammadiyya, ed. ʿAbd al-
Warith Muhammad ʿAli, 2 vols (Beirut: Dar al-Kutub al-ʿilmiyya, 1418 AH/1998 AD), 222.
29 Q. 5:32; ‘He who kills a (human) life … has killed all humankind.’
30 Muhammad b. Ahmad b. Juzayy, al-Qawanin al-Fiqhiyya, ed. Muhammad Dannawi (Beirut: Dar
al-Kutub al-ʿilmiyya, 2006), 255–8.
31 Retaliation, blood-money or forgiveness.
32 Anver M. Emon, ‘H ․ uqūq Allāh and H․ uqūq al-ʿIbād: A Legal Heuristic for a Natural Rights Regime’,
Islamic Law and Society 13, no. 3 (2006), 325. Further evidence in support of this claim is the general
absence of discussion of these ․huqūq from us․ūl al-fiqh works, especially in the parts related to ʿilla
and taʿlı̄l. For an instance of the limited use of these ․huqūq in debating issues of us․ūl, see al-Amidi,
Ihkam, II, 331–3. It is also plausible to argue that legal reasoning leads to the classification of legal
79
Wael Hallaq
issues in terms of these ․huqūq but the categorization of ․huqūq itself cannot, on its own, be utilized to
conduct legal reasoning in the fullness of its process. Evidence in support of the mostly descriptive
(as opposed to prescriptive) nature of ․huqūq is represented in the manner in which the madhāhib
differed in classifying and understanding these ․huqūq, for it is certainly the madhāhibs’ general le-
gal principles (which often varied between and among them greatly) that generated the different
understandings and classifications of ․huqūq, not the other way around. An insightful lead into the
debate about the descriptive/prescriptive is Walter E. Young’s review of Behnam Sadeghi’s book,
The Logic of Law Making in Islam (Cambridge: Cambridge University Press, 2013), in Journal of the
American Oriental Society, 136, no. 1 (2016), 227–30.
33 Thinnest because modernity gives ‘administrative regulation’ a thick ‘Weberian’ definition that
was utterly unknown to Muslim jurists and sultans. On the modern administrative state as a ‘blood-
less constitutional revolution’, see Gary Lawson, ‘Rise and Rise of the Administrative State’, Har-
vard Law Review 107 (April 1994), 1231–54.
34 On these themes, see Hallaq, The Impossible State, and Leslie Peirce, Morality Tales: Law and Gender
in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003).
35 Johansen, ‘Sacred and Religious Element,’ 299 (emphasis mine).
36 On these implications insofar as the citizen and citizenship are concerned, see Hallaq, The Impossible
State, 89–110. The premier elaboration of the concept of negative liberty is of course Isaiah Berlin’s
essay ‘Two Concepts of Liberty’, in Liberty: Isaiah Berlin, ed. Henry Hardy (Oxford: Oxford Uni-
versity Press, 2008), 167–217. Berlin’s unqualified fear of positive liberty was so evident that he left
this concept sorely underdeveloped (pp. 178–81), though sufficiently provocative as to expose the
entanglements of negative liberty with capitalism and political economy of the liberal state. See also
Charles Taylor, ‘What’s Wrong with Negative Freedom?’, in The Idea of Liberty: Essays in Honor of
Isaiah Berlin, ed. Alan Ryan (Oxford: Oxford University Press, 1979), 175–93.
37 This theme potentially constitutes a fertile research interest that remains entirely neglected, but one
that deserves far more attention and investment than the nearly useless but nationalistic interests in
such questions as, say, the ‘origins of Islamic law’.
38 Johansen, ‘Sacred and Religious Element’, 299.
39 See Miriam Hoexter, ‘H ․ uqūq Allāh and H ․ uqūq al-ʿIbād as Reflected in the Waq f Institution,’ Jerusa-
lem Studies in Arabic and Islam, 19 (1995), especially at 136–7.
40 Hallaq, Sharı̄ʿa, 142–6, and especially 402.
41 See the concluding section in this chapter.
42 Abu al-Walid Muhammad b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid, ed. ʿAbd al-R azzaq
al-Mahdi (Beirut: Dar al-Kitab al-ʿArabi, 1424/2004), II, 700. ‘In principle,’ because if the stolen
object is retrievable, the restitution of the object as well as the ․hadd penalty become both required
(ajmaʿūʿalā akhdhihi minhu idhā wujida bi-ʿaynihi).
43 Ibid, 700–1. For a general but useful account, see Emon, ‘H ․ uqūq Allah,’ 367–72.
4 4 See the Introduction to Shaʿrani’s Al-Mizan al-Kubra, especially I, 11.
45 ․ ʿalā al-sāriq bi-wujūb al-ghurm in kāna mūsirran bi-khilāfi al-muʿsir, fa-khuffifa
Ibid., II, 228: ‘al-taghlı̄z
ʿanhu li-anna lahu rāʾih․at ʿudhr li-mā ʿindahu min al-fāqa wa-l-h․āja.’
46 Johansen, ‘Sacred and Religious Element’, 299 (emphasis mine).
47 Ibid., 301.
48 Ibid.
49 Hallaq, The Impossible State, 68.
50 Johansen, ‘Sacred and Religious Element’, 301.
51 Emon, ‘H ․ uqūq Allāh’, 381–2. See also section III in this chapter.
52 See n. 34.
53 See Hallaq, The Impossible State, ch. 4.
54 As, for instance, in the case of imprisonment for non-payment of pecuniary debts.
55 Al-Shatibi, Muwafaqat, 233.

Amidi, ʿAli b. Muhammad Sayf al-Din al-. Al-Ihkam fi Usul al-Ahkam. Ed. ʿAbd al-Razzaq ʿAfifi, 4
vols. Riyadh: Dar Sumayʿi, 2003.
Emon, Anver M. ‘H ․ uqūq Allāh and H․ uqūq al-ʿibād: A Legal Heuristic for a Natural Rights Regime’,
Islamic Law and Society, 13, no. 3 (2006).
80
Hallaq, Wael. Sharı̄ʿa: Theory, Practice, Transformations. Cambridge: Cambridge University Press, 2009.
Hoexter, Miriam. ‘H ․ uqūq Allāh and H․ uqūq al-ʿibād as Reflected in the Waqf Institution’. Jerusalem
Studies in Arabic and Islam, 19 (1995).
Ibn ʿAbd al-Salam, ʿIzz al-Din. Al-Qawaʿid al-Kubra al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam.
Eds. Nazih Hammad and ʿUthman Damiriyya, 2 vols. Damascus: Dar al-Qalam, 2000.
Ibn Juzayy, Muhammad b. Ahmad. Al-Qawanin al-Fiqhiyya. Ed. Muhammad Dannawi. Beirut: Dar
al-Kutub al-ʿIlmiyya, 2006.
Ibn Rushd, Abu al-Walid Muhammad. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid. Ed. ʿAbd al-Razzaq
al-Mahdi. Beirut: Dar al-Kitab al-ʿArabi, 1424 AH/2004 AD.
Johansen, Baber. ‘Sacred and Religious Element in Hanafi Law – Function and Limits of the Absolute
Character of Government Authority’. In Islam et Politique au Maghreb. Ed. E. Gelner and J.-C. Vatin.
Paris: Centre National de la Recherche Scientifique, 1981.
Qarafi, Ahmad b. Idris al-. Al-Furuq aw Anwar al-Buruq fi Anwaʾ al-Furuq. Ed. Khalil Mansur, 4 vols.
Beirut: Dar al-Kutub al-ʿIlmiyya, 1998.
Shaʿrani, ʿAbd al-Wahhab b. Ahmad b. ʿAli al-Misri al-. Al-Mizan al-Kubra al-Shaʿraniyya al-Mudkhila
li-Jamiʿ Aqwal al-Aʾimma al-Mujtahidin wa-Muqallidihim fı̄ al-Shariʿah al-Muhammadiyya. Ed. ʿAbd al-
Warith Muhammad ʿAli, 2 vols. Beirut: Dar al-Kutub al-ʿIlmiyya, 1418 AH/1998 AD.
Shatibi, Abu Is-haq al-. Al-Muwafaqat fi Usul al-Ahkam. Ed. Muhammad Muhyi al-Din ʿAbd al-Hamid,
4 vols. Cairo: Maktabat M. ʿAli Subayh, 1970.
Zarkashi, Abu ʿAbdullah Badr al-Din al-. Al-Manthur fi al-Qawaʿid. Ed. Muhammad Ismaʿil, 2 vols.
Beirut: Dar al-Kutub al-ʿIlmiyya, 1421 AH/2000 AD.
81
3
Balancing this world and the next
Obligation in Islamic law
and jurisprudence
Omar Farahat
The concept of legal obligation is as ubiquitous as it is puzzling. It is hardly contentious that a

legal system should aim to impose and ensure the fulfilment of obligations. This is an aspect
of law making and enforcement that legal subjects experience routinely. Yet, what obliga-
tion consists of, what its imposition, breach or satisfaction exactly mean, are all matters that
generate significant conceptual confusion and disagreement.1 The concept of obligation in
Islamic law and jurisprudence is no exception to this. Whereas the idea that legal subjects
are bound in various manners by the prescriptions of the Sharı̄ʿa is hardly problematic, how
to conceive of this legal and moral bond is a much less straightforward matter. In Western
jurisprudence, the idea of legal obligation has received a wide array of explanations ranging
from the command of the social order,2 social pressure generated by widespread recognition,3
and the duty to perform a course of action determined by the law to be in accordance with
the common good.4 In the discipline of principles of Islamic jurisprudence (us․ūl al-fiqh),
obligation or compulsoriness (wujūb) is typically conceived as one of five standard degrees
of normativity that also include recommendation (nadb), permission (ibāh․a), reprehension
(karāha) and prohibition (manʿ). In classical us․ūl literature, which presupposes the need for
divine revelation for the determination of the normative status of actions, those five degrees
are determined by jurists on the basis of various revealed indicants (adilla) through the use of
a range of methods that the discipline of us․ūl al-fiqh elaborates at length.
In this essay, I will argue that the rise of obligation in Islamic legal thought is the result of
the balancing of considerations pertaining to divine authority and the practicality of human
this-worldly needs. The general underlying principle of the rise of legal obligation in Islamic
jurisprudence is, unsurprisingly, one that stems from divine authority. It is by God’s design
and commandment that certain actions come to have particular moral and normative values.
This principle leaves the door open for different understandings of how this divine deter-
mination is made: either strictly through revelation, or by endowing the natural order with
normative value. Within this overarching scheme of obligation, we find that a broad permis-
sion is granted to humans to shape and create obligations vis-à-vis one another in matters
pertaining to their financial and familial dealings through unilateral or mutual expressions
of will. Whereas direct divine injunctions often operate as the broader limit of what may be
legitimately contracted among legal subjects, we note that the vast majority of obligations
82
with which treatises of substantive law are concerned are ones that arise from free expressions
of will, including contracts, oaths, donations, among others. Conversely, outside of the strict
realm of worship, direct divine commandments mainly intervene to impose broad prohibi-
tions that represent the ‘outer’ limits of contractual freedom. Ultimately, we can understand
legal obligation in Islamic jurisprudence as the outcome of an interplay between consider-
ations of faithfulness to revelation, and the practical imperatives of human concrete interests.
By advancing this framework for the understanding of legal obligation, we will be able
to rethink some of the assumptions that appear in the contemporary study of Islamic juris-
prudence. The reliance on divine revelation and treatment of obligation as part of a range
of assessments has often resulted in what I take to be anachronistic understandings. One
of those explanations consists of viewing obligation (wujūb) as properly ‘legal’ as opposed
to recommendation (nadb), which is supposedly merely ‘ethical’.5 As we will see, both the
ethical and the normative or ‘legal’ sides of those five degrees of assessment were inextricably
intertwined in the way they were conceived by classical Muslim jurists. A second anachro-
nistic categorization consists in seeing obligations related to worship (ʿibādāt) as distinctly
private, as opposed to transactional obligations (muʿāmalāt) which, by contrast, are public and
therefore properly belonging to a legal system.6 I will argue in this chapter that the primary
conceptual distinction between worship and transaction rested in the manner in which the
obligation arose and the place of those acts in a larger understanding of human action, rather
than just the private or public nature of the act. This distinction highlights an important
characteristic of the Islamic law of obligations, namely the authority that human consent has
in the production of binding duties. Declarations of intent, including mutual ones such as
contracts, or unilateral such as oaths, produce binding obligations in largely the same manner
that divine pronouncements do.
It becomes clear from this discussion that the ‘command of the sovereign’ model of ex-
planation of obligations does not fit the image conveyed to us in classical treatises of Is-
lamic jurisprudence.7 I will argue that obligation was seen primarily as a reason for action
among many, and that the possibility of reward or punishment was not particularly central
to this understanding. Rather, classical jurisprudents started from a given theory of action
that viewed humans as actively engaged in choice-making at each instant of their conscious
existence, and that sharʿı̄ obligations (i.e. obligations drawn from divine revelation) came to
provide reasons for agents to act in one way rather than the other. This theory of obligation
permeates all distinctions between obligation, recommendation, worship and transaction,
and provides a more robust framework for understanding those distinctions as they were
produced within the classical tradition.
These claims will be made in three sections. In the first section, we will discuss the
concept of obligation as it is formulated as part of a network of related ideas in the classical
theory of us․ūl al-fiqh. In the second section, we will examine the different explanations given
to the worship–transaction distinction. In the third and final section, we will look at some
examples of each of these types and study how they were conceived and explained in treatises
of substantive law ( fiqh).
The concept of obligation in classical jurisprudence

In this section, I will advance a framework for the conceptualization of obligation in Islamic
jurisprudence. It will be shown that, while divine determination of norms and values is the
primary and fundamental condition for the rise of legal obligation, the imposition of obli-
gation did not correspond to a strict model of sovereign command backed by punishment.
83
Omar Farahat
Rather, as we shall see, obligations were primarily seen as reasons or interventions that
serve to make one possible course of action more preponderant (rājih ․) than others. The idea of
reason-giving as preponderance meant that punishment, for many jurists, was not decisive
in the definition of obligation. Furthermore, the deontic function of reason-giving was seen
as closely linked to the moral value of the action, even if jurists vehemently disagreed on
whether or not this moral value can be conceived of independently of divine speech.
The imposition of obligation in Islamic jurisprudence is typically conceived as a dual
parallel process. On the one hand, a pronouncement (h ․ukm) has to be made in relation to the
normal status of the performance of a given action or abstention.8 This pronouncement or
assessment applies to that type of action in relation to all legal subjects in a particular set of
circumstances. On the other hand, a determination has to be made in relation to the mental
conditions of a given agent to decide whether he or she is capable of bearing obligations
(taklı̄f ) in relation to all action-specific pronouncements (ah ․kām) taken together. In other
words, the subject-matter of taklı̄f is the condition of a particular agent in relation to all
actions in general, whereas the subject-matter of ․hukm is the status of a particular action or
abstention in relation to all mentally capable legal subjects in general.
This bipartite framework features in classical us․ūl al-fiqh as prominently as the juristic
attempts to define discipline itself, which typically come in the opening lines of us․ūl trea-
tises.9 For example, Abū H ․ āmid al-Ghazālı̄ (d. 505/1111) defined Islamic jurisprudence as
the science of ‘knowledge of revealed judgments (al-ah․kām al-sharʿiyya) associated with the
actions of legally capable subjects (al-thābita li-afʿāl al-mukallafı̄n)’.10 We can see in this defini-
tion that the ․hukm-taklı̄f dichotomy runs as deep as the conception of Islamic jurisprudence
itself. The normative status of action is viewed as a characterization that attaches to a type of
action or abstention by virtue of divine speech.11 This revelation-centric view of obligation
involved a correspondence between values and norms. Actions are good, for an Ashʿari like
al-Ghazali, to the extent that they have been demanded by divine revelation, and actions
properly considered as firmly obligatory (wājib) are a sub-category of all such actions that
are considered good. The same is true of matters regarding which revelation commands ab-
stention: they are evil by definition, and a subset of those actions is firmly prohibited (h․arām).
The inextricable link between the good and evil character of actions (h․usn wa-qubh․), and
their characterization as obligatory, prohibited, or otherwise, seems to have been widely
accepted by scholars of different trends of thought. For example, Muʿtazilis, such as Abu
al-Husayn al-Basri (d. 436/1044), maintained that the values of actions can be determined
independently of revelation by observation of certain natural properties, yet they agreed
with their opponents that the status of actions as obligatory or prohibited followed by ne-
cessity from such evaluations.12
Unlike contemporary legal theory, therefore, where a certain conception of moral value
may or may not be seen to coincide with what is deemed legally obligatory,13 the conceptual
inextricability of obligation and moral goodness was not a matter of significant disagree-
ment in Islamic jurisprudence. Importantly, this correspondence between value and norm
permeated the conceptualization of various degrees of normativity of actions without any
conceptual distinction between the properly legal and the purely moral as some modern
authors have suggested.14 Al-Ghazali conceives of the standard five-part categorization of
actions as corresponding to three basic types of norm-generating divine speech: demand-
ing action (iqtid․āʾ al-fiʿl), demanding abstention (iqtid․ā ͗ al-tark) and granting the option to
either commit or omit the action (al-takhyı̄r bayna al-fiʿl wa-l-tark).15 This categorization, in
al-Ghazali’s thought, follows the view that no assessment can be made of any action without
divine revelation, and that any normative status must be conferred by divine speech. This
84
is a position that was not shared by all jurists, many of whom argued that actions were per-
missible before revelation.16 Aside from the disagreement on the normative status of actions
before or without revelation, the main point for our purposes is that wujūb, among other
assessments, was defined in terms of enjoinment through divine revelation. This corresponds
to the first characteristic of imposition of obligation with which we are concerned. Obliga-
tion results from some divine determination, either by endowing acts with intrinsic values,
or by indicating those norms through revelation.
The assertion that the obligatory nature of an action follows from a divine injunction
may appear to correspond to a command-of-a-sovereign model of obligation. According to
this model, obligation would be the result of the expression of will of a sovereign, and the
fulfilment of obligation would follow from the need to avoid the threatened consequences.
This conception of legal obligation was famously attacked by H. L. A. Hart in The Concept of
Law, where he argued that many of the ‘internal’ features of a modern legal system, such as
the authority granted to individuals to create their own obligations wilfully, contradict such
view.17 Hart was of the view that it was social pressure stemming from a broad recognition
of the authority of a legal system that created obligation, not the command of a sovereign.
Hart’s modification of the classical positivistic account of legal obligation came under recent
scrutiny, notably by F. Schauer, who argued that the avoidance of the threat of coercion is
indeed an accurate account of the formation of legal obligation in a modern legal system.18
While the theocentric nature of the formation of obligation in Islamic jurisprudence may
suggest that it more clearly accords with a command-of-a-sovereign conception of obliga-
tion, it in fact does not. In his discussion of the ‘definition of the obligatory (h ․add al-wājib)’,
al-Ghazali explained that there are a number of possible ways in which one can conceive of
obligation. Saying that the obligatory is ‘that which is associated with obligation’ is clearly
unhelpful, since it does not explain what obligation is. Another possibility is to say that ‘the
obligatory is that for which one is rewarded and for the omission of which one is punished’.19
Other definitions include ‘that which one may not intentionally omit’, ‘that which renders the
legal subject a disobedient (ʿās․iyan) in case of omission’ and ‘that the omission of which leads to
blame from a legal standpoint’.20 Al-Ghazali neither objects nor adopts any of those views on
obligation. He appears to dismiss them as unfit as proper definitions, yet not entirely inaccu-
rate statements of what it means for something to be obligatory. To reach a proper definition
of obligation, he argued, one must look at the core of the thing being studied. Obligation, he
explained, is one of the attributes that are attached to actions (ʿawārid․ al-afʿāl). The view of
obligation as an attribute that is attached to actions was also shared by al-Basri.21 Other types
of attributes of action include their degree of difficulty, whether they can be known, acquired,
invented, among other forms.22 Obligation is, also, an attribute of action, but one that relates
exclusively to its status that follows from divine revelation (nisbatihā ilā khit․ab al-sharʿ faqat․).
In relation to their attributes that follow from divine speech, actions can be divided into
three categories: 1) actions in relation to which revelation grants legal subjects the option
(takhyı̄r) to commit or omit them; 2) actions regarding which commission should be more
likely (tarajjah․a) than omission; 3) actions regarding which omission should be more likely
than commission.23 This tripartite classification reveals a number of important things about
the conceptualization of obligation in al-Ghazali’s jurisprudence. First, as we have already
seen, the default status of action is to be free from obligation. For al-Ghazali, this pertains
to all actions before revelation, which are devoid of ․hukm altogether. Second, human action
is portrayed as an exercise in the weighing of options: at any given moment in the life of a
legally capable person, they are faced with reasons to commit or omit any range of actions
that are available to them. The effect of the enjoinment (iqtid․āʾ) of action or omission by
85
Omar Farahat
divine revelation is the preponderance (tarjı̄h․) of commission over omission or the reverse,
as the case may be. Divine revelation does not merely promise reward and punishment as
a means of norm-making, but gives reasons for the believers to give more weight to some
actions rather than others in the process of practical reasoning.24 In spite of fundamental
differences in the way they conceptualized the rise of moral value, al-Basri largely agreed
with al-Ghazali’s classification of actions, while maintaining that good and evil properties
were prior to the formation of obligation and prohibition.25 The rise of revealed obligation
as reason-giving, therefore, does not fully accord with the view of obligation as command of
a sovereign backed by a threat of punishment. The enjoinment that leads to preponderance
of commission or omission, which is the process that creates obligation in al-Ghazali’s view,
relies on revelation’s power in advancing truths about the world, its origin, and the meaning
of moral action. The mere enjoinment or solicitation of action through divine speech is suf-
ficient to give the faithful a reason to commit the action.
In attempting to distinguish between actions that are preponderant (rājih․) but not fully
obligatory (i.e. nadb) and fully fledged obligations (wājib), some jurisprudents resorted to the
idea of the possibility of other-worldly punishment, although they rarely identified obliga-
tion itself with the need to avoid punishment. Others conceptualized obligation as ‘the elimi-
nation of the possibility of committing the opposite’.26 Al-Ghazali argued that what separates
the merely preponderant from the specifically obligatory is the ‘feeling of [the possibility of ]
punishment’ that arises from revelation.27 It is not the promise or threat of punishment, but
only the inner conviction that punishment may occur in case of omission that distinguishes
a firmly obligatory action from one that is enjoined but not required in the proper sense.
Al-Ghazali did not advance the promise or threat of punishment as a condition of obligation
because he maintained that God cannot be bound by any promise or obligation. If God de-
cided to release all sinners from punishment, that would be fully just.28 But in holding that
the sensation of the possibility of punishment is a condition of obligation, al-Ghazali departed
from some of his illustrious predecessors, such as the Abu Bakr al-Baqillani (d. 403/1013),
who argued that divine command alone is sufficient to create obligation without the need for
any reference to punishment.29 Those subtle disagreements notwithstanding, it is clear that
the threat of punishment was not as central to classical Islamic jurisprudence as it was for the
‘hard’ positivists’ conceptions of obligation.
ʿIbādāt and muʿāmalāt: a framework for benefit and obedience

In the previous section, we saw that obligation was broadly understood as an assessment of
a particular act made by divine determination and intended to make the performance of
this act preponderant over other courses of action. The image of an authoritarian top-down
imposition of duty does not adequately capture this conception of obligation. This image
becomes even less applicable once we examine the range of considerations that are seen to
underlie obligations in Islamic legal thought. We will see in this section that each case of legal
assessment of an act typically involved a balancing of considerations pertaining to immediate
gain in this world and potential gain in the next. The intricate balancing of considerations
manifested itself in the delegation of duty-imposition to the free expression of human will
in cases that involve immediate gain or worldly interest. This exercise in articulation of
interests can be most clearly seen in the conceptualization of acts of worship as opposed to
transactional dealings.
One of the most widespread distinctions in the substantive areas of Islamic law con-
sists in dividing the body of practical norms between norms of worship (ʿibādāt) and norms
86
of transaction (muʿāmalāt). The distinction is frequently invoked in modern scholarship to

suggest a certain separation between the private and public domains in Islamic law, and,
going even further, to suggest that there was a distinction between the ‘legal’ matters in
the proper sense, and purely spiritual and subjective matters, which would be of little or no
legal relevance.30 In that sense, the ʿibādāt/muʿāmalāt distinction becomes a helpful tool for
the compartmentalization of the Islamic legal tradition in a manner that suits modern legal
presumptions about the public as opposed to private spheres.31 We will see that classifying the
body of legal obligations produced in the substantive fields of Islamic law was seen by some
of the classical jurists as one that rests on a large number of similarities and overlaps between
those two categories, and not in any sense a sharp distinction between two clearly different
types of obligation.
Generally speaking, explanations of the distinction revolved around the degree of human
dependence and interaction they involve, the types of benefit and consideration that they
entail, and whether the justifications of those norms are mostly focused on this-worldly or
other-worldly considerations. Conceived this way, the distinction was of primary impor-
tance in relation to determining the kind of juristic presumption that applies in relation to
the assessment of one or the other. For inter-personal transactions, it was widely believed that
whichever customary form worldly dealings may take, they are to be presumed legitimate.
Conversely, actions of strictly devotional nature that do not aim to achieve any clear imme-
diate benefit by worldly standards are to be presumed prohibited (h․arām) or at least without
assessment (al-tawqı̄f fi al-ʿibādāt).
In his al-Qawaʿid al-Kubra, also tellingly titled Qawaʿid al-Ahkam fi Islah al-Anam (The
Principles of Legal Norms in [the Achievement of ] Benefit for Mankind), Al-ʿIzz b. ʿAbd
al-Salam (d. 660/1262) offers a conceptualization of the ʿibādāt-muʿāmalāt distinction that
rests primarily on the idea of benefit (mas․lah․a). As the title of the treatise indicates, this was a
part of a general framework of needs and benefits that, Ibn ʿAbd al-Salam argued, underlies
the whole edifice of legal obligations. For Ibn ʿAbd al-Salam, the need for regulation of hu-
man interactions by divine law stems from the fact that ‘God Most Exalted created humans
and made some dependent on others (ah․waja baʿd․ahum ilā baʿd ․) so that each group of people
would look after the other.’32 He proceeded to divide humans according to age, social class,
and sex, to illustrate the interdependence of all those categories on one another. In the end,
the mutual care and responsibility (qiyām) for one another leads to the realization of benefits
(mas․ālih․) and avoidance of harm (dafʿ mafāsid) either in this life and next, or in one rather
than the other.
An important observation that must be made here is that the worship–transaction distinc-
tion does not rest on the type of consideration that follows from one or the other. In Ibn ʿAbd
al-Salam’s thought, both forms of obligation can lead to either this-worldly or other-worldly
benefits.33 Acts of worship are not purely obligatory for other-worldly reasons, and social
transactions are not purely obligatory for this-worldly ones. Rather, the distinction is based
on the type of interaction that the obligatory act entails. In acts of worship, mutual depen-
dence and social intercourse are not primary or predominant features. We will see in the
following paragraphs that the distinction is not nearly as sharp as many modern studies make
it to be, and that it was primarily used for conceptual clarity and convenience.
The frequent entwinement of acts of inter-personal transaction with acts of worship
was also evoked by Ibn Taymiyya (d. 728/1328) in the context of his defense of the view
that transactional dealings should follow the norms and customs of their time and place
and, therefore, should be considered permissible in principle in their customary form. In
al-Qawaʿid al-Nuraniyya, Ibn Taymiyya offered a broad and radical view of the fundamental
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Omar Farahat
permissibility of all contractual matters whether of a marital or commercial in nature.34 For

him, contracts can be concluded according to any set of formalities and conditions that may
be customarily prevalent, and we should assume that the applicable customs are valid unless
otherwise indicated by revelation. His reasoning in this respect is telling, and overlaps with
Ibn ʿAbd al-Salam’s idea that benefits underlie obligations. Ibn Taymiyya’s first argument in
support of the broad permissibility of contractual dealings stems from a reading of Qurʾanic
statements that, according to him, reveal that only mutual consent (tarād․ı̄) and satisfaction
(t․ı̄b al-nafs) were required by revelation as necessary for such transactions. 35 It would follow
that whichever customary conditions may be taken by any given community to indicate mu-
tual consent should be accepted by the jurists. Given that, for the most part, divine revelation
does not specify the nature and conditions of such dealings, they should follow entirely the
applicable local customs.
More pertinent to our purposes, Ibn Taymiyya conceived of the ʿibādāt-muʿāmalāt distinc-
tion in a manner similar to Ibn ʿAbd al-Salam: the first, i.e. ʿibādāt, mostly pertain to benefits
in the hereafter, whereas the second, i.e. muʿāmalāt, is designed to realize benefits in this
world.36 For Ibn Taymiyya, this foregrounds the famous maxim that obligations of worship
must be limited to those imposed explicitly by revelation (al-ʿibādāt allatı̄ awjabahā Allah aw
ah․abbahā la tathbutu illā bi-l-sharʿ). For some other jurists, this meant that we should suspend
judgement with regards to acts of worship (tawqı̄f ). This is, in part, an epistemological matter:
our knowledge of the hereafter is limited to revelation, and therefore we should limit our-
selves to it when it comes to worship. Transactional dealings, by contrast, are meant to foster
human every-day customary affairs, and therefore must be presumed permissible unless there
is a clear provision to the contrary (such as the prohibition of ribā, discussed below).37
The types and degrees of social interactions that make up those customary dealings were
detailed by Ibn ʿAbd al-Salam. The first type of social interaction that generates obligation
stems from the need of people of lower status to those of higher status (ih․tiyāj al-as․āghir ilā
al-akābir). This includes the needs for a head of state, regional rulers, judges, legal represen-
tatives, parents, and guardians.38 This type of dependence generates several obligations of
political and matrimonial nature, such as the ruler and judge’s obligations to impose justice
and ensure that the powerful and the corrupt do not abuse the vulnerable. Similarly, without
legal guardianship and representation in family and financial matters, the benefits of forming
a family and the division of wealth among its members would be lost. Conversely, the general
legal subjects are in need of each other for the realization of all ordinary worldly needs, such
as the production and exchange of a wide variety of goods and services. The economic and
material welfare of the community, including the ruling classes, would be damaged without
the daily diligent work of the masses, which, therefore, must be regulated in an equitable
manner by the law. In the same manner, it is necessary for the law to regulate transactions
stemming from ‘the mutual dependence of equals’ (ih․tiyāj al-nuz ․arā ͗ li-l-nuz
․arāʾ). The gen-
eral permissibility granted by divine law (al-sharʿ) to exchanges of movable and immovable
goods and properties of all kinds was necessary to prevent the ‘destruction of the world’
(halāk al-ʿālam), since voluntary and fortuitous conferral of rights are extremely rare and
therefore God’s law allowed and regulated most types of exchanges in order to preserve life
and property.39
Besides classifying the benefits stemming from the formulation of various types of ob-
ligation according to the classes of people and their interdependence, Ibn ʿAbd al-Salam
explained that some of the benefits pertain to this life (al-dunyā), while others pertain to the
next (al-ākhira). This broad benefit-based distinction was also acknowledged by Ibn Taymi-
yya, who divided obligations into those that pertain to ‘the betterment of the faith’ (is․lāh
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al-dı̄n) and to those that relate to immediate needs (h ․āja).40 The basic set of needs and benefits
related strictly to this life centres on considerations that are necessary for human survival
and well-being. Those are the necessities (al-d․arūriyyāt) which constitute the basic and most
important set of benefits to be sought by legal regulation. Whatever is absolutely necessary
for human life on earth constitutes a ․darūrı̄ matter, and anything that extends beyond that,
depending on its nature and value, will be classified as either a need (h․āja), or a superfluous
luxury (tatimmāt wa-takmilāt).41 Benefits achieved in the afterlife are simply the rewards that
follow from the obedience to God, through the fulfilment of revelation’s obligations and
recommendations. In addition, acts of worship have the effect of glorifying God, knowing
Him and being in awe of Him and trustful of His will. These are all, Ibn ʿAbd al-Salam
argues, superior to any rewards one may obtain in the afterlife. Benefits pertaining to this
world (mas․ālih․ al-dunyā), by contrast, are those that the necessities and needs of subsistence
impose, as explained above.
Once again, we see that the avoidance of punishment was not central to the definition
of obligation that emerges from Ibn ʿAbd al-Salam’s analysis of worship and transaction.
The distinction between those two types of benefits does not reflect a worship–transaction
dichotomy in an exact manner, but largely underlies the entire scheme of legal obligations,
since this scheme rests entirely on the various needs and benefits that humans may obtain.
As Ibn ʿAbd al-Salam argued, all imposed duties stem from human interests in this world
and the next.42 Nothing humans do can benefit or harm God, and thus all their actions,
worship included, should be aimed at the achievement of benefit and avoidance of harm. As
we saw, the ‘other-worldly’ benefits of worship are in large part obtained in this world: the
recognition and glorification of God and quitting one’s obsession with this world. Whereas
obedience is meant to entail reward, and disobedience should result in punishment, there
is no definite causality to this order of things. Ibn ʿAbd al-Salam explained that ‘God has
pre-existing knowledge of the fact that some matters follow others, but none of those causes
necessitate their effects’. Rather, ‘God alone ensures that effects follow their causes, punish-
ments follow infractions, and rewards follow acts of obedience. None of those things leads to
their effects, but everything depends on God.’ Ibn ʿAbd al-Salam then brings this line of rea-
soning to its conclusion: ‘if God punished [someone] without any unbelief or disobedience
(kufr wa-ʿis․yān) He would be just and equitable, and if He rewarded without any obedience
or belief He would be a generous benefactor.’43
We saw that human benefit and improvement, whether in concrete or spiritual matters,
was the general guiding principle for all imposed legal duties according to Ibn ʿAbd al-Salam’s
framework. The distinction between the two groups of obligation (ʿibādāt, muʿāmalāt) is de-
fined in relation to the fulfilment of particular benefits. Some obligations are acts of ‘pure
worship’ (ʿibādāt mah․․da). Those are the actions that are exclusively designed to bring forth
benefits limited to the next life. Others are acts of worship that are designed to bring benefits
both in this world and the next. Among this second type, some are predominantly focused on
the afterlife such as prayer (salat), others are predominantly related to this world such as alms-
taxes (zakat).44 It should be noted that Ibn ʿAbd al-Salam gives no example of the first type,
which supposedly only brings other-worldly benefits. Transactions are similarly divided into
those that pertain predominantly to this-worldly considerations, such as sales (bayʿāt) and
leases (ijārāt), and those predominantly focused on considerations of the afterlife. Some trans-
actions combine this-worldly and other-worldly benefits and others by their nature grant the
agent the option to choose between one or the other type of benefit.45
As we can see, for Ibn ʿAbd al-Salam, the division between this-worldly and other-worldly
considerations is not at all decisive in conceiving of the distinction between ʿibādāt and
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Omar Farahat
muʿāmalāt, since obligations in both categories generally tend to include some form of com-
bination of the two benefits. A notable distinction is that ʿibādāt can theoretically pertain
exclusively to the afterlife. It would seem, therefore, that the distinction pertains primarily to
the way the obligation arises, and only secondarily to the nature of the action performed. Acts
of worship are imposed as obligations directly through the text of revelation, whereas transac-
tions require a certain form of consent or expression of individual or reciprocal will in order
for obligations to arise. Similarly, acts that primarily constitute worship tend to have an indi-
vidual nature and can be validly performed in a solitary or collective fashion, whereas transac-
tions appear to require some form of social interaction for their formulation and performance.
A distinctive feature of muʿāmalāt is that they consist of an exchange, which must com-
prise at least two legal acts (ʿiwad․ayn). If one of the prongs of this exchange is waived, then
the legal act remains hypothetical, but it would be inaccurate to describe the transaction as
purely unilateral. Defined as an exchange, muʿāmalāt can thus be divided as we saw above into
those that partially or fully seek to attain rewards in the afterlife, and those that are entirely
focused on this worldly benefit. Reward in the next world can be sought in the context of an
exchange primarily by foregoing one’s side of the exchange wilfully with the intent of pleas-
ing God. Much like rituals and worship, therefore, intent is key in transactional exchanges
in determining what constitutes an act of devotion (t․āʿa) and what is essentially a utilitarian
transaction. In all cases, ‘muʿāmalat are means for the realization of benefits in this world and
next, and to avoid harm in both’.46
Just as all legal subjects fall into particular categories that define their state and manner of
dependence on one another, acts of devotion incorporated within transactional schemes are
not all equal from a moral standpoint. It is laudable to forfeit one’s side of any transaction for
the sake of rapprochement to God (qurbā), but in doing so it would be better to prioritize the
poor over the rich, the devout over the sinners, family members in need over foreigners, and
people of knowledge over people of wealth.47 Once we take into account the wide variety
of human classes and types of needs and forms of interdependence that emerge from them,
we begin to see each individual transaction as a diverse interplay of various sorts of consid-
erations depending on the parties’ intent and their approach to the transaction. It is precisely
this interplay that underlies the process of formation of obligation in classical Islamic legal
thought, a conception in which the ʿibādāt-muʿāmalāt distinction serves primarily as a helpful
conceptual tool rather than a sharp epistemological division.
The range of obligations in classical fiqh

We saw in the previous two sections that the concept of legal obligation in some works of
classical Islamic legal theory was the meeting point of a number of fundamental consider-
ations. The formation of legal obligation was seen as the result of a double determination.
The first pertains to the mental capabilities of the legal subject, the second to the status of
commission or omission of a particular action in a set of given circumstances. Obligations
are seen as reasons for action attached to particular situations. As such, they are designed to
tip the agency of the believer in favour of the required act. This requirement is itself justified
by a range of values that they are deemed to achieve, including benefits that could be ob-
tained immediately in this world or in the hereafter. It has been argued that this converging
of various considerations shows that obligation in the Islamic jurisprudential doctrines is
quite removed from the idea of obligation as a result of the command of a sovereign. I argued
that the ritual–transaction distinction does not indicate any profound difference in type, but
rather points to the justification and manner of formulation of some obligations.
90
In this section, we will take a closer look at some examples of actions that Muslim jurists
saw as obligatory and pay particular attention to the manner in which each group comes
about, as well as its justification. The sum of actions deemed obligatory, recommended,
reprehensible, or prohibited in Islamic law treatises can be divided into categories roughly
corresponding to the considerations of benefit outlined in the above section. Some obli-
gations, primarily related to ritual, attach to all legal subjects who fulfil the conditions of
capacity, such as prayer (salat), pilgrimage (hajj) and the payment of alms-taxes (zakat). The
broad imposition of those actions on all capable legal subjects entails some requirements and
thus makes some other actions obligatory by association, such as the requirement of purity
before prayer (wud․ūʾ). Other obligations are imposed upon the community of believers at
large, which means that the obligation would be fulfilled if a group of capable members of
the community performed it on behalf of everyone else ( fard․ kifāya). The most prominent
example in fiqh works is jihād, although there are other types of community obligations, such
as the need to establish justice and to pursue knowledge of the law.48 Other forms of regula-
tion in fiqh books mostly pertain to mutual obligations that arise among subjects possessing
legal capacity on the basis of their expression of will. It is noteworthy that the majority of
fiqh subjects relate to obligations that individuals create at their will, either through unilat-
eral declaration or oath, or through mutual consent in the case of contractual arrangements.
Whereas obligations that attach to capable persons just by virtue of their faith and capacity
are often conditional upon mere natural processes that indicate time (for prayer and fasting,
for example), contractual obligations arise following the declaration of consent of one or
more individuals. Following this declaration of consent, some obligations will automatically
attach to the parties by virtue of the very nature of the contract, such the husband’s obligation
to financially support his wife. Other obligations can be freely determined by the parties’
will if they do not violate any legal provisions.49
General obligations imposed directly upon all Muslims just by virtue of their being Mus-
lims are not numerous. The primary one among those obligations incumbent upon all Mus-
lims of legal capacity (which, in that case, is defined by puberty, bulūgh) is prayer (salat). The
central importance of the obligation of prayer, and one of the reasons it is the primary and
paradigmatic obligation that falls upon all Muslims with no exception, stems from the fact
that, in its founding sources, prayer appears to play a crucial role in defining Muslim identity.
Prophet Muhammad is reported to have said ‘the covenant among us is prayer; whomever
neglects it is an unbeliever (kāfir)’, and on another occasion to have said that ‘nothing stands
between a worshiper [of God] and unbelief other than neglect for prayer (tark al-s․alā)’.50 The
exact meaning and implications of the link between neglecting prayer and unbelief was a
matter of disagreement among interpreters of Prophetic reports, but in all cases it is plain that
prayer was from the outset seen as central to Muslimhood both as a matter of personal faith
and as a tool of formation of social identity.51
No other obligation can be claimed to befall all legal subjects as broadly and categorically
as prayer does. The other major obligations that are primarily of the ‘ritual’ nature, specifi-
cally alms-taxes and pilgrimage, unlike prayer, are much more constrained by material con-
ditions that are not directly linked to personal and social identity. For example, in alms-taxes,
we see the addition of a number of conditions that must be fulfilled for the obligation to arise:
‘[Muslim jurists] have agreed that [zakat] is incumbent upon any free pubescent Muslim of
sound mind with full ownership of the minimum wealth requirement.’ The required min-
imum of wealth (nis․āb) must remain with the owner for a duration of one hijrı̄ year (h ․awl)
for the zakat to be due on that wealth, and is due on certain types of money and property
according to specific percentages.52 It is clear, then, that zakat is not nearly as categorical
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Omar Farahat
and unconditional in its imposition on Muslims as prayer is. Furthermore, zakat is a concept
through which we can examine the worship–transaction distinction since its status as either
of the two types was contested. Ibn Rushd (d. 595/1198) observes that the disagreement on
whether zakat is due upon the wealth of minors (s․ı̄ghār) can be explained by the uncertainty
on whether it was an act of worship (ʿibāda) or a right (h․aqq) owed to the poor by the rich at
large.53 The point Ibn Rushd is making is that rights and obligations of transactional nature
can attach to wealth with no regards to the personal circumstances of the owner, whereas ob-
ligations of worship, by definition, attach to an individual subject and can only be valid if the
person in question fulfils the required expectations of consciousness and mental capacity.54
It is possible to explain this distinction by reference to Ibn ʿAbd al-Salam’s theory of benefit:
for a worshipper to obtain the next-worldly benefit of zakat, it has to be done consciously by
a worshipping adult.
On the other hand, the material benefit enjoyed by the beneficiary of zakat can be achieved
regardless of the payer’s age or state of mind.
Another issue in which the blurry boundaries of the worship–transaction distinction be-
come manifested concerns the manner in which debt may affect the obligation to pay alms-
taxes. Again, we see that conceiving of an action as an act of worship or a social transaction
affects the manner in which it arises rather than the nature of the act itself. If zakat is an act
of worship, the obligation would attach to any person in possession of the minimum required
wealth, the same way prayer attaches to any conscious Muslim. If, by contrast, zakat is a social
obligation, it would be waived or suspended if the amount of debt reduces a person’s overall
wealth below the nis․āb, since in that case repayment of the debt would take precedence over
performing other social obligations.55 Significantly, Ibn Rushd refuses to make a clear deter-
mination on the nature of the act of paying alms-taxes, but rather falls back on the rationale
of obligation: it is a manner of redistribution of wealth. This move, reminiscent of Ibn ʿAbd
al-Salam’s reliance on a typology of benefits for the classification of obligation, highlights the
inseparability of the notions of worship and social responsibility in the case of zakat.
Fasting during the month of Ramadan (s․iyām) is another obligation that is incumbent
upon capable Muslims in a categorical manner. Unlike prayer, the obligation to fast can be
waived or replaced by another obligation as a result of a broad range of physical conditions.
Due to its individual nature, the ‘worship’ nature of fasting and its relation to possible re-
wards in the next world are quite clear, unlike zakat which is more ostensibly of a hybrid
nature. Fasting during the month of Ramadan has been made obligatory by a clear Qurʾanic
injunction: ‘fasting has been imposed upon you like it has been imposed upon those before
you’.56 The obligation arises merely by the arrival of the month of Ramadan.57 During that
month, Muslims are required to abstain from food, drink and intercourse from sunrise to
sunset. The main two categories who are permitted to omit fasting during Ramadan are
those suffering from illness and those who are travelling. These two licences are provided
directly by Qurʾanic injunction.58
The issue of the permission to omit fasting (ift․ār) poses an important question that pertains
to the theory of obligation in Islamic jurisprudence: are people permitted not to fast during
Ramadan an exception to the rule, or are they simply outside of the domain of the rule alto-
gether? The understanding of how exceptions work, as is the case in contemporary jurispru-
dence, is crucial to understanding how obligation is imposed.59 This distinction arises in the
context of the question of whether it is better to ‘take the licence’ by omitting to fast if one
is allowed to do so, or if fasting in spite of the licence would be better. We have previously
seen that a typology of moral values is inextricably linked to the conception of obligation.
The question here is whether it would be better to perform an obligation that one is licensed
92
to omit. Ibn Rushd’s reasoning is that, since textual sources are conflicted, we must look at
whether a licence is an exception from the norm or a delineation of the scope of obligation.
As we saw, obligation here is understood as a judgment (h․ukm). If we understand license
as an exception, it would mean that the otherwise applicable ․hukm is suspended by virtue
of an additional ․hukm that creates the exception. If we see it as a delineation of the scope of
obligation, it would mean that the initial ․hukm does not include those who are travelling or
ill in the first place. The correspondence of value or preference (tafd․ı̄l) with the imposition
of obligation would mean that, as a general rule, following a ․hukm is preferred to following
none. Thus, if the scope of obligation by definition does not include those who are ill or
travelling, it would be a laudable or preferable initiative if they fasted nonetheless. If, how-
ever, the licence (rukhs․a) is an explicit and specific ․hukm that comes to alter the initial ․hukm,
it would be preferable for them to follow the specific ․hukm, that is, the licence.60
The other positive obligation (as opposed to prohibitions) imposed directly by divine
injunction upon a segment of individual Muslims is pilgrimage (hajj). Among those ob-
ligations that arise independently of an individual expression of will, hajj is perhaps the
most explicitly limited in its scope of application, since the Qurʾanic injunction imposing it
limits the obligation to those ‘capable of performing it’ (man istat․āʿa ilayhi sabı̄lan).61 Besides
the few obligations imposed directly upon certain segments of individual Muslims through
divine declaration, some obligations arise as inevitable conditions of other obligatory ac-
tions. Obligations that arise as necessary conditions for the performance of other obligatory
actions include actions such as ritual purity (wud․ū ͗ ) which is required for prayer, and other
forms of purification referred to as ih․rām, which are necessary for pilgrimage. Obligations
imposed upon the community at large include the participation in battle ( jihād), which is a
type of obligation that can be fulfilled by a group of participants on behalf of the rest of the
community.62
Obligations that arise through expression of individual will or the exchange of consent
come in various forms. A central contractual arrangement that has occupied scholars of
Islamic law and received lengthy treatments in their treatises is marriage (nikāh․). Other con-
tracts commonly regulated by fiqh works include sale (bayʿ), loan (qirād․), partnership (sharika),
pawn (rahn), donation (hiba), and lease (ijāra). I will deal here briefly with the contract of sale
as an example of the dynamics of obligations imposed through divine imperatives and those
that arise by expression of will or other willful legal acts. Sales (buyūʿ) are often treated as the
primary and most widespread example of transactional exchange. In his Bidayat al-Mujtahid,
Ibn Rushd explains that any transaction (muʿāmala) taking the form of an exchange between
two parties is either an exchange of real properties or movable properties, or an exchange
of a real property for a movable property. Each one of those three types of exchange can be
further divided into those in which obligations are immediately due from both parties, or
immediate on one and postponed for the other, or postponed for both parties. This makes all
reciprocal exchanges divisible into nine categories. Since delayed fulfilment for both parties
is prohibited (manhiyyun ʿanhu), that leaves us with six types of exchange, all of which can be
referred to as buyūʿ. We can already see that, while these sales can only take place through the
exchange of corresponding wills (ʿaqd), there are limits to what the parties may agree upon.
We have already seen in the previous section that theorists such as Ibn Taymiyya vehe-
mently defended the principle of contractual freedom on the basis that commercial custom
takes precedence in all matters pertaining to earthly interests within the limits prescribed
by revelation. Those limits typically manifest themselves as general prohibitions. The broad
imperative prohibitions that interfere with the otherwise unhinged contractual freedom fall
into two broad categories. Some prohibitions pertain to the illegitimate nature of the object
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Omar Farahat
of contract, others pertain to the deficient nature of the exchange.63 We can see here that
Islamic law recognizes a duality of inter-personal relations and claims upon objects, a duality
that can be found in civil law theories of obligation. Overriding prohibitions pertaining to
the object of exchange have to do with objects deemed ‘impure’ (najis), such as wine (khamr)
and ‘living parts’ of pigs (as opposed to hair, for instance). Limitations arising from the imbal-
anced or unfair nature of the exchange take several forms. The most obvious type of contrac-
tual imbalance stems from the concept of ribā, which is known in financial arrangements as
a prohibition on interest. In sale contracts, the prohibition on ribā is understood as a form of
unfair burden on one of the parties taking the form of either an unequal exchange of things
of the same type (tafād․ul) or a delayed and unequal exchange of things of the same type (na-
sāʾ).64 These two types are often considered to be two types of ribā, with the first referred to
as ribā al-fad․l or al-tafād
․ul, and the second ribā al-nasāʾ or al-nası̄ʾa. As with many of the cases of
obligation-making in Islamic law, we can see here a juxtaposition of practical and ethical con-
siderations that manifests itself in an articulation of contractual obligations that arise by the
meeting of mutual consent with general prohibitions that pertain to matters of general piety.
Conclusion
This chapter attempted to offer an analysis of selected theoretical and practical discussions on
obligations in some well-known classical Islamic treatises on law and legal theory. As such,
it does not offer a comprehensive survey of all available doctrines within the tradition. From
this limited and selective analysis, however, we begin to see certain themes that characterize
the conception of obligation in Islamic legal thought. The first and most important is the in-
extricable link between the ideas of compulsoriness and moral value. The marginality of the
concept of punishment or coercion in those works can be explained by this close connection
with morality. Second, while scholars from different schools of thought differed greatly on
whether obligation logically follows from value, or if the reverse is true, it appeared to have
been widely accepted that following sharʿı̄ injunctions should promote the betterment of the
believer’s destiny either in this world or the next (often both). As such, no sharp separation
should be assumed between obligations of ritual type and others of a transactional nature.
These did not belong to two different systems of obligation. Rather, they participated in a
scheme of reason-giving that was anchored in an understanding of human interests that en-
compassed existence in both this world and in the afterlife.
Notes
1 On the conceptual complexity of ‘obligation’, John Finnis wrote that ‘Philosophers and moralists
find the grammatical substantive form “obligation” convenient for signifying a wide range of no-
tions: that there are things, within our power either to do or not to do, which (whatever we desire)
we have to do (but not because we are forced to), or must do, which it is our duty to do, which it is
wrong not to do, or shameful not to, which one morally (or legally) ought to do’. John Finnis, Natural Law
and Natural Rights (Oxford and New York: Oxford University Press, 2011), 297.
2 Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967), 114.
3 H. L. A Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 167–80.
4 Finnis, Natural Law and Natural Rights, 315.
5 For example, see Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of
Sayf Al-Din Al-Amidi (Salt Lake City: University of Utah Press, 1992), 350–1.
6 Examples of these approaches are provided in the second section.
7 A theory most famously advanced in John Austin, The Province of Jurisprudence Determined, ed. Wil-
frid E. Rumble (Cambridge: Cambridge University Press, 1995), 18–24.
94
8 The determination or ․hukm in that sense is primarily the pronouncement made by a jurist, a school
of law or the community of jurists on a given action in general not concerning a particular legal
subject. Case-specific determinations take the form of legal opinions issued in response to a par-
ticular question ( fatawā) or court judgments. The concept of ․hukm involves a degree of complexity
shared generally by Islamic jurisprudential concepts inasmuch as it could refer to either God’s
determination on a certain matter (h․ukm Allah) or the jurist’s opinion made after proper exertion
of intellectual effort (ijtihād). Ebrahim Moosa suggests that the proper use of ․hukm in jurisprudence
refers primarily to the rule in its divine ‘transcendent’ form, and mentions that ․hukm is often more
fully referred to as ․hukm Allah. I have not seen ․hukm referred to in this form in classical treatise on
jurisprudence, and, in all likelihood, classical jurisprudents primarily used the term to refer to their
own imperfect determinations made by engaging with the signs (adilla) of divine revelation. The
long and complex process that links the theological concept of divine command to the formulation
of a juristic normative proposition is beyond the scope of this chapter. For all purposes, ․hukm here
will be a reference to practical determinations made by jurists through engagement with revelation
using specific investigative methods. See Ebrahim Moosa, ‘Allegory of the Rule (H ․ ukm): Law
as Simulacrum in Islam?’, History of Religions 38, no. 1 (1998): 1–24. Wael Hallaq emphasized the
juristic nature of ․hukm by referring to it as a value ‘with which all legal acts must be labelled’. Wael
Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh (Cambridge and New
York: Cambridge University Press, 1997), 40.
9 In al-Mankhul, Ghazali explained that taklı̄f is ‘derived from “burden” (kulfa) [ … ] and means im-
posing that which constitutes a hardship’. Abu Bakr al-Baqillani defined imposition of duty (taklı̄f )
as ‘nothing other than the demand (mut․ālaba) to refrain from or commit [action], and the existence of
reward, punishment [ … ], praise and blame in its regard’. Given that discussions of taklı̄f revolved
primarily around the mental conditions of imposition of burden, the concept largely pertained to
the legal subject’s capacity. See al-Ghazali, Al-Mankhul min Taʿliqat al-Usul, ed. Muhammad Hasan
Hitu (Damascus, 1970), 21. See also Muhammad b. al-Tayyib al-Baqillani, Al-Taqrib wa-l-irshad
al-Saghir (Beirut: Muʾassasat al-Risala, 1993), 1:236. Imam al-Haramayn al-Juwayni, Al-Burhan fi
Usul al-Fiqh, 2nd edn, Maktabat Imam Al-Haramayn (Cairo: Dar al-Ansar, 1980), 14.
10 Abu Hamid al-Ghazali, Al-Mustasfa min ʿIlm al-Usul (Cairo: al-Maktaba al-Tawfiqiyya, 2010), 8.
11 Ibid., 80.
12 Muhammad b. ʿAli al-Basri, Kitab al-Muʿtamad fi Usul al-Fiqh, ed. Muhammad Bakr, Hasan Hanafi
and Muhammad Hamidullah (Damascus: al-Maʿhad al-ʿIlmi al-Faransi li-l-Dirasat al-ʿArabiyya in
Damascus, 1964), 8–9.
13 The internal disconnection between the deontic functions of law and ideas of value or reasonable-
ness was noted by scholars including some of the most dedicated naturalists such as John Finnis.
In that context, Finnis observed that ‘unlike the informal social practice of promising, the legal
system does not allow an unrestricted feedback of such “value” or “policy” considerations from the
justificatory level of straightforward practical reasonableness back into the level of practice’. Finnis,
Natural Law and Natural Rights, 312. See also H. L. A. Hart’s famous essay, ‘Positivism and the Sep-
aration of Law and Morals’, Harvard Law Review 71, no. 4 (1958): 593–629.
14 For example, see Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim
Fiqh (Leiden: Brill 1999), 35–6.
15 Al-Ghazali, Al-Mustasfa, 94.
16 A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (Albany, NY: State
University of New York Press, 1995).
17 Hart, The Concept of Law, 38–41.
18 Frederick F. Schauer, The Force of Law (Cambridge, MA: Harvard University Press, 2015).
19 Al-Ghazali, Al-Mustasfa, 39.
20 Ibid.
21 Al-Basri, Kitab al-Muʿtamad fi Usul al-Fiqh, 8.
22 Al-Ghazali, Al-Mustas․fa, 40.
23 Ibid.
24 For an analysis of reasons for action as an element of practical reasoning, see Joseph Raz, From Nor-
mativity to Responsibility (Oxford and New York: Oxford University Press, 2011), 85–106.
25 Al-Basri, Kitab al-Muʿtamad fi Usul al-Fiqh, 9.
26 For example, Fakhr al-Din Muhammad b. ʿUmar al-Razi, Al-Mahsul fi ʿIlm al-Usul, ed. Muham-
mad ʿAbd al-Qadir ʿAta, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1999), 1:178.
95
Omar Farahat
27 Al-Ghazali, Al-Mustas․fa, 40.

28 Ibid., 94.
29 Ibid., 95.
30 For example, Knut Vikør writes that ‘the term Sharı̄ʿah describes both Muslim practices that relate
to law in Western understanding and others that do not. It is better understood as the Muslim
conception of a life in conformity with God’s will. Thus it includes both the rules that regulate
the Muslim’s relationship to God, such as the ritual practices of worship (prayer, fasting, pilgrim-
age, etc.) and the rules that regulate the worshippers’ relationships to one another and to society.
The first are called ʿibādāt (“acts of worship”), the latter muʿāmalāt (“transactions”). The divide
largely coincides with the definition of legal as “concerning cases that are brought before a court of
law”, which applies to the muʿāmalāt’. Knut S. Vikør, ‘Sharı̄ʿah’. In The Oxford Encyclopedia of Islam
and Politics. Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/article/opr/t342/
e0026 (accessed 24 July 2018).
31 The assumption of a sharp divide between ʿibadāt and muʿāmalāt is particularly convenient in the
context of attempts to directly incorporate classical Islamic legal doctrines into modern secularized
legal systems. For example, see Alfitri, ‘Expanding A Formal Role for Islamic Law in the Indone-
sian Legal System: The Case of Mu’Amalat’, Journal of Law and Religion 23, no. 1 (2007): 249–70.
32 ʿIzz al-Din ʿAbd al-ʿAziz b. ʿAbd al-Salam, Al-Qawaʿid al-Kubra: al-Mawsum bi-Qawaʿid al-Ahkam
fi Islah al-Anam, ed. Nazih Hammadi and ʿUthman Damariyya, vol. 2 (Damascus: Dar al-Qalam,
2000), 120.
33 Ibid.
34 Ahmad b. ʿAbd al-Halim b. Taymiyya, al-Qawaʿid al-Nuraniyya al-Fiqhiyya, ed. Muhammad Hamid
al-Fiqi (Lahore: Idarat Turjuman al-Sunnah, 1982), 127–34.
35 Ibid., 133.
36 Ibid., 134.
37 Ibid.
38 Ibn ʿAbd al-Salam, al-Qawaʿid al-Kubra, 2:120.
39 Ibid., 2:121–3.
40 Ibn Taymiyya, al-Qawaʿid al-Nuraniyya al-Fiqhiyya, 134.
41 Ibn ʿAbd al-Salam, al-Qawaʿid al-Kubra, 2:123.
42 Ibid., 2:126.
43 Ibid., 2:125–6. This principle corresponds to what Khaled Abou El Fadl referred to as the separa-
tion of temporal accountability from divine accountability. See Khaled Abou El Fadl, ‘The Place of
Ethical Obligations in Islamic Law’, UCLA Journal of Islamic and Near Eastern Law 4 (2004–2005):
1–40.
4 4 Ibn ʿAbd al-Salam, al-Qawaʿid al-Kubra, 2:125–6.
45 Ibid.
46 Ibid.
47 Ibid., 2:133.
48 For an extended discussion of jihad in the form of fiqh prescriptions, see Ibn Jarir al-Tabari, Al-
Tabari’s Book of Jihad: A Translation from the Original Arabic (Lewiston, NY: Edwin Mellen Press,
2007).
49 For a historical account of the evolution of the idea of mutual promises in the Near East and Islamic
law, see Nabil Saleh, ‘Origins of the Sanctity of Contracts in Islamic Law’, Arab Law Quarterly 13,
no. 3 (1998): 252–64.
50 Abu al-Walid b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Beirut: Dar Ibn Hazm,
1999), 79.
51 For salat as a ‘pillar of religion’, see Wael Hallaq, Sharı̄ʿa: Theory, Practice, Transformations (Cambridge
and New York: Cambridge University Press, 2009), 225–30.
52 Ibn Rushd, Bidayat, 204.
53 A similar debate arose with regards to ․sadaqat al-fitr, which combined characteristics of both an
imposition on property (muʿna) and an act of worship (ʿibāda). See Johansen, Contingency in a Sacred
Law, 133. With regards to zakat, Johansen characterizes its position in Hanafi law as a ‘financial
act of devotion’ (ʿibāda māliyya), since it is an act of worship that consists of a transfer of property
to another person. This hybrid nature meant that requirements of sanity and legal capacity more
generally applied as prerequisites to the payer of zakat. Ibid., 137–8.
96
55 Ibid., 205–6.
56 Q 2:183.
58 Ibid., 246.
59 For example, see Frederick Schauer, ‘Exceptions’, The University of Chicago Law Review 58, no. 3
(1991): 871–99.
61 Ibid., 266. For the Qurʾanic injunction, see Q 3:94.
62 For obligations of worship in general, see Hallaq, Sharı̄ʿa, 224–38.
64 Ibid., 499.

Sources in Arabic
Basri, Muhammad b. ʿAli al-. Al-Muʿtamad fi usul al-fiqh. Ed. Muhammad Bakr, Hasan Hanafi and
Muhammad Hamidullah (Damascus: al-Maʿhad al-ʿIlmi al-Faransi lil-Dirasat al-ʿArabiyya bi-
Dimashq, 1964).
Ghazali, Abu Hamid al-. Al-Mustasfa min ʿIlm al-Usul (Cairo: al-Maktabah al-Tawfliqiyya, 2010).
Ibn ʿAbd al-Salam, ʿIzz al-Din ʿAbd al-ʿAziz. Al-Qawaʿid al-Kubra: al-Mawsum bi Qawaʿid al-Ahkam fi
Islah al-Anam. Ed. Nazih Hammadi and Uthman Damariyyah, 2 vols (Damascus: Dar al-Qalam,
2000).
Ibn Rushd, Abu al-Walid. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Beirut: Dar Ibn Hazm, 1999).
Ibn Taymiyya, Ahmad b. ʿAbd al-Halim. Al-Qawaʿid al-Nuraniyya al-Fiqhiyya. Ed. Muhammad Hamid
al-Fiqi (Lahore: Idarat Turjuman al-Sunnah, 1982).
Sources in English
El Fadl, Khaled Abou. ‘The Place of Ethical Obligations in Islamic Law’. UCLA Journal of Islamic and
Near Eastern Law 4 (2004–2005): 1–40.
Alfitri. ‘Expanding A Formal Role for Islamic Law in the Indonesian Legal System: The Case of
Muʿamalat’. Journal of Law and Religion 23, no. 1 (2007): 249–70.
Finnis, John. Natural Law and Natural Rights (Oxford and New York: Oxford University Press, 2011).
Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunnı̄ Us․ūl Al-Fiqh (Cambridge and
New York: Cambridge University Press, 1997).
Hallaq, Wael B. Sharı̄ʿa: Theory, Practice, Transformations (Cambridge and New York: Cambridge Uni-
versity Press, 2009).
Hart, H. L. A. The Concept of Law (Oxford: Clarendon Press, 1961).
Johansen, Baber. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill
1999).
Kelsen, Hans. Pure Theory of Law (Berkeley: University of California Press, 1967).
97
4
Divine command ethics in
the Islamic legal tradition
Mariam al-Attar
This chapter aims to understand the ways in which revelation and divine injunctions have
been conceived and implemented by Muslim scholars, who sought to establish norms for
deciding the right action and conduct. The main question that will be tackled in this chapter
is whether the Islamic ethico-legal tradition is fully compatible with Divine Command The-
ory (henceforth DCT) or is it compatible with some kind of Natural Law Theory (NLT)?
I argue that any attempt to identify the nature of Islamic law is problematic, regardless of the
fact that many Western and Muslim scholars seem to hold the view that Islamic law is fully
compatible with DCT in ethics.
The first section of this chapter investigates the meaning and the implications of DCT
associated, in the Islamic tradition, with the Ashʿarite school of theology. The second sec-
tion attempts to shed light on some conceptual and historical background. It briefly traces
the development of the controversy over the meaning of moral values and the use of reason
in deriving ethico-legal judgments from the early beginnings until the rise of Ashʿarism.
In the third section, special attention is given to what I choose to call ‘Common Morality
Theory’ (CMT), associated with the Muʿtazili school of thought and the early Muslim jurists
( fuqahāʿ). The fourth section focuses on ‘Divine Purposes Theory’ commonly known as
Maqās․id al-Shariʿah. I argue that the last theory is closer to common morality than to, regard-
less of the fact that most of the proponents of the maqās․id explicitly endorsed DCT. Thus,
the main concern of the last part of this chapter is the position of those who belonged to the
Ashʿarites, yet in their fiqh and legal theory deviated from the maxims of a classical DCT
established by Abū H ․ asan al-Ashʿarı̄ (d. 324/936). The significance of Maqās․id al-Sharı̄ʿah or
the Divine Purposes Theory lies in the fact that many contemporary Muslim reformers rely
on this theory in their efforts to reform Islamic law.
1 Divine command ethics vs. natural law theories

Divine command ethics rests on the assumption that the foundations of morality are divine
commands that are usually expressed in the imperative form of speech in a religious text.
However, whether the imperative form of speech indicates obligation, recommendation or
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Divine command ethics
permission was an issue that sparked a good deal of discussion among early Muslim scholars,
many of whom held the view that when a speech is uttered in a form of a command, it does
not necessarily indicate that what is commanded is obligatory. Divine Command Theory
is not an Islamic theory to start with, it is a theory that was named and propagated in other
religious traditions, and is now popular among the philosophers who call themselves divine
command theorists and who mainly belong to the Protestant branch of Christianity. It is a
meta-ethical theory that interprets morality as obedience to commands. Different names are
given to emphasize different aspects of the same theory. It is sometimes called ‘ethical volun-
tarism’, ‘theological voluntarism’ or ‘divine subjectivism’.
Recently, John Hare, a contemporary philosopher and divine command theorist, defended
the thesis that ‘what makes something morally obligatory is that God commands it, and what
makes something morally wrong is that God commands us not to do it’.1 In his book God’s
Command, he does not confine himself to the discussion of DCT in Christianity. Hare also
dedicates a chapter for three medieval Islamic thinkers, namely al-Ashʿari, ʿAbd al-Jabbar and
al-Maturidi, and a chapter for Judaism. Interestingly, he commends Jews and Muslims for
holding divine law closer to the surface and says that Christians can learn from them. On
the other hand, three authors – a Muslim, a Jew and a Christian – have co-authored a book2
that discusses natural law in the three monotheistic religious traditions: Islam, Judaism and
Christianity. Indeed, there are different versions of ‘Divine Command theories’ and different
versions of ‘Natural Law theories’. The distinction between a DCT and an NLT is based on the
assumption that the former is not necessarily compatible with common sense morality, while
the latter is compatible with morality. All the proponents of DCT accept the view that morality
depends on religion and that God is the ultimate basis of morality. In NLT, there seems to be a
place for reason and common morality. I would say that the main difference between the two
trends that are deeply rooted in all religious traditions is that believers in natural law tend to
appeal to reason and common morality and to the present epistemological framework in case
of disagreement. Also, they might invoke science in support of their arguments. Whereas the
advocates of DCT refer mainly to the scriptures. Of course any disagreement among people
who belong to different religious traditions would then be difficult to solve, as each would ap-
peal to his/her own sacred text rather than common morality, which basically denotes shared
moral values and principles.
In this chapter DCT is taken to denote that moral values (good and evil) have no meaning
apart from divine commands and prohibitions. Divine commands constitute the ontological
and the epistemological basis of morality. A clear implication of this theory is that divine
commands are arbitrary and not purposeful. They define goodness and thus override any rea-
sonable human moral judgement. Contemporary divine command theorists are attempting
to construct theories that would avoid these implications, thus their theories are sometimes
called ‘modified Divine Command Theories’.
In Christianity DCT is usually contrasted with natural law, which seems to be a concept
that emerged from ancient Christian medieval contexts. Concepts taken out of context can
generate misunderstanding and confusion unless they are explicated and carefully interpreted
in ways that makes sense to new audiences. Usually the proponents of natural law assert and
the proponents of positive law deny the existence of a necessary connection between law and
ethics. For a natural law theorist morality is essential for the validity of the law. The doctrine
of natural law has been subject to waves of criticism, yet it continues to appeal to those who
believe that law needs to be grounded in the moral life. The key concept of natural law is
that ‘the law is something that stands apart from human beings as a part of the natural order
of the universe and morality is a matter of following that law’.3
99
Mariam al-Attar
The concept of natural law has its roots in ancient Greek philosophy. There is a gen-
eral agreement that the Stoics were the first to systematize the concept of natural law. For
the Stoics natural law was natural conformability of human nature to the rational order
of the universe as a whole.4 Cicero, a representative of Stoic philosophy, defines law as being
‘the highest reason, implanted in nature, which commands what ought to be done and for-
bids the opposite’.5 It seems that Cicero traces natural law to God as the supreme law giver,
or more specifically to the mind and reason of God.6
The most prominent medieval theologian associated with natural law tradition in Christi-
anity is Thomas Aquinas who used Aristotle’s concept of nature in his formulation of natural
law. It seems that according to both Aquinas and Aristotle nature and human nature have a
purposive existence.7 Aquinas developed his own version of natural law that was compatible
with Christianity. For Augustine long before Aquinas, John Scotus after Aquinas, William
of Ockham and many other Christian theologians, the fall of man that followed his original
sin had affected human nature, thus that nature could not provide a pattern for human laws.
Absolute submission to divine will was the only rule for human beings. For the Christian
theologians who are usually considered the proponents of DCT, it was the divine will rather
than divine wisdom and reason that ruled the universe.8 Yet, according to Aquinas, the basic
principles of natural law are self-evident, universal and with accordance with human primor-
dial nature: ‘The concept of natural law influenced the concepts and the development of law,
ethics, politics and political thoughts and theories of the state and philosophers throughout
the middle ages up to the modern time’.9 However, modern interpretations of the theory
transferred the ancient doctrine. Modern theorists suggested that natural law originated not
in heaven but in man himself. Grotius and Hobbes stand at the head of that school of natural
law which tried to construct the whole edifice of law by rational deduction from a fictitious
state of nature followed by a social contract.10 Hugo Grotius (d. 1645) held that the law of
nature would be valid even if there were no God behind them,11 which, of course does not
mean that he was not a Christian believer.
In Islam the question that is intimately related to DCT is whether revealed law estab-
lishes good and evil or merely indicates it (al-sharʿ muthabbit am mubayyin). If it is the divine
commands, usually referred to as law (al-sharʿ), that establishes what is good or evil, then no
morality is perceived without revelation. Yet if commands only indicate what is good and
what is evil, then good and evil exist independently and thus, in principle, could be known
without revelation. The proponents of ethical voluntarism or DCT in Islam are usually
considered to be the Ashʿarites, whereas the proponents of an alternative of theory, which
I will call ‘Common Morality Theory’ (CMT) rather than ‘objective morality’ or ‘Natu-
ral Law Theory’ (NLT) are usually considered to be the Muʿtazilites.12 I prefer to call the
ethical theory of the Muʿtazilites CMT rather than NLT, for two reasons. The first is that
they emphasized principles that are shared with all human beings like honesty and justice
and considered those principles necessarily known by every mature human being, thus they
believed in common morality. Second, they established that the ultimate aim of religion
and ethics is peoples’ well-being. There is no appeal to nature in a sense that one can find
in medieval Christian theology, where the concept of natural law seems to be built upon
an understanding of nature derived from Aristotle. So, in CMT it is not nature that acts
purposefully, but human beings who have intentions, purposes or aims. Divine Command
Theory was consistently maintained by al-Ashʿarı̄ and the early Ashʿarites,13 though there
seem to be only few Muslims who consistently adhered to the theory, accepting all its nec-
essary implications.
100
2 Contextual backgrounds and necessary clarifications

‘Islamic law’ is the widely accepted translation for both fiqh and Sharı̄ʿah, yet this is a mis-
leading translation, as it blurs the line between what is human and what is divine, leading to
the erroneous belief that human-made laws are divine. As many modern and contemporary
scholars have pointed out, Sharı̄ʿah actually means a way or a method and not law. It desig-
nates the moral principles and rules that guide human beings in their life in order to thrive
in this world and to achieve the ultimate salvation in the afterworld. Whereas ‘fiqh’ literally
means ‘understanding’ and it denotes that significant part of Islamic heritage and scholarship
that is dedicated to the understanding of the divine message and unveils its normative role in
shaping human conduct. By definition, fiqh is human-made, contingent and subject to error.
Sharı̄ʿah, on the other hand, is the eternal, immutable and unchanging way of goodness and
justice that no fallible human being can claim to have fully grasped.
Nevertheless, religious scholars, especially the us․ūliyyūn, those scholars concerned with
establishing the methods, foundations and fundamental principles for belief and practice,
namely us․ūl al-dı̄n (kalām) and us․ūl al-fiqh, definitely aimed at coming closer to understand-
ing the Sharı̄ʿah and implementing their understanding in solving various individual, social,
economic, political and also philosophical problems. Both disciplines emerged and were es-
tablished after various discussions and disputes related to belief and practice led to the devel-
opment of different doctrines that needed to be systematically articulated. For example the
first school of us․ūl al-dı̄n or ʿIlm al-kalām emerged long after issues and doctrines related to free
will and predestination, the fate of the person who committed a grave major sin and other
issues were discussed by Muslims who belonged to early politico-religious factions like the
Kharijites, the Murjiʾites, the Qadarites and the Jabrites. Also, issues related to the principles
of jurisprudence or legal theory have been discussed long before the advent of al-Shāfiʿı̄ (d.
204/820), who is usually considered the founder of us․ūl al-fiqh, not to mention the fact that
laws and regulations were articulated before the establishment of the discipline of us․ūl al-fiqh,
sometimes translated as the ‘Theory of Law’. We often read in classical and modern literature
that attempts to intertwine kalām and fiqh started as early as the beginning of the third/ninth
century with Abū Bakr al-As․am (d. 200/816),14 Ibrāhı̄m al-Naz․․z ām (d. between 220/835
and 230/845) and Abū Hudhayl al-ʿAllāf (d. 235/850),15 which is also the time when the us․ūl
al-fiqh started emerging as a discipline of its own. However, throughout the later centuries,
the relation between the two disciplines, namely kalām and us․ūl al-fiqh, was disputed. Some
were eager to eliminate all issues related to kalām from the works of fiqh and us․ūl al-fiqh on
the ground that issues of kalām were imposed upon the field of fiqh, as held by some H ․ anbalite
jurists, while others only wished to distinguish between the two fields for methodological
and practical reasons, like the Muʿtazilite Abū al-H ․ usayn al-Bas․ri (d. 436/1044).16
ʿIlm al-kalām focused on understanding God, His attributes, His actions, His relation to
human beings and His intention behind sending messengers, in addition to other issues that
are also related to theology. However, kalām was not confined to theological issues. It literally
means speech or talk and is variously translated by different scholars as scholastic, dialectical,
speculative or philosophical theology. It is the discipline that was developed within the cir-
cles formed by Muslims interested in gaining a deeper understanding of their world and their
religion. Yet it seems that kalām was not developed only to satisfy the intellectual curiosity
of some Muslim scholars, but also to defend their religion and to counter some doctrines
with clear political implication, such as the doctrine of predestination that was sometimes
used to justify the brutality and injustice of those who held political power.17 The issue was
discussed by the Qadarites before the emergence of the Muʿtazilite school of kalām in the
101
Mariam al-Attar
mid-second/eighth century. The name Muʿtazilite which means those who separated them-
selves, most probably refers to a group of pious scholars who distanced themselves from po-
litical conflicts and disagreements and dedicated their lives to the study of religion.18 In their
discussion they mainly employed reason, rather than textual evidence, in order to convince
their opponents who often belonged to different religions. It was within the discipline of ka-
lām that issues pertaining to belief (ʿaqı̄da) as opposed to issues related to practice were articu-
lated. Nevertheless, works of kalām usually contain discussions pertaining to the concerns of
fiqh and works of fiqh often contain sections that confirm doctrines derived from kalām and
are related to the fiqhı̄ normative enterprise.
It could not have been a coincidence that the Muʿtazilite emerged from Bas․ra, one of the
Iraqi cities which were associated with the emergence of the ahl al-raʾy who relied on reason
in deriving legal judgements. Ahl al-raʾy, a term rather awkwardly translated to ‘rationalists’,
are usually opposed to the traditionalists (ahl al-H ․ adı̄th), who favoured the reliance on textual
proof, even when it could be only a H ․ adı̄th ah․ād with a limited number of transmitters in its
chain of narrators. In a book written by Abū Hilāl al-ʿAskarı̄, called ‘al-Awāʾil’, literally, ‘The
Firsts’, it is mentioned that one of the founders of the Muʿtazilite was the first to discuss issues
related to us․ūl al-fiqh. The Muʿtazilite had a great impact on the emergence of us․ūl al-fiqh.19
The term raʾy was used to indicate a sound opinion. However, the challenge posed by the
traditionalists, who emphasized the value and the priority of the prophetic tradition over rea-
soned opinion eventually led to degrading the status and the value of reasonable judgement
changing its meaning from discretionary reasoning to ‘fallible human thought’.20
Many decisions of early legal authorities were based on forms of reasoning that did not
follow a strict methodology that would link the judgment arrived at to an explicit Qurʾanic
injunction or an example from the prophetic tradition. Peoples’ custom (ʿurf ) that did not
contradict the clear teachings of the Qurʾan was invoked in addition to preference (istih ․sān
and istis․lah․). What all these extra textual methodologies had in common is that they were
based on human reason rather than revelation, while at the same time were compatible
with revelation. The tendency to invoke such concepts in the process of determining law
co-existed with the increasing reliance on prophetic tradition and the development of a dis-
cipline of ʿilm al-H ․ adı̄th that was considered crucial for eliminating differences in opinion
and customs, and maintaining consistency and uniformity in deriving legal rulings across the
Muslim world. This tendency was supported by al-Shāfiʿı̄, who is often considered to be the
founder of legal theory or us․ūl al-fiqh. Al-Shāfiʿı̄ himself arrived in Iraq in around 184/800,
where he encountered the Hanafis, associated with al-raʾy and also the Muʿtazilite. The en-
gagement with the Iraqis must have had a deep impact on al-Shāfiʿı̄.21 The Hanafis had sought
to systematize the edifice of law by subjecting its individual rulings to the test of raʾy, while
al-Shāfiʿı̄, according to El-Shamsy,22 went deeper by striving to systematize the method-
ological basis of the law as a whole. While al-Shafiʿi emerged as a non-Muʿtazilite, he most
certainly did not belong to the camp of the traditionalists (ahl al-H ․ adı̄th ) as a traditionalist he
would have betrayed his comrades when he insisted on the essential role of qiyās (reasoning
by analogy) in law.23 His importance was in the establishment of a methodology for deriving
laws that elevated H ․ adı̄th, even the ah․ād H
․ adı̄th, over reason, in an attempt to reduce or rule
out differences in opinion.
The most significant early Shāfiʿite jurist, who seems to have articulated and spread
Shafiʿism, was Ibn Surayj (d. 306/918). None of his works seem to have survived, yet we
know that his students were the most prominent Shafiʿites of the first half of the fourth/
tenth century. Ibn Surayj held that the unaided reason (al-ʿaql) can discern the good and
the detestability of some things. 24 Al-Sayrafi (d. 330/942) and al-Qaffal al-Shashi al-Kabir
102
(d. 365/976), among other Shafiʿites, all held positions that were later correctly seen as
endorsing elements of the Muʿtazilite ethical doctrines. 25 Thus, regardless of the fact that
al-Shafiʿi insisted on grounding legal judgments in textual evidence, there is no reason for
attributing the view that values are ultimately established by God’s command to al-Shafiʿi.
Indeed, the work of his early followers suggests the opposite. Therefore, I think there is
no good reason for considering al-Shafiʿi’s work to fall in the domain of divine commands
ethics as argued by John Kelsay, 26 because, referring to a text in a case of disagreement on a
legal matter is one thing, while holding that moral values exclusively depend on scripture is
a another. After all, there is no legal tradition that is not ultimately based on a certain text
that is considered authoritative by the community that adheres to it. Also, most of the early
jurists who accepted the qiyās methodology, which implies that there is a cause or wisdom
behind the prohibition of certain things or acts, must have accepted that humans are able
to discern good and bad apart from revelation. It was only later on and after the spread of
the Ashʿarite school of kalām that the role of reason in deriving ethico-legal judgments was
disputed, and that was primarily for theological and not legal reasons, as will be argued
later on.
Abū Hasan al-Ashʿari (d. 323/935) was initially a Muʿtazilite, but as he disagreed with
them on various issues he dissented. Later he became the eponym of a new school of kalām
that did not become influential in the field of law until the time of al-Juwayni (d. 478/1085),
who seems to have been the first to establish a juridical method on an Ashʿarite basis.27 Al-
Juwayni is also generally recognized as the most important figure between the old Ashʿarite
tradition and the later one that included al-Ghazali (d. 505/1111) and his successors.
3 Common morality theory (CMT) vs. divine command ethics

Sound arguments against ethical voluntarism were articulated by the Muʿtazilites and can be
found in al-Mughni, the voluminous book written by ʿAbd al-Jabbar (d. 415/1024), who be-
longed to the Basran branch of the Muʿtazilites. He held that divine intentions and purposes
that lie behind His commands are the same as the ultimate humans’ purposes.
Linking human moral exhortations and the ultimate purposes of a rational human being
to the ultimate purposes of the divine injunctions, ʿAbd al-Jabbar indicated the importance
of interpreting a text in a way that conforms to human purposes and values.28 For ʿAbd
al-Jabbar:
An adult with sound mind necessarily knows the evilness of transgression (qubh․ al-z ․ulm),
the evilness of being ungrateful to a benefactor (kufr al-niʿma), and the evilness of lying if
it is not intended to bring about benefit or to repel harm. One also knows the goodness
of compassion and giving (al-ih․sān wa-l-tafad․․dul). One also knows that thanking a bene-
factor and returning a trust when asked for and being just are all considered obligations.29
Thus obligations (al-takālı̄f ) imposed by God presuppose moral truth and do not create
morality.
Law and ethics are often considered to be one and the same thing in Islam. However, a
sharp distinction, even a cleavage between ethics and law, developed in Islamic legal tra-
dition. Indeed, the existence of ․hiyal (legal trickery) literature can serve as a proof that law
and ethics are not one and the same.30 One can also say that there is a distinction between
law and Shariʿah, with Shariʿah being more of a system of morality than law. Theoretically,
the jurists acknowledged that the specific injunctions of the Qurʾan are meant to satisfy the
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principles of justice, goodness, forgiveness and so on. These principles constitute the rationes
legis (ʿilal al-ah
․kām) of the Qurʾanic injunctions, and the whole theory of qiyās (analogical
reasoning) is based on this premise. In fact the later Ashʿarite jurists have appealed to a the-
ory that would eventually emphasize the principles of equity, justice and goodness when
they formulated the maqās․id paradigm. Yet the problem is that apparently the maqās․id theory,
which is an Islamic ethical theory, was never used to infer laws or to check the appropriate-
ness of some existing rules. Though, when these maqās․id or objectives of the Shariʿah can be
identified, ‘it is not only permissible to pursue them, but it is our duty to make an effort to
identify and implement them’.31
It has already been mentioned that the proponents of ethical voluntarism or DCT in Is-
lam are usually considered to be the Ashʿarites, whereas the proponents of CMT are usually
considered to be the Muʿtazilites. Yet, such a simple classification into proponents of DCT
and proponents of CMT is not based on an inquiry into the nature of the legal reasoning,
but seems to be based on the explicit assertions of the jurists who adopted the theologi-
cal and moral doctrines articulated in the works of the Ashʿarite kalām. Also, it is worth
mentioning that, for instance, some Muʿtazilites, like ʿAbd al-Jabbar, and Ashʿarites, like
al-Juwayni and al-Ghazali, belonged to the same legal school of Shafiʿism, while holding
opposing meta-ethical presuppositions. Thus such a classification oversimplifies the subject,
especially when we are attempting to investigate the place and the impact of ‘DCT’ on legal
tradition.
Muʿtazilite ethical theory, as articulated by the 11th-century Muslim thinker ʿAbd al-
Jabbar, is an option available for theistic morality in Islam. However, divine command
ethics and Muʿtazilite ethics do not exhaust all the ethical theories in Islamic thought.
The theory that prevailed in Islam assumed that divine commands are purposeful. Rich-
ard Frank rightly stated that Ethical Voluntarism, advocated by al-Ashʿari, implies that ‘it
is fundamentally and ultimately impossible to explain God’s commands in terms of any
purpose or end’.32 The concept of ‘purposeful commands’ contradicts the basic assumption
of any consistent classical DCT. Ethical Voluntarism is arbitrary by definition, while any
command that is based on purposes, or guided by reason, is by definition not arbitrary. A
morality that demands people to adhere to divine injunctions, when those are understood
to be purposeful and appeal to human reason, cannot be called ‘Ethical Voluntarism’ nor
‘Divine Command Theory’. The concept of a command itself implies clarity, unambiguity
and urgency and demands immediate obedience without any reflection or consideration.
However, that there are reasons behind divine commands was clearly presupposed by the
scholars who established qiyās as a source of law (us․ūl al-fiqh). Otherwise no rule could have
been derived from another, and no derived judgment could have been considered a valid
judgment. Thus, the ultimate ground for any normative judgment in fiqh does not lie in the
divine commands themselves, but in the purposes or reasons behind the divine commands.
Moral values then are not established by what is commanded or prohibited by God. By His
commands and prohibitions He merely indicates normative judgments which are ultimately
grounded in moral values.
The implied position of most of us․ūl al-fiqh scholars is analogous to ʿAbd al-Jabbar’s posi-
tion in maintaining that ‘God is promulgator and not creator of morality’, regardless of the
fact that some of them who adhered to the school of al-Ashʿari advocated the opposite. In us․ūl
al-fiqh ‘rationalisation in terms of reasons (ʿilal) and ends is demanded in order that one pos-
sesses the rules of the Shariʿah in their generality and knows how to apply them’.33 Rational-
isation in terms of reasons and ends contradicts the basic assumptions of Ethical Voluntarism.
104
In order to understand the Ashʿarites’ insistence on holding on to theological voluntarism

and carefully separating themselves from the Muʿtazilites, even when their views resembled
those of the Muʿtazilites, we should understand the basis of the controversy. The Muʿtazilites,
in their attempt to understand the world, adopted a methodology that was based on analogy
from the observable to the unobservable (qiyās al-ghāʾib ʿalā al-shāhid). They raised philo-
sophical questions related to various ethical, epistemological and ontological issues, such as
human free will, the nature of moral value, the epistemic grounds for moral obligation and
the nature of knowledge. The theories that different branches of the Muʿtazilites developed
had social, political and, of course, theological implications. Following their methodology,
they applied their reasoning to the divine realm and judged divine actions and His injunc-
tions to be good and just, in a sense that appeals to human understanding. For them it was the
divine gift of human reason that can serve for understanding both this world and the divine
realm. They were known as the people of unity and justice (ahl al-tawh․ı̄d wa-l-ʿadl) after the
two main principles that they considered the most important fundamental principles that
capture the spirit and the teachings of Islam. They sought to understand not only the wisdom
of the revealed text, but also the wisdom behind creation, and to explain the existence of
human and natural evil. The Ashʿaris, who emerged from within the Muʿtazilites, eventually
developed different theories and opposed the Muʿtazilites, who were later declared as here-
tics. The method of reasoning ‘from the observable to the unobservable’ seems to have been
reversed. In order to account for divine power and omnipotence, the Ashʿarites maintained
that everything including morality is contingent. They denied the role of reason in deriving
moral knowledge, and the existence of universal moral principles that can be known by rea-
son. Justice lost its meaning and became nothing more than obedience to divine commands
and prohibitions, as understood by those who acquired religious knowledge and status that
permitted them to interpret those commands and claim the knowledge of the objectives of
divine law. The Muʿtazilite might not have been successful in solving ‘the problem of evil’,
which remains a great challenge to theologians in other traditions as well but neither did the
Ashʿarites, who thought that they solved it by scarifying the concept of justice and goodness
and the concept of common morality and rational obligation.
Nevertheless, the Ashʿarites could not deny the fact that people from different traditions
do condemn injustice and lying, yet what they denied was applying human reason to the di-
vine realm. They eradicated the mere possibility of humans having moral norms and rational
principles in order to protect the divine from any possible attempts of humans reasoning His
actions. They condemned any idea that could have possibly led to what they considered a blas-
phemous compromise of divine omnipotence and absolute freedom. Thus they explained the
fact that people from different religions and traditions condemn injustice and lying because of
mere habits and customs that have nothing to do with reason, rationality and moral knowl-
edge. Replacing common morality with ʿādāt (habits and customs) and calling people who
have certain norms ahl al-ʿādāt and the one who claims to act upon the dictates of ʿaql (reason)
to actually be acting according to his ․tabʿ (natural inclinations), was to cut the way on reason-
ing that might apply human principle and judge divine action as unjust or evil. Evil became
nothing but disobedience to divine commands. Thus, moral values shared by human beings
were attributed to the concept of habits (ʿādāt) and al-ʿaql, as the instrument of moral judge-
ment, was displaced by al-t․abʿ, or the appetitive self, as also mentioned by Sherman Jackson.34
The concept of al-mas․lah․a (well-being or public interest) articulated by earlier scholars
was now based on what they considered to be a divinely ordained mas․lah․a and the true ma-
qās․id (objectives) were now conceived to be divine. But instead of checking and assessing
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Mariam al-Attar
previously derived legal judgments in light of those objectives or ultimate values (that they
claimed to have been derived from the scripture), these divine purposes were actually used
to confirm and support previously derived legal judgments, which were often based on con-
siderations other than clear divine injunctions and sometimes on certain injunctions that
actually fitted the purposes and the worldview of those classical scholars and reflected the
socio-political conventions of the time.
4 Late Ashʿarites and divine purposes ethics

Abū Hamid al-Ghazali (d. 505/1111) has often been considered a representative of extreme
divine voluntarism. 35 Also, in his book The Spirit of Islamic Law, Bernard Weiss argued that
the theory of al-Maqās․id is a DCT or indeed that it is fully compatible with Ethical Volun-
tarism, saying that ‘the voluntarism and the intentionalism of Muslim jurists are opposite
sides of the same coin. To say that the law is determined by the divine will is to say that
law is determined by the divine intent’. 36 Whereas Anver Emon, in his book Islamic Natural
Law Theories, considers the theory of al-maqās․id to be a form of NLT, a ‘soft natural law’
theory as opposed to the ‘hard natural law’ of the Muʿtazilite. To my mind, neither of the
two views is convincing. Considering the maqās․id theory fully compatible with Ethical
Voluntarism seems to ignore the similarities between the concept of al-mas․lah․a as held by
the early jurists who did not subscribe to the Ashʿarite moral theology and the concept of
al-mas․lah․a that was linked to the purposes of law by the late Ashʿarites. Whereas considering
it a kind of NLT requires a clear definition of what one means by natural law. Emon seems
to consider a n atural law where ‘nature is the link between the divine will and human
reason’ and explains that ‘because the empirical world is infused with a divine, purposeful
deliberate good, our reasoned conclusions about the empirical good are infused with nor-
mative content stemming from the divine creative will. In other words, the “is” becomes
the “ought”’.37 The rather ambiguous concept of ‘fusing fact and value’ permeates his book.
So, for example, he considers that the term mas․lah․a is applied by al-Ghazali to fuse fact and
value in nature. It seems that any attempt to classify the theory of al-maqās․id depends on
one’s understanding of what is meant by natural law and what is meant by DCT or Ethical
Voluntarism.
The early Ashʿarites did not approve of ratiocination (taʿlı̄l) and that is clear from the early
discussions in kalām. Ratiocination of divine judgment seem to have been compared to the
ratiocination of His action, which was problematic as it could lead to detestable conclusions,
that would compromise divine free will and omnipotence. Any attempt to make sense of the
world and explain how and why things happen in a certain way rather than another relies
on the concept of causality, but there is no reason that explains divine actions in this world
and thus no necessary relation between causes and effects. Ratiocination of divine actions
and judgments was also the concern of the late Ashʿarites like al-Ghazali, who accepted the
occasionalist theory of causation. They disagreed on that with the Muʿtazilites, just as they
disagreed on the issue of rational knowledge of good and evil. Al-Ghazali disputed causation
in ethics and denied that there are any reasons behind divine commands and prohibitions,
just as he disputed causation in the natural world and adopted the doctrine of occasional-
ism. As noted by many scholars, he based the theory of mas․lah․a and maqās․id on scripture
by following inductive reasoning, whereas the Muʿtazilite arrived at similar conclusion by
following a deductive way of reasoning. From the divine attribute of wisdom and goodness
they would deduce that His rules and regulations must benefit His creation. Al-Ghazali’s in-
duction of general objectives of law from particular rulings, in principle, could have resulted
106
in anything, since God is free to do and command anything, which is the essence of Ashʿarite
voluntarism. Nevertheless, the doctrine of al-māqs․id (objectives) was based upon the pre-
sumption that divine judgments are founded. Divine judgments, according to the theory
of al-maqās․id are to be understood within their framework and ultimate purposes of the
Shariʿah, which is preserving certain necessities that have traditionally included religion, life,
intellect, progeny and property, often called al-kulliyāt al-khamsa (the five universal princi-
ples). By introducing the term munāsib (appropriate) to describe the relationship between
individual rulings and the maqās․id, al-Ghazā lı̄ maintained that the objectives of the law
promulgate human well-being, while avoiding the Muʿtazilite assertion that the law had to
serve human well-being. However, it is appropriate to mention here that the meaning and
the understanding of the scriptural rulings that provided the data for al-Ghazālı̄ inductive
reasoning and the formulation of those necessities or objectives themselves reflected the epis-
temological framework of the time and a specific interpretation of the injunctions found in
the Qurʾan and Sunnah.
Nevertheless, one could argue that al-Ghazālı̄ could not have started his induction pro-
cess without a working hypothesis. Whether that working hypothesis was based upon his
observation of nature and the wonders of creation that led him to believe in the teleology
in the natural world that was somehow related to teleology in revelation as recently argued
by El-Shamsy38 or whether that was based on his familiarity with the previous work on
mas․lah
․a, it remains certain that he approached the text with a working hypothesis derived
from the legal tradition that endorsed the belief that law serves human well-being and that
was definitely established by the Muʿtazilites. It is precisely that working hypothesis that is
based on reason and previous knowledge that he obtained from fiqh. Therefore, although the
maqās․id theorists claim that the objectives were derived by induction from the texts, those
were ultimately derived from their previous acquaintance with the principle of taʿlil and its
rational basis.
Al-Ghazālı̄’s theory is a ‘Divine Purposes Theory’, yet it remains closer to the ‘Common
Morality Theory’ than to a DCT, since he must have had in mind a working hypothesis to
start with, and that working hypothesis is necessarily derived from the common morality
which is shared with other people regardless of their claim to the opposite. The five maqās․id
that are the ultimate ends of the Shariʿah are values that any society or legal tradition would
uphold if it seeks to preserve the society and aims at a flourishing community. Al-Ghazālı̄
stated that
it is impossible that any society (milla min al-milal) or any legal system (shariʿah min al-
sharāʾiʿ) which aims at the benefit of creation (is․lah․ al-khalq) would not include prohi-
bitions against neglect of and restraint from these five values, and that is why all legal
systems prohibit disbelief (kufr), homicide, adultery, theft and intoxication.39
I have argued elsewhere40 that the Ashʿarite theory of good and evil is definitely consistent
with the rest of the Ashʿari theories of kalām, but it is not indispensable in the principles of
jurisprudence (us․ūl al-fiqh). Admitting and acknowledging human agency in formulating and
establishing the ‘universal necessities’ or maqās․id calls for a non-Ashʿarite ethical foundation
that would open the door for ethical reflection on theoretical and practical matters from var-
ious perspectives, taking into consideration the advancement of human knowledge. After all,
as human beings, we are subject to the laws of humanity that are etched into our very
being – these laws are embedded in our cognition and consciousness, and are as stable
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Mariam al-Attar
and unwavering as the laws of mathematics or the logic that defines material reality.
These are laws of rational elements that allow us to have a shared language about justice,
ethics, values, happiness, misery and beauty.41
Development of fiqh is related to development of kalām, and kalām needs to engage with sci-
ence and philosophy in order to move beyond the doctrines developed by thinkers who were
genuine and innovative, but at the same time operated within the framework of a world view
and epistemology that is quite different from ours. The big questions that they asked should
be revisited and the assumptions that they took for granted should be discussed in light of
current epistemological position. That might lead to a different interpretation of the relation
between human beings and the divine and a fresh reading of the revealed words.
The majority of the ʿulamaʾ held that since the realization of the objectives (maqās․id) of
the Shariʿah necessitates identification of the cause rational of the ah․kām, it becomes our duty
to discover these in order to be able to pursue the general objectives of the Lawgiver,42 and
according to all the jurisprudential schools the purpose of the Shariʿah is to serve the best
interests of human beings (tah ․qı̄q mas․ālih․ al-ʿibād). Put differently, the objective of the law is
not to apply technicalities regardless of their consequences, but to achieve the ultimate moral
and ethical objectives that represent the essence of Godliness on this earth.43
In order to achieve the ultimate moral objectives, some rules that have an instrumental
rather than inherent value need to be assessed. The objectives (maqās․id) of the Shariʿah have
been linked to the individual rulings found in the Qurʾan and the Sunnah; and those rulings
are thus seen to have instrumental value, while the aims or the objectives have an inherent
value. Since the maqās․id were allegedly established by following the induction process, they
could not have been used in evaluating the rulings from which they have been derived. Im-
portant Qurʾanic values like justice, benevolence and compassion that are not related to par-
ticular rules seem to have been disregarded by most of the religious scholars ( fuqahāʾ). Justice,
benevolence and other values that have inherent rather than instrumental worth are also
Qurʾanic principles that presuppose our ability to understand them and make sense of them.
However, as we have seen, justice and goodness according to the Ashʿarite moral theology
meant nothing but obedience to commands. To my mind, the theory of al-maqās․id, which
is an ethical theory that can be used to assess different legal rules, cannot be used unless we
first establish it on a non-Ashʿarite basis. Only then might we become able to understand the
values and objectives that have inherent value and distinguish them from others that have
only instrumental value.
Muʿtaz al-Khatib noted that the essence and the foundation of ratiocination (taʿlı̄l) is the
principle of rational knowledge of good and evil. He wonders how the maqās․id theory, which
is essentially built on the assumption of the validity of taʿlı̄l, can be validated while rejecting
its rational foundation.44 Maqās․id al-Shariʿah were never used to derive or assess existing rules,
as already mentioned. Thus, one is left to wonder whether what is known as fiqh al-maqās․id
as advocated today is actually capable of introducing any change. Al-Khatib suggested a dis-
cipline that could be called fiqh al-wasāʾil that would evaluate the appropriateness of the rules
that have an instrumental value and their value rests on their ability to properly serve the
objectives or the ends. The distinction between means and ends is significant to the devel-
opment of normative knowledge, and so is the distinction between those rules or judgments
that are related to worship and those that intend to regulate social and political life. Al-Khatib
noted that classical scholars sometimes confused means and ends. He suggests a criterion that
seems to satisfy the fiqhı̄ methodology. According to this criterion, some rules or judgments
that are explicitly mentioned in the texts could be considered contingent, as they only have
108
instrumental value. Building upon the scholarship of significant classical scholars of maqās․id,
like al-Shatibi, al-Qarafi and al-ʿIzz b. ʿAbd al-Salam, he concludes that rules that have instru-
mental value can be changed. Distinguishing between the immutable ends that have inherent
value and the changeable means is proposed as a proper methodology for fiqhı̄ ijtihād that could
be called the theory of means (al-Wasāʾil) as distinguished from the theory of ends (al-Maqās․id).
Al-Khatib provides four restrictions (d․awābit․) or conditions that should be met in order to
consider a mean changeable. The two most important conditions are, first, that the mean can
be replaced by a mean that also serves the purpose in the same way or better, and, second, that
the rule or a judgment which is considered to be a mean rather than an end or aim is related to
a certain tradition (ʿurf ), specific situation or time.45 To my mind, this suggests that not every
rule articulated by jurists, even when based on textual evidence, is related to the ultimate aims
of the Shariʿah, and that definitely applies to rules that discriminate against women and against
non-Muslims. A theory like this seems to build upon the classical fiqhı̄ scholarship and re-
mains faithful to the fiqhı̄ methodology, while possibly allowing for radical change. However,
al-Tahir b. ʿAshur, the Tunisian scholar who adopted the maqās․id approach and advocated
using the approach for reforming Islamic law, saw no contradiction in holding the principle of
equality as an absolute value and confirming judgments and rules according to which men are
granted superior positions over women and Muslims over non-Muslims. He appeals to what
he calls nature (al-jubbulla) to get out of the contradiction. Accordingly, woman is not equal to
man because of her nature and not because of legislation,46 as law confirms the status quo and
does not establish reality. Thus the universal values that he upholds become formal and can
be used to support different and contradictory positions. Even fiqh al-wasāʾil, proposed by al-
Khatib, will not lead to reform unless articulated by people who have a good sense of justice
and who would take the demands for reform seriously.
One cannot be sure whether any of those theories discussed above would provide us with
the best answers and solutions that are dearly needed in Muslim communities. After all, the
Shiʿi al-ʿAdliyya have endorsed the Muʿtazilite view and acknowledged the role of reason
in morality. Yet that did not result in any progress in their fiqh because, in deriving their
rules, reason and common morality were not given any role, as recently argued by Ali Reza
Bhojani. So, despite the Shiʿi adoption of the same meta-ethical position as the Muʿtazilites,
‘independent judgements of rational morality play little or no role in the actual inference of
Shariʿah norms within mainstream contemporary Shiʿı̄ thought’,47 ‘A legal positivism, theo-
retically associated with the Ashʿarı̄ meta-ethics, in the sense that considerations of legal va-
lidity are detached from moral worth, appears as prevalent in Shiʿı̄ fiqh as it does in any other
Muslim legal school’.48 Thus, acknowledging human reason and its ability to know good and
bad and right and wrong does not necessitate a morally informed law.
Nevertheless, the ethical theory of maqās․id, as I have argued above, remains a promising
theory that is closer to common morality than Divine Command Theory. And a theory that
is closer to common or objective morality can definitely provide a more inclusivist foun-
dation for inter-faith and intra-faith dialogue, as well as for more understanding between
religious and non-religious people living in the same communities, sharing similar socio-
political and economic concerns.
Notes
1 J. Hare, God’s Command (London: Oxford University Press, 2015).
2 Anver M. Emon, Mathew Levering and D. Novak, Natural Law: A Jewish, Christian, and Islamic
Trialogue (London: Oxford University Press, 2014).
3 S. Neiburg and R. Duval, Encyclopedia of Ethics (New York: Facts on File Inc., 1999).
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Mariam al-Attar
4 M. Illathuparampil, ‘Normativity of Nature’, in Is Nature Ever Evil? Religion, Science and Value, ed.
W. B. Drees (London and New York: Routledge, 2003), 225–34.
5 K. Haakonssen, ‘Natural Law’, in Encyclopedia of Ethics, ed. L. C. Becker and C. B. Becker (New
York and London: Gerland Publishing, 1992), 884–90.
6 H. P. Kainz, Natural Law: An Introduction and Re-examination (Chicago: Open Court, 2004).
7 M. Illathuparampil, ‘Normativity of Nature’.
8 A. Ezzati, Islam and Natural Law (London: ICAS Press, 2002).
9 Ibid., 25.
10 Ibid., 27.
11 K. Haakonssen, ‘Natural Law’.
12 G. F. Hourani, ‘Divine Justice and Human Reason in Muʿtazilite Ethical Theology’, Ethics in Islam,
ed. R. Hovannisian (Malibu, CA: Undena Publications, 1985), 58–9.
13 R. M. Frank, ‘Moral Obligation in Classical Muslim Theology’, Journal of Religious Ethics (1983),
186–203.
14 Biographical sources vary on his death date. Some date it at the beginning of the third century,
others date it in 225 AH and still others date it 279 AH.
15 A. al-Raysuni, Al-Tajdid al-Usuli: Nahwa Siyagha Tajdidiyya li-ʿIlm Usul al-Fiqh (Herndon, VA: Inter-
national Institute of Islamic Thought, 2014), 36.
16 Ibid., 41.
17 S. al-Nashshar, Nashʾat al-Fikr al-Falsafi fi al-Islam, vol. 1, 9th edition (Cairo: Dar al-Maʿarif,
1995), 318.
18 Ibid., 378.
19 Ibid., 395.
20 Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press,
2005).
21 Ahmed El-Shamsy, The Canonization of Islamic Law – A Social and Intellectual History (Cambridge:
Cambridge University Press, 2013), 44.
22 Ibid.
23 Wael Hallaq, ‘Was al-Shafiʿi the Master Architect of Islamic Jurisprudence?’ International Journal of
Middle East Studies 25, no. 4 (1993), 587–605.
24 K. A. Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (New York: State Univer-
sity of New York, 1995), 17.
25 Ibid., 18–21.
26 John Kelsay, ‘Divine Command Ethics in Early Islam: Al-Shafi’i and the Problem of Guidance’,
The Journal of Religious Ethics 22, no. 1 (1994), 101–26.
27 C. Brockelmann and L. Gardet, ‘al-Djuwaynı̄’, in Encyclopaedia of Islam, ed. P. Bearman, T. Bian-
quis, C. Bosworth, E. Donzel and W. Heinrichs, 2nd edn (Leiden: Brill, 1960–2005).
28 A. J. al-Asadabadi, Al-Mughni fi Abwab al-Tawhid wa-l-ʿadl, al-Iradah, ed. Mahmud Qasim, vol. 6
(Cairo: Ministry of Public Culture & Education, n.d.) 331.
29 Ibid., 384.
30 F. Rahman, ‘Law and Ethics in Islam’, in Ethics in Islam – Giorgio Levi Della Vida Ninth Conference,
ed. R. Hovannisian (Malibu, CA: Undena Publications, 1985), 3–17.
31 M. Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003), 49.
32 R. M. Frank, ‘Moral Obligation in Classical Muslim Theology’, Journal of Religious Ethics 11, no. 2
(1983), 186–203.
33 Ibid.
34 Sherman Jackson, ‘The Alchemy of Domination? Some Ashʿarite Responses to Muʿtazilite Ethics’,
International Journal of Middle East Studies 31, no. 2 (1999), 158–201.
35 G. F. Hourani, ‘Divine Justice and Human Reason in Muʿtazilite Ethical Theology’, 59; D. Brown,
‘Islamic Ethics in Comparative Perspective’, The Muslim World 89, no. 2 (1999), 181–92; O. Lea-
man, A Brief Introduction to Islamic Philosophy (Hoboken, NJ: Blackwell, 1999), 108.
36 B. G. Weiss, The Spirit of Islamic Law (Athens, GA: University of Georgia Press, 1998), 56.
37 A. E. Emon, Islamic Natural Law Theories (London: Oxford University Press, 2010), 21–2.
38 A. El-Shamsy, ‘Al-Ghazali’s Teleology and the Galenic Tradition: Reading the Wisdom in God’s
Creation’, in Islam and Rationality: The Impact of al-Ghazali. Papers collected on his 900th Anniversary,
ed. F. Griffel, vol. 2 (Leiden: Brill, 2015), 90–112.
110
39 A. H. al-Ghazali, Al-Mustasfa min ʿIlm al-Usul, vol. 1 (Beirut: Dar Sader, 1995), 258.
40 Mariam al-Attar, ‘Meta-ethics: A Quest for Epistemological Basis of Morality in Classical Islamic
Thought’, Journal of Islamic Ethics (forthcoming).
41 Khaled Abou El-Fadl, ‘The Epistemology of the Truth in Modern Islam’, Philosophy and Social Crit-
icism (2015), 473–86.
42 Kamali, Principles of Islamic Jurisprudence, 49.
43 Khaled Abou El Fadl, The Great Theft, Wrestling Islam from the Extremists (New York: Harper Col-
lins, 2007).
4 4 Muʿtaz al-Khatib, ‘Al-Maqasid wa-ʿIlm al-Usul, Qiraʾah fi al-Nasaq al-Maʿrifi’, Maqasid al-Shariʿah
wa-l-Siyaq al-Kawni al-Muʿasir (Ribat: Al-Rabita al-Muhammadiyya lil-ʿulamaʾ, 2013) 41–58.
45 Muʿtaz al-Khatib, ‘Manhajiyat al-Maqasid wa-l-Wasaʾil wa-Atharuha fi al-Ijtihad al-Fiqhi’, Majal-
lat Islamiyyat al-Maʿrifa (2013), 43–78.
46 M. A. ʿAshour, Maqasid al-Shariʿa al-Islamiyya (Amman, Jordan: Dar al-Nafaʾis, 2001), 332–4.
47 A. R. Bhojani, ‘Moral Rationalism and Independent Rationality as a Source of Shariʿah in Shiʿi
Usul al-fiqh: In Search of an Adliyya reading of Shariʿah’. (Unpublished dissertation, Durham Uni-
versity, 2013).
48 Ibid., 10.

El-Fadl, Khaled Abou. ‘The Epistemology of the Truth in Modern Islam’. Philosophy and Social Criticism
41, nos 4–5 (2015): 473–86.
Attar, M. al-. Islamic Ethics: Divine Command Theory in Arabo-Islamic Thought (London: Routledge,
2010).
Emon, Anver E. Islamic Natural Law Theories (London: Oxford University Press, 2010).
Frank, Richard M. ‘Moral Obligation in Classical Muslim Theology’. Journal of Religious Ethics 11,
no. 2 (1983): 186–203.
Griffel, Frank. ‘The Harmony of Natural Law and Shariʿa in Islamic Theology’. In Shariʿa: Islamic Law
in the Contemporary Context, ed. Abbas Amanat and Frank Griffel (Stanford, CA: Stanford Univer-
sity Press, 2007), 39–61.
Hare, John. God’s Command (London: Oxford University Press, 2015).
Hourani, George F. ‘Divine Justice and Human Reason in Muʿtazilite Ethical Theology’. Ethics in
Islam (Malibu, CA: Undena Publications, 1985), 73–83.
Hourani, George F. Reason and Tradition in Islamic Ethics (London: Cambridge University Press, 1985).
Jackson, Sherman. ‘The Alchemy of Domination? Some Asharite Responses to Mutazilite Ethics’.
International Journal of Middle East Studies 31, no. 2 (1999): 158–201.
Reinhart, Kevin A. Before Revelation: The Boundaries of Muslim Moral Thought (New York: State Uni-
versity of New York, 1995).
111
5
Islamic law and bioethics*
Ayman Shabana
Bioethics is a relatively new term that emerged during the second half of the 20th cen-
tury to signify moral reflection and reasoning in the realm of the life sciences. With the
unprecedented advances in biomedical technology many hitherto science fiction fantasies
have been turned into real and readily available solutions. Examples include: life-sustaining
technologies such as kidney dialysis, organ transplantation, and artificial ventilation; assisted
reproductive methods such as artificial insemination, in vitro fertilization, and surrogacy ar-
rangements; cosmetic surgeries; and, most recently, genetic testing as well as genome map-
ping. As much as these technologies have enhanced human life in immeasurable ways, they
have also raised serious ethical questions. Moreover, earlier precedents involving abuses of
scientific research in Europe during the Second World War and subsequently in the United
States called for clearer and tighter ethical guidelines for the conduct of biomedical research
in order to avoid similar mistakes, which have seriously tarnished the image of scientific
research and the reputation of the scientific community. Since biomedical research has the
potential of causing irreversible damage to human subjects and even to human life on this
planet, bioethics was initially envisioned as a science of survival to guard against inadvertent
or adverse effects of irresponsible scientific experimentation.1
Over the past few decades bioethics has developed as an interdisciplinary field that draws
on insights from the cross-section of the life sciences, humanities and social sciences. In terms
of disciplinary pedigree, bioethics extends the well-established field of medical ethics which
can be traced back to the emergence of medicine as an organized profession. Bioethics is
occasionally used as the synonym of medical ethics, although the latter tends to focus more
narrowly on healthcare and medical practice.2 In its broadest conceptualization, however,
bioethics includes also, in addition to medical ethics, ethical reflection on the application
of biomedical technology as well as the impact of modern technology and lifestyles on the
natural environment. Moreover, bioethics, as a type of applied ethics, builds on the classical
field of moral philosophy from the Greek tradition into the modern period.
Bioethical deliberations often involve the interface of religion, law, and ethics and that
is why they commonly entail legal, theological, and moral dimensions. Even when a proce-
dure is considered legitimate from the purely legal perspective, it may remain questionable
from the theological or ethical perspective. For example, the debate on abortion, especially
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Islamic law and bioethics
in countries where it is not outlawed, shows clearly that legal sanction does not necessarily
rule out religious or moral concerns. From another perspective some researchers argue that
criminalization of practices such as abortion or assisted dying may reveal a closer connection
between law and religion than is usually admitted, especially in modern, largely secular,
legal systems. Within the Islamic context, ethical thought emerged and developed in light of
Islam’s foundational sources, the Qurʾan and the Prophetic Sunnah. Over time the Islamic
normative tradition comprised various types of systematic elaborations of Islamic ethics as
reflected in fields such as theology, law, mysticism, philosophy, and literature. 3 Contempo-
rary (bio)ethical deliberations in the Muslim context build on these diverse resources of the
Islamic normative tradition and reflect the effort to understand and actualize Islamic moral-
ity with regard to bioethical questions and dilemmas.4
In particular, the relationship between Islamic law and ethics has usually been emphasized
to the extent that they are occasionally identified as one integrated system.5 Although the
standard definition of Shariʿah often highlights purely legal enactments, the term, due to its
emblematic connection with divine revelation, usually evokes special moral and theological
significance.6 This, in turn, points out the difficulty of singling out Islamic law apart from
these moral and theological dimensions. On the other hand, the important distinction be-
tween Shariʿah, as an ideal divine system, and fiqh as a set of applied rules derived by jurists
can illustrate the overlap and even confusion between Islamic law and ethics. While Shariʿah
is conceived as an ethical-legal system that consists primarily in a divine moral vision for
human conduct, human juristic approximation of this vision remains, like all types of human
efforts, susceptible to error. Therefore while Islamic law, at the ideal Shariʿah level, cannot be
conceived without its underlying moral vision, Islamic law, at the practical fiqh-level, can be
said to have either fulfilled or overlooked such vision. This chapter examines the relationship
between bioethics and the broader conceptualization of Islamic law under its Arabic coun-
terpart and historically loaded term of Shariʿah. It will start by exploring some illustrative ex-
amples of premodern juristic discussions concerning medical questions and will then proceed
to examine modern juristic deliberations on bioethical dilemmas.
1 Juristic discourses on medical issues

Considering the comprehensive scope of the Islamic legal corpus, which includes ethical-
legal assessment of the acts undertaken by legally competent individuals pertaining to all
aspects of their lives, one would expect to find juristic discussions on a wide range of ques-
tions that fall under the scope of medical ethics or bioethics. Despite occasional reservations
and scepticism on the validity, utility, or efficiency of medicine, it was held in high esteem in
the Islamic tradition and medical practice was considered a collective duty ( fard․ kifāya), due
to the great need for it both at the individual and societal levels.7 More particularly, it was
deemed essential for the preservation of life, which is considered one of the five necessary
values constituting the higher objectives of Shariʿah, together with religion, intellect, prog-
eny, and property.8
Analogies were often made between medicine and sharʿ. While the former aims to ensure
the well-being of the body, the latter aims to ensure the spiritual well-being of the believer both
in this life and in the hereafter.9 Arabic terms for illness and healing occur in the Qurʾan both
in the physical as well as spiritual senses and the Qurʾan itself is referred to as a source of heal-
ing (Q. 26:80; 17:82). Similarly the Prophetic Sunnah includes numerous references to med-
ical issues to the extent that standard collections of hadith reports include chapters dedicated
to medicine (al-t․ibb) as well as endorsement of specific therapeutic practices (tadāwı̄). These
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Ayman Shabana
scriptural references came to form the substance of a sizeable body of literature known as Pro-
phetic medicine (al-t․ibb al-nabawı̄), which also reflects pre-Islamic Arabian healing practices.10
Together with this Prophetic medical tradition, another philosophical medical tradition devel-
oped after the classical Greek tradition. These two parallel traditions have existed side by side
and their interaction is often highlighted in connection with the concept of Islamic medicine.
Examples of juristic discourses on medical issues include the debate on legal liability in
medical practice and the extent to which a medical practitioner (e.g. physician, veterinarian,
circumciser, or cupping specialist) would be held accountable for injuries resulting from med-
ication errors. The discussion revolves around a report attributed to the Prophet in which he
notes: ‘whoever practices medicine without being known as a competent practitioner shall
be held accountable for any injury that he may cause’.11 Medical practice is pursued on the as-
sumption that it is undertaken for the ultimate purpose of achieving the benefit of the patient.
It may entail invasive procedures which, in the process, could potentially compromise the
sanctity (h․urma) of the human body and consequently violate its inherent dignity (karāma).
The question that the jurists debated, therefore, was the extent to which these two consid-
erations could be reconciled: achieving the patient’s benefit without compromising human
dignity or the sanctity of the human body.
Jurists of the various schools developed guidelines to govern and regulate liability for
medical errors as well as underlying grounds for applicable penalties. Following the Pro-
phetic report cited above, the majority of jurists argued that a competent physician should
not be liable for injuries resulting from medical errors but they disagreed on the grounds for
such ruling.12 For example, the Hanafis held that absence of liability is predicated on the fact
that medical practice is a social necessity which is indispensable for the well-being of society.
Holding physicians responsible for inadvertent errors may eventually discourage people from
pursuing this profession, which in turn would constitute a greater harm at the collective
level. At a deeper level, this social necessity is recognized by Shariʿah and it forms the basis
for the Lawgiver’s permission for medical professionals to practise medicine and, if necessary,
violate the original dignity of the human body in order to achieve a higher benefit. Another
reason that the Hanafis gave is the consent of the patient and/or his family. According to the
Hanafis, therefore, both the patient’s consent as well as the social need for medicine remove
legal liability.13
The Shafiʿis and Hanbalis agree with the Hanafis that negation of liability is predicated on
the consent of the patient and/or his family but they add also the intent of the medical prac-
titioner. They argue that the practitioner’s conduct should be driven by the intent to benefit
the patient not to harm him. Investigation of such intent is subject to relevant professional
standards known among the experienced practitioners. The Malikis argue that negation of
liability is based primarily on the ruler’s permission for the practitioner to practise the profes-
sion; and secondarily on the permission of the patient for the practitioner to examine him.14
The combination of these two types of permission exonerates the medical practitioner as long
as his conduct is governed by the established standards of the profession. More particularly,
established professional standards would determine the extent to which a given injury is a
result of a common inadvertent error or an uncommon excessive ( fāh․ish) one. While the
former may be tolerated as a type of acceptable professional error, the latter should be subject
to criminal investigation.
Another example of juristic discourses on medical issues is the debate on the permissibility
of pursuing medical treatment. The juristic debate revolves around the effort to reconcile
scriptural references, which seem to point in different directions. While some Prophetic re-
ports, including those recording Prophetic precedents, indicate the permissibility and even
114
necessity of seeking medical treatment, others emphasize the importance of trusting God
and putting one’s faith in His ability to heal diseases without any intervening causes. For
example, reports advocating the pursuit of medical treatment include: ‘God did not send a
disease except that He sent along with it a suitable cure’.15 On the other hand, other reports
advocating total reliance on God may imply avoidance of medical treatment.16 In light of
these references, five main juristic views were developed concerning the question of medi-
cal treatment: recommendation, obligation, permissibility, permissibility with preference for
avoiding medical treatment, and impermissibility.
The first view, recommendation of medical treatment, is adopted by the majority of
Shafiʿis and some Hanbalis on the basis of several Prophetic reports indicating the importance
of seeking medical treatment and also on the basis of actual precedents showing the Prophet’s
use of medical treatment. In support of this view the Hanbali jurist Ibn al-Qayyim argues
that seeking medical treatment confirms the connection between causes and their ensuing
effects, which does not necessarily conflict with putting one’s faith in God. Belief in Divine
omnipotence calls for respecting, rather than neglecting, the causes that God tied to certain
effects.17 The second view, obligation of medical treatment, is adopted by some Hanafis and
some Hanbalis, especially if the efficacy of treatment could be ascertained. In this case, ac-
cording to this view, neglecting medical treatment amounts to intentionally harming or even
killing oneself, which is explicitly prohibited in the Qurʾan. The third view is adopted by the
majority of Hanafis, the Malikis, and some Hanbalis. According to this view, seeking med-
ical treatment is permissible as long as one believes that healing can only be caused by God.
The fourth view is adopted by the majority of Hanbalis and some Shafiʿis. According to this
view, seeking medical treatment is permissible but avoiding it may be preferable because such
attitude demonstrates one’s faith in God’s healing power.18 The fifth attitude advocating the
impermissibility of medical treatment is attributed to some mystics, who argue that seeking
medical treatment conflicts with one’s faith in God and His healing power.19
The bulk of available evidence and careful examination of the scattered reports on this is-
sue seem to endorse the attitude in favour of pursuing medical treatment. This attitude seems
to be compatible with the spirit of the Shariʿah and its ultimate objectives, which include
preservation of life. Various enactments such as those pertaining to personal hygiene, reli-
gious concessions due to illness, and general legal maxims on removal of harm also support
this attitude.20 The question of the legal status of medical treatment has been one of the most
important questions for Islamic medical ethics. Not only does it reveal early engagement of
Muslim jurists with this issue but it continues to be relevant for the assessment of various
bioethical questions in the modern period ranging from the permissibility of organ donation
to boundaries of withdrawing or withholding medical treatment in end-of-life situations.
It also reveals the larger theological underpinnings of certain legal discussions pertaining
to medical issues such as the religious significance of illness, the causal connection between
treatment and cure, and also the connection between illness and belief in destiny.21
2 Islamic law and conceptualization of modern bioethics

The modern bioethical discourse that emerged and developed in the West since the second
half of the 20th century in response to various socio-cultural, legal, and technical factors was
able to achieve global dominance through its integration in the modern medical curriculum,
which spread all over the world, including Muslim-majority countries. This discourse is essen-
tially secular and draws on Western philosophical sources. Apart from this dominant Western
bioethical discourse, normative religious discussions emerged in Muslim-majority countries,
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Ayman Shabana
largely coinciding with the importation of modern biomedical applications. These discussions,
however, have often been perceived as reacting to the dominant Western discourse, which
seems to set the agenda and define the terms of discussion.22 These Muslim discussions come
in different shapes and forms ranging from direct quotations from Islam’s scriptural sources
to systematic reflections in light of the various resources of the Islamic normative tradition.
Considering the classical role of Islamic law in the definition of Islamic ethics, if not Islam
itself, as well as the comprehensive scope of Islamic legal rules, bioethics in the Muslim context
has largely consisted in ethical-legal assessment.23 The term al-fiqh ․tibbı̄ is sometimes used to
signify juristic deliberations on biomedical issues, which reveals the unique role of the Islamic
legal framework for the formulation of bioethics in the Muslim world.24 These deliberations
reveal the effort to identify related discussions in the classical legal corpus for the extrapolation
of appropriate rulings (ah․kām) concerning modern bioethical questions.25 Due to the fact that
most bioethical questions involve novel procedures, which lack exact precedents in the Islamic
legal tradition, one of the most important sources for the study of bioethics in the Muslim
world has been the fatwa literature.26 The past few decades witnessed a significant increase
in the volume of fatwas dealing with bioethical issues, which has been generated in response
to increasing demand for answers to queries associated with the steady evolution of modern
technology and its various biomedical applications.27 In addition to these individual fatwas, an-
other important resource has been institutional collective fatwas by national and transnational
organizations. These institutional fatwas are often issued after thorough examination of the
technical as well as normative dimensions of the issues in question and they reflect a growing
tendency emphasizing collaboration between technical experts and religious authorities.28
This synergy has inspired a new form of collective Ijtihād, which is distinguished from
the standard (individual) form that was discussed and practised by Muslim jurists through-
out the course of the Islamic legal tradition. The emergence of the term ‘collective ijtihād’
(ijtihād jamāʿı̄) coincided with the rise and development of national and transnational juristic
councils, especially during the second half of the 20th century.29 In addition to national
fatwa-issuing bodies, some of the most important transnational institutions for biomedical
issues have been the Islamic Fiqh Council of the Muslim World League (based in Mecca,
established in 1978), the International Islamic Fiqh Academy of the Organization of Islamic
Cooperation (based in Jeddah, established in 1981), and the Islamic Organization for Medical
Sciences (based in Kuwait, established in 1984). The scholarly conferences and meetings that
these institutions organized and the literature that was generated in the process constitutes
an indispensable resource for religious-moral decisions concerning biomedical issues. This
growing body of normative opinions and deliberations within the Muslim context has drawn
the interest of scholars across the life sciences, humanities, and social sciences. For example,
medical anthropologists observe that in the absence of binding legislation, religious-moral
guidance in the form of authoritative fatwas by prominent jurists is often used to fill legisla-
tive gaps.30 The following section will explore a sample of biomedical issues that shows the
role of Islamic law (particularly as constructed by these juristic institutions) in the formula-
tion of Islamic normative rulings on some important bioethical issues.
3 Issues in Islamic bioethics

The common perception of the juristic task (whether individual or collective) needed for
the investigation of novel questions (nawāzil, sing. nāzila) – lacking explicit reference in the
foundational sources or exact precedent in the classical legal corpus – is that it involves the
process of constructing a new appropriate ruling for such questions. This has been the case,
116
for example, in issues such as post-mortem examination and organ donation. An equally im-
portant task, however, is placing the new ruling/answer within its proper thematic context
as well as the larger Islamic legal framework. Both post-mortem examination (whether done
for educational or forensic purposes) and organ donation raise the risk of violating the in-
herent dignity of the human body. The juristic process involves weighing and balancing this
risk in relation to the expected private as well as public benefit to be procured as a result of
these procedures. The juristic process also involves searching for close precedents or relevant
examples such as premodern discussions on the possibility of cutting a dead body open to
extract a live baby or to extract a valuable item belonging to someone else.
For example, in his fatwa on the permissibility of autopsy, the late Egyptian Mufti and
subsequently Grand Shaykh of al-Azhar Jad al-Haqq ʿAli Jad al-Haqq (d. 1996) reviews ear-
lier fatwas issued during the 20th century, which argue for the permissibility of autopsy on
the basis of expected forensic benefits such as confirming the cause of death or acquitting an
innocent person, which would justify the invasive process of dissecting a dead human body.
On the other hand, undertaking the procedure for educational purposes was subject to debate
among contemporary jurists. Some jurists limit the permissibility of dissection to the classical
cases discussed in the tradition, such as extracting a live baby or a valuable item, and argue
for its impermissibility if undertaken for educational purposes, especially if other alternatives
can be found to satisfy this need such as use of animals instead of actual human bodies. Other
jurists, however, argue for the permissibility of dissection for educational purposes in light
of the expected benefits of furthering scientific knowledge and research, especially when the
identity of the dead person is unknown.31
Similarly, organ donation or transplantation was subject to a great deal of legal as well as
jurisprudential controversy. In general, a distinction is often made between extracting organs
from a dead body (cadaveric organ donation) or a living person. In the former case, many
jurists argue for the permissibility of the process in light of the expected benefit of saving a
human life, especially if permission is given or a will is made by a donor prior to death. In
the absence of such explicit permission either by the donor or his family, some jurists argue
for impermissibility while others argue for permissibility on the basis of necessity, which is
usually the main grounds for undertaking this procedure.
In the case of living organ donation, another distinction is made between indispensable
organs such as the heart and other non-indispensable organs such as kidneys. Donating an
indispensable organ is unanimously prohibited even if the person indicates his permission
because this would be considered to be suicide. With regard to donating a non-indispensable
organ, some jurists argue for impermissibility, regardless whether the donating person indi-
cates permission, even if the extracted organ does not negatively impact the donor’s health
or disrupt the functions of his body on the grounds that extracting a part of a living person
violates the inherent dignity of the human body and that any extracted part of the human
body should be buried. Some jurists also use the argument that one does not own one’s body
and therefore cannot donate part of it. On the other hand, many jurists argue for the permis-
sibility of organ donation provided that due permission is indicated and that the extracted
organ does not negatively impact one’s health on the grounds that necessity overrides prohi-
bition. Moreover, it is argued, what man does not own is his soul and his life, which should
be preserved and protected at all times except in cases of necessity. By contrast, man owns his
physical body and its material parts and can therefore donate any part of it as long as the act
does not involve a greater harm.32 It is important to keep in mind that legal opinions on these
new questions remain subject to revision and further consideration in light of the evolving
scientific knowledge as well as public awareness about them.33
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Ayman Shabana
In examining Muslim discourses on modern biomedical issues it is important to observe

the impact of new medical research on the reconstruction of earlier legal rulings. For exam-
ple, one of the main changes that were introduced into the body of classical Islamic family
law in the modern period is the limitation imposed on the maximum pregnancy period.
Pre-modern jurists differ on the determination of the exact gestation period, mainly due to
lack of a clear textual indication to either the minimum or the maximum period of a viable
pregnancy. The question of the average pregnancy period was one of the important criteria
used by classical jurists to verify the plausibility of filiations claims, especially ones that were
made by widows and divorced women. In general, the minimum period of pregnancy was
not as controversial as the maximum period. Most jurists estimate the minimum period
of pregnancy to be six months. Unlike the minimum period of pregnancy, the maximum
period was subject to a great deal of juristic disagreement. In the juristic tradition, opinions
vary from nine months to an open-ended range. On the other hand, most modern jurists,
basing themselves on modern medical and scientific knowledge, choose a minimum preg-
nancy period of six months and a maximum of nine months. They explain the disagreement
among pre-modern jurists and their accommodation of extended maximum periods of preg-
nancy by unavailability of decisive and accurate medical information and also by reliance on
reported claims of these extended periods. Modern scientific research now considers these
reports of extended pregnancy periods as cases of false pregnancy or pseudocyesis, which has
been confirmed by modern clinical studies. For example, according to the recommendations
of the Islamic Organization for Medical Sciences on this issue, the average pregnancy period
is 280 days or 40 weeks starting from the beginning of the last menstruation cycle preced-
ing pregnancy. In some cases this period may extend for one or two weeks at most, but it is
highly unlikely that a baby can be born alive if delivery occurs in the forty-fifth week.34 Most
personal status laws in Muslim-majority countries have adopted the minimum of six months
and the maximum of one full year to allow for the accommodation of extremely rare cases,
in which pregnancy can last for more than nine months.35
By far some of the important issues that had to be renegotiated in light of new medi-
cal findings as well as modern medical technology are associated with the two themes of
beginning and end of human life. Both of these themes involve several legal and ethical
implications as they touch on a number of critical questions ranging from (im)permissibil-
ity of abortion to new criteria for the definition of death. A central point in the discussions
concerning both the beginning and end of human life has been the issue of the soul (rūh ․).
Reference in the Qurʾan, and to a larger extent in the Sunnah, trace the inception of human
life to the point at which this metaphysical entity merges with or is blown into the human
body at the earliest stages of embryonic development.
According to the mainstream view in the tradition and also in the modern period, this
point is 120 days. Modern embryology detecting signs of life prior to this threshold, how-
ever, has rekindled classical debates surrounding the interpretation of the various scriptural
references on this issue. Similarly, scriptural references to death trace its occurrence to the
process through which the soul is separated from the body. The traditional medical definition
of death was based primarily on cardiopulmonary criteria with several associated external
signs. Modern neurology, however, suggests another definition on the basis of brain stem
functions. One important question that Muslim jurists discuss is the extent to which this new
definition of (brain stem) death can be accepted from the Islamic perspective.
Joint meetings between physicians and life scientists on the one hand and jurists as well
as legal experts on the other were convened in order to discuss the exact beginning and end
of human life in light of new scientific and medical developments. Important meetings were
118
initially sponsored by the Islamic Organization for Medical Sciences, which were followed
by subsequent meetings organized by the two other transnational institutions mentioned
above: the Islamic Fiqh Council and the International Islamic Fiqh Academy. The recom-
mendations and resolutions of these joint deliberations have become important reference
points for moral decision-making on these questions.36
Another area of bioethics that has necessitated reconsideration of established legal rules
is assisted reproduction. Since their introduction into the Muslim world, modern assisted
reproductive technologies (ART) have stirred debates over their potential legal, ethical, and
social implications. Some of the important issues discussed include: the moral status of em-
bryos, gamete donation, cryopreservation of pre-embryos, post-marital or post-mortem con-
ception, artificial insemination, manipulation of oocytes and embryos in vitro, the treatment
of surplus or unwanted embryos, and the commercialization of the human reproductive
function.37
From the normative Islamic perspective, reproduction should be pursued within the
framework of a licit sexual relationship in the form of marriage and most juristic discus-
sions examine the impact of modern reproductive technologies on the marital relationship.
For example, the case of surrogacy illustrates a host of important legal and ethical concerns
concerning authenticity of parental claims, shared parental claims on the basis of genetic or
gestational considerations, and commercial use of reproductive organs. Because surrogacy,
by definition, involves a third party, the attitude of the overwhelming majority of Muslim
scholars has been outright condemnation. In addition to substantive Shariʿah-based argu-
ments about the importance of marriage as the general framework within which human
reproduction should occur, the Muslim ban on third-party involvement in the reproductive
process is the result of successive institutional fatwas, decisions, and recommendations is-
sued by reputed and authoritative organizations, such as those mentioned above, beginning
shortly after the successful birth of the first IVF baby in England in 1978. One of the im-
portant questions in the juristic discussions of surrogacy is the relationship between surro-
gacy and adultery and, consequently, the extent to which a child born through surrogacy is
considered legitimate or illegitimate. Another important question is the potential impact of
surrogacy on the reconstruction of parental relationships as well as the emergence of new
kinds of parenthood.38
The impact of modern medical technology on the classical corpus of Islamic law has not
been limited to particular substantive issues but it has also included its procedural dimen-
sions as well. For example, juristic deliberations on the evaluation of DNA testing and its
evidentiary weight vis-à-vis classical means is an important case in point. This issue has
stirred extensive juristic discussions to address the evidentiary power of DNA whether in
criminal or in civil cases. In general, use of DNA analysis in the investigation of criminal
cases was permitted with the exception of cases involving textually stipulated crimes and
punishments (h․udūd) or retaliation (qis․ās․), which would require adherence to certain pre-
scribed rules and procedures. 39 On the other hand, the main implementation of DNA analy-
sis in civil cases is for paternity verification. Opinions in the literature indicate that securing
legitimacy for the use of DNA fingerprinting for this purpose is achieved through two main
approaches. The first is treatment of DNA testing results as a type of supporting or circum-
stantial evidence, in conjunction with or in lieu of the classical method of physiognomy
(qiyāfa). The second is treatment of DNA testing results as a full legal proof by revisiting the
definition of the term evidence (bayyina), which, according to this line of reasoning, does
not have to be limited to witness testimony, as it has traditionally been interpreted by the
majority of jurists.40
119
Ayman Shabana
Conclusion
Modern medical knowledge has become an indispensable part of global culture, which is
informed largely by modern science and its far-reaching ability to explain all types of natural
phenomena including the constitution of the human body itself and the extent to which it
differs from other living organisms. Any functional legal system has to find ways to integrate
modern scientific findings into its legal structure, and when necessary revise legal rules and
doctrines that cannot be substantiated by verified scientific facts. Within the Muslim con-
text, bioethical deliberations are often dominated by jurisprudential discourses. This can
be attributed to the pivotal role that Shariʿah has always played in the definition of Islamic
morality and the development of the Islamic normative tradition. This may appear to conflict
with conventional assessments of the role of Shariʿah in the modern period, which tend to
emphasize its diminished role and scope in the wake of the influential legal reform move-
ment that ushered the birth of national legal systems, development of legal codes, and rise of
legal positivism. With very few exceptions, Shariʿah has lost its status as the sole and unchal-
lenged legal framework for governing all aspects of Muslim populations, and occasionally also
non-Muslims living under Muslim rule. Shariʿah, however, was able to maintain its vitality
through its ritual, devotional and, wider moral dimensions. At that level Shariʿah did not
lose much in the wake of the legal reform movement spanning most Muslim-majority coun-
tries over the past two centuries. Modern bioethical questions are important test cases that
demonstrate the continued relevance and importance of Shariʿah for Muslims as they grapple
with such unprecedented bioethical dilemmas. In the absence of binding (positive) legisla-
tion, jurisprudential pronouncements, in the form of individual or collective fatwas, become
the main resource for moral-legal decision making. Moreover, as constitutions in Muslim-
majority countries often list Shariʿah as a (if not the) main source of legislation, courts also
usually resort to this body of ethical-legal literature to fill legislative gaps in particular cases.
Notes
* This chapter was made possible by NPRP grant # NPRP8-1478-6-053 from the Qatar National
Research Fund (a member of Qatar Foundation). The statements made herein are solely the respon-
sibility of the author.
1 This was the vision that Van Rensselaer Potter, who is considered one of the founders and pioneers
of modern bioethics, proposed. See his ‘Bioethics, the Science of Survival’, Perspectives in Biology and
Medicine 14 (1970), 127–53; and Bioethics: Bridge to the Future (Englewood Cliffs, NJ: Prentice-Hall
Inc., 1971). For a general overview of the development of the field, see Albert Jonsen, The Birth of
Bioethics (Oxford: Oxford University Press, 1998).
2 Lewis Vaughn, Bioethics: Principles, Issues, and Cases (Oxford: Oxford University Press, 2010), 3–22.
3 For an overview of the range of ethical thought in the Islamic tradition, see George Hourani, Rea-
son and Tradition in Islamic Ethics (Cambridge: Cambridge University Press, 1985); Majid Fakhry,
Ethical Theories in Islam (Leiden: Brill, 1994); Muhammad ʿAbid al-Jabiri, Al-ʿAql al-Akhlaqi al-ʿArabi
(Beirut: Markaz Dirasat al-Wihda al-ʿArabiyya, 2006).
4 See my ‘Bioethics in Islamic Thought’, Religion Compass 8/11 (2014): 337–46.
5 See, for example, Abdulaziz Sachedina, Islamic Biomedical Ethics: Principles and Application (Oxford:
Oxford University Press, 2009), 40 (exploring the development of practical ethics in the Islamic
normative tradition in two sciences: ethics of action in fiqh and ethics of character in akhlaq); Kevin
Reinhart, ‘Islamic Law as Islamic Ethics’, The Journal of Religious Ethics 11 (1983): 186–203.
6 See Fazlur Rahman, Islam (Chicago: University of Chicago Press, 2002), 100–16.
7 Franz Rosenthal, ‘The Defense of Medicine in the Medieval Muslim World’, Bulletin of the History
of Medicine 43 (1969): 519–32 (listing three main types of attack against medicine in the form of: a
religious argument that it would conflict with religious faith; a secular argument questioning its
healing effect; and the argument that medicine is quite difficult and hard to attain). See also Fazlur
120
Rahman, Health and Medicine in the Islamic Tradition (Chicago: ABC International Group, 1998), 29
(arguing that despite tendencies in Islamic theology emphasizing total resignation to Divine will,
on the practical side Muslims understood the importance of exerting their own efforts in order to
achieve desired outcomes).
8 Juristic discourses on the preservation of human life would include: discussions on the protection
of potential human life as in the case of the debate on abortion; protection of existing human life
as in the case with the debate on homicide or suicide; or even protection of the human body after
death as in the case of the ban against mutilation of dead bodies or the debate on anatomy.
9 ʿIzz al-Din ʿAbd al-ʿAziz ibn ʿAbd al-Salam, Al-Qawaʿid al-Kubra, al-Mawsum bi-Qawaʿid al-Ahkam
fi Islah al-Anam, 2 vols, ed. Nazih Kamal Hammad and ʿUthman Jumʿa Dumayriyya (Damascus:
Dar al-Qalam, 2000), 1:8.
10 ʿAbd al-Rahman b. Muhammad b. Khaldun, Muqaddimat Ibn Khaldun, ed. Hamid Ahmad al-Tahir
(Cairo: Dar al-Fajr li-l-Turath, 2004), 610 (noting that medical issues included in Prophetic reports
should be seen as part of the customary practices associated with Arabic culture during the lifetime
of the Prophet rather than an essential part of Shariʿah). See also Rahman, Health and Medicine in the
Islamic Tradition, 32–3.
11 Abu Dawud Sulayman ibn al-Ashʿath al-Sijstani, Sunan Abi Dawud, 3 vols, ed. Muhammad ʿAbd
al-ʿAziz al-Khalidi (Beirut: Dar al-Kutub al-ʿIlmiya, 2007), 3:192.
12 ʿAbd al-Qadir ʿAwda, Al-Tashriʿ al-Jinaʾi al-Islami Muqaranan bi-l-Qanun al-Wadʿi, 2 vols (Cairo:
Maktabat Dar al-Turath, 2003), 1:448–52; Muhammad Sallam Madkur, Nazariyyat al-Ibaha ʿinda
al-Usuliyyin wa-l-Fuqahaʾ, Bahth Muqaran (Cairo: Dar al-Nahda al-ʿArabiyya, 1984), 458–61; Ahmad
Sharaf al-Din, al-Ahkam al-Sharʿiyya li-l-Aʿmal al-Tibbiyya (Cairo: NP, 1987), 41.
13 Sharaf al-Din, al-Ahkam al-Sharʿiyya, 43.
14 ʿAwda, Al-Tashriʿ al-Jinaʾi al-Islami, 1:449–51.
15 Ibn Hajar al-ʿAsqalani, Fath al-Bari bi-Sharh Sahih al-Bukhari, 13 vols (Cairo: Maktabat al-ʿIlm,
2000), 10:153 (Kitab al-Tibb).
16 For example, one report includes reference to 70,000 entering paradise without questioning. Ac-
cording to the report, they did not resort to incantation, evil omen or cauterization but they instead
placed their trust in God. See Ibn Hajar al-ʿAsqalani, Fat-h al-Bari bi-Sharh Sahih al-Bukhari, 11:448
(Kitab al-Riqaq).
17 Ibn Qayyim al-Jawziyyah, Zad al-Maʿad fi Hady Khayr al-ʿIbad, 6 vols, ed. Shuʿayb al-Arnaʾut and
ʿAbd al-Qadir al-Arnaʾut (Beirut: Muʾssasat al-Risala, 1998), 4:13. See also Ibn Hajar, Fat-h al-Bari,
10:153–4 and 11:452–3. The Shafiʿi jurist Abu Hamid al-Ghazali divides the causal connection
between treatment and healing into three main types: definitive (maqt․ūʿ), speculative (maz ․nūn), and
imaginary (mawhūm). The meaning of reliance on God differs for each of these types. For example,
the first type is illustrated by the occurrence of satiation after eating bread and in this case true
reliance on God means observing, considering and fulfilling this causal connection. Disregarding
this connection would be prohibited, especially if it leads to death. The third type is illustrated by
cauterization because its curative effect cannot be confirmed. In this case, reliance on God means
disregarding this type of treatment. The second type covers a wide range of medical procedures
such as cupping, whose curative effect is only speculative. This type occupies an intermediary stage
between the first and the third types and is subject to the discretion of the individual: observing this
type is not antithetical to true reliance on God (as is the case with the third type) and disregarding
it is not prohibited (as is the case with the first type). See Abu Hamid Muhammad ibn Muhammad
ibn Ahmad al-Ghazali, Ihyaʾ ʿUlum al-Din, 5 vols, ed. ʿAbd al-Muʿti Amin Qalʿaji (Beirut: Dar
Sadir, n.d.), 4:350.
18 For example, al-Ghazali listed some situations in which, he argued, avoiding medical treatment
could be preferable, as is the case when: the person believes, on the basis of gnostic knowledge
(kashf ) that his life-term has come to an end and that medical treatment is of no use; the person
is so occupied by his spiritual condition and concern for salvation in the hereafter that he cannot
attend to his physical ailment, which makes him less responsive to the instructions of the treating
physician; the person suffers from a chronic disease with no known or certain cure; the person
intends illness as a means to increase his record of good deeds or expiate past sins; the person fears
that treating his illness would affect his self-consciousness and increase the level of distraction. See
al-Ghazali, Ihyaʾ ʿUlum al-Din, 4:354–8.
19 ʿAbd al-Fattah Mahmud Idris, Hukm al-Tadawi bi-l-Muharramat, Bahth Fiqhi Muqaran (Cairo: NP,
1993), 8–32; ʿAli Muhammad Yusuf al-Muhammadi, ‘Hukm al-Tadawi fi al-Islam’, Majallat Majmaʿ
121
Ayman Shabana
al-Fiqh al-Islami 7 (1992): 602–8; al-Mawsuʿa al-Fiqhiyya, 45 vols (Kuwait: Wazarat al-Awqaf wa-l-
Shuʾun al-Islamiyya, 2008), 11:115–18.
20 On the extent to which the jurists discussed the impact of illness on one’s ability to discharge one’s
legal-religious duties, see Ahmad b. Ibrahim b. Khalil, Ahkam al-Marda, ed. Muhammad Surur
Muhammad Murad al-Balkhi (Kuwait: Wazarat al-Awqaf wa al-Shuʾun al-Islamiyya, 1997). The
international Islamic Fiqh Academy, affiliated with the Organization of Islamic Cooperation, dis-
cussed the issue of seeking medical treatment in its seventh conference (held in Jeddah, Saudi Arabia,
9–14 May 1992). Its resolution indicates that in principle seeking medical treatment is legitimate but
the exact ruling may vary for different individuals depending on specific circumstances. For exam-
ple, it can be obligatory if avoiding medical treatment would result in one’s death, incapacity or fail-
ure of one’s organs. It would also be obligatory in cases where one’s disease would transmit to others
if left untreated, as is the case with contagious diseases. If the disease would result in mere weakness
in the body rather than death or loss of organs, treatment in this case would be recommended but
not obligatory. Apart from these two cases, medical treatment would be just permissible. Finally
medical treatment would be reprehensible in cases where it would lead to further complications or
deterioration of the health condition. See Majallat Majmaʿ al-Fiqh al-Islami 7 (1992): 731–2.
21 For a similar discussion on the question of contagion and juristic deliberations over its impact on
the transmission of diseases, see Justin Stearns, ‘Enduring the Plague: Ethical Behavior in the Fat-
was of a Fourteenth Century Mufti and Theologian’, in Muslim Medical Ethics: from Theory to Practice,
ed. Jonathan E. Brockopp and Thomas Eich (Columbia: University of South Carolina Press, 2008),
38–54; Russell Hopley, ‘Contagion in Islamic Lands: Responses from Medieval Andalusia and
North Africa’, Journal for Early Modern Cultural Studies 10 (2010): 45–64.
22 Birgit Krawietz, ‘Shari’ah and Medical Ethics’, in The Ashgate Research Companion to Islamic Law, ed.
Rudolph Peters and Peri Bearman (Burlington, VT: Ashgate Publishing Company, 2014), 292.
23 See, for example, Wael Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University
Press, 2009), 1 (making reference to the description of Shariʿah as the lifeblood of Islam). See also
my ‘Religious and Cultural Legitimacy of Bioethics: Lessons from Islamic Bioethics’, Medicine,
Health Care and Philosophy 16 (2013): 6717.
24 Some scholars, however, point out gaps within the current juristic discourses on biomedical issues
and emphasize the inadequacy of classical legal methodology in addressing the new questions that
they generate. See for example, Sachedina, Islamic Biomedical Ethics, 44 and Ebrahim Moosa, ‘Mus-
lim Ethics and Biotechnology’, in The Routledge Companion to Religion and Science, ed. James W.
Haag et al. (New York: Routledge, 2012), 460.
25 See, for example, Muhammad Sulayman al-Ashqar, Abhath Ijtihadiyya fi al-Fiqh al-Tibbi (Amman,
Jordan: Dar al-Nafaʾis, 2006).
26 The fatwa literature is usually singled out as one of the important resources for the study of Muslim
perspectives on bioethical issues. See, for example, Vardit Rispler-Chaim, Islamic Medical Ethics in
the Twentieth Century (Leiden: Brill, 1993), 3.
27 Mohammed Ghaly, ‘Islamic Bioethics in the Twenty-First Century’, Zygon: Journal of Religion and
Science 48 (2013): 592–9.
28 Muzaffar Iqbal, Science and Islam (Westport, CT: Greenwood Press, 2007), 182; Mohammed Ghaly,
‘Biomedical Scientists as Co-Muftis: Their Contribution to Contemporary Islamic Bioethics’, Die
Welt Des Islams 55 (2015): 286–311 (discussing the problems involved in this collaboration between
religious scholars and medical experts).
29 Khalid Husayn al-Khalid, Al-Ijtihad al-Jamaʿi fi al-Fiqh al-Islami (Dubai: Markaz Jumʿa al-Majid
li-l-Thaqafa wa-l-Turath, 2009), 79. See also Mohammed Ali al-Bar and Hassan Chamsi-Basha,
Contemporary Bioethics: Islamic Perspective (New York: Springer, 2015) 9–15.
30 See, for example, Morgan Clarke, Islam and New Kinship, Reproductive Technology and the Shari’ah
in Lebanon (New York: Berghahn Books, 2009) and Marcia Inhorn, The New Arab Man: Emergent
Masculinities, Technologies, and Islam in the Middle East (Princeton, NJ: Princeton University Press,
2012), 201–2.
31 Jad al-Haqq ʿAli Jad al-Haqq, Bayan li-l-Nas (Cairo: Dar al-Faruq, 2014), 691–4; Sachedina, Islamic
Biomedical Ethics, 177.
32 Jad al-Haqq, Bayan li-l-Nas, 695–9. For more on the debate on organ donation within the Muslim
context, see Sherine Hamdy, Our Bodies Belong to God: Organ Transplants, Islam, and the Struggle
for Human Dignity in Egypt (Berkeley: University of California Press, 2012) and Farhat Moazam,
Bioethics and Organ Transplantation in a Muslim Society: A Study in Culture, Ethnography, and Religion
(Bloomingdale: Indiana University Press, 2006).
122
33 For example, Muzaffar Iqbal notes ‘over a period of time, a certain pattern seems to have emerged
in responses of Muslim jurists to issues arising out of new scientific and technological develop-
ments: most jurists first oppose the practice whereas a minority allows it; with time, the practice
becomes prevalent and a de facto acceptance is then granted’. See Iqbal, Science and Islam, 184.
34 Muhammad ʿAli al-Bar, Khalq al-Insan bayna al-Tibb wa-l-Qurʾan ( Jeddah, Saudi Arabia: al-Dar
al-Saʿudiyya lil-Nashr wa-l-Tawziʿ, 1984), 452; ʿAʾisha Ahmad Salim Hasan, Al-Ahkam al-Mutaʿlliqa
bi-l-Haml fi al-Fiqh al-Islami (Beirut: al-Muʾassasa al-Jamiʿiyya li-l-Dirasat wa-l-Nashr wa-l-Tawziʿ,
2008), 23.
35 Hasan, Al-Ahkam al-Mutaʿlliqa bi-l-Haml, 24; Wael Hallaq, Sharı̄ʿa: Theory, Practice, and Transforma-
tion (Cambridge: Cambridge University Press, 2009), 464.
36 See for example, Khalid al-Mad-hkur et al. (eds), Al-Haya al-Insaniyya: Bidayatuha wa-Nihayatuha
fi al-Mafhum al-Islami (Kuwait: al-Munazzama al-Islamiyya li-l-ʿUlum al-Tibbiyya, 1985) and
Ahmad al-Jindi et al. (eds), Al-Taʿrif al-Tibbi li-l-Mawt (Kuwait: al-Munazzama al-Islamiyya li-
l-ʿUlum al-Tibbiyya, 2000). For commentaries on these deliberations, see Mohammed Ghaly,
‘The Beginning of Human Life: Islamic Bioethical Perspectives’, Zygon 47 (2012): 175–213;
Ebrahim Moosa, ‘Language of Change in Islamic Law: Redefining Death in Modernity’, Islamic
Studies 38 (1999); 305–42; Aasim Padela et al., ‘Medical Experts Islamic Scholars Deliberating
Over Brain Death: Gaps in the Applied Islamic Bioethics Discourse’, The Muslim World 101
(2011): 53–72.
37 See, for example, Thomas Eich, ‘Decision-Making Processes among Contemporary Ulama,
Islamic Embryology and the Discussion of Frozen Embryos’, in Muslim Medical Ethics from Theory to
Practice, ed. Jonathan Brockopp and Thomas Eich (Columbia: University of South Carolina Press,
2008), 61–75.
38 See my ‘Foundations of the Consensus against Surrogacy Arrangements in Islamic Law’, Islamic
Law and Society 22 (2015): 82–113.
39 One of the main sources of guidelines for this issue has been the decision of the Islamic Fiqh Coun-
cil issued in 2002, see Majallat al-Majmaʿ al-Fiqhi al-Islami 15 (2002): 478–81.
40 See my ‘Islamic Law of Paternity between Classical Legal Texts and Modern Contexts: From Phys-
iognomy to DNA Analysis’, Journal of Islamic Studies 25 (2014): 1–32.

Ashqar, Muhammad Sulayman al-. Abhath Ijtihadiyya fi al-Fiqh al-Tibbi (Amman, Jordan: Dar al-Nafaʾis,
2006).
Bar, Muhammad ʿAli al-. Khalq al-Insan bayna al-Tibb wa-l-Qurʾan ( Jeddah, Saudi Arabia: al-Dar
al-Saʿudiyya li-l-Nashr wa-l-Tawziʿ, 1984).
Bar, Mohammed ʿAli al-, and Hassan Chamsi-Basha. Contemporary Bioethics: Islamic Perspective (New
York: Springer, 2015).
Clarke, Morgan. Islam and New Kinship, Reproductive Technology and the Shari’ah in Lebanon (New York:
Berghahn Books, 2009).
Eich, Thomas. ‘Decision-Making Processes among Contemporary Ulama, Islamic Embryology and
the Discussion of Frozen Embryos’. In Muslim Medical Ethics from Theory to Practice, ed. Jonathan
Brockopp and Thomas Eich (Columbia: University of South Carolina Press, 2008).
Fakhry, Majid. Ethical Theories in Islam (Leiden: Brill, 1994).
Ghaly, Mohammed. ‘The Beginning of Human Life: Islamic Bioethical Perspectives’. Zygon 47 (2012):
175–213.
Ghaly, Mohammed. ‘Islamic Bioethics in the Twenty-First Century’. Zygon: Journal of Religion and
Science 48 (2013): 592–9.
Ghaly, Mohammed. ‘Biomedical Scientists as Co-Muftis: Their Contribution to Contemporary
Islamic Bioethics’. Die Welt Des Islams 55 (2015): 286–311.
Hamdy, Sherine. Our Bodies Belong to God: Organ Transplants, Islam, and the Struggle for Human Dignity
in Egypt (Berkeley: University of California Press, 2012).
Hasan, ʿAʾisha Ahmad Salim. Al-Ahkam al-Mutaʿlliqa bi-l-Haml fi al-Fiqh al-Islami (Beirut: al-Muʾassasa
al-Jamiʿiyya li-l-Dirasat wa-l-Nashr wa-l-Tawziʿ, 2008).
Hopley, Russell. ‘Contagion in Islamic Lands: Responses from Medieval Andalusia and North Africa’.
Journal for Early Modern Cultural Studies 10 (2010): 45–64.
Hourani, George. Reason and Tradition in Islamic Ethics (Cambridge: Cambridge University Press, 1985).
123
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Ibn Khaldun, ʿAbd al-Rahman b. Muhammad. Muqaddimat Ibn Khaldun. Ed. Hamid Ahmad al-Tahir
(Cairo: Dar al-Fajr lil-Turath, 2004).
Ibn Khalil, Ahmad b. Ibrahim. Ahkam al-Marda. Ed. Muhammad Surur Muhammad Murad al-Balkhi
(Kuwait: Wazarat al-Awqaf wa-l-Shuʾun al-Islamiyya, 1997).
Idris, ʿAbd al-Fattah Mahmoud. Hukm al-Tadawi bi-l-Muharramat, Bahth Fiqhi Muqaran (Cairo: n.p.,
1993).
Inhorn, Marcia. The New Arab Man: Emergent Masculinities, Technologies, and Islam in the Middle East
(Princeton, NJ: Princeton University Press, 2012).
Iqbal, Muzaffar. Science and Islam (Westport, CT: Greenwood Press, 2007).
Jabiri, Muhammad ʿAbid al-. Al-ʿAql al-Akhlaqi al-ʿArabi (Beirut: Markaz Dirasat al-Wihda al-ʿArabiyya,
2006).
Jad al-Haqq, Jad al-Haqq ʿAli. Bayan lil-Nas (Cairo: Dar al-Faruq, 2014).
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Rudolph Peters and Peri Bearman (Burlington, VT: Ashgate Publishing Company, 2014).
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and Religion (Bloomingdale: Indiana University Press, 2006).
Moosa, Ebrahim. ‘Language of Change in Islamic Law: Redefining Death in Modernity’. Islamic Stud-
ies 38 (1999): 305–42.
Moosa, Ebrahim. ‘Muslim Ethics and Biotechnology’. In The Routledge Companion to Religion and Sci-
ence, ed. James W. Haag et al. (New York: Routledge, 2012).
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7 (1992): 599–662.
Padela, Aasim et al. ‘Medical Experts Islamic Scholars Deliberating Over Brain Death: Gaps in the
Applied Islamic Bioethics Discourse’. The Muslim World 101 (2011): 53–72.
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127–53.
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Rosenthal, Franz. ‘The Defense of Medicine in the Medieval Muslim World’. Bulletin of the History of
Medicine 43 (1969): 519–32.
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Press, 2009).
Shabana, Ayman. ‘Religious and Cultural Legitimacy of Bioethics: Lessons from Islamic Bioethics’.
Medicine, Health Care and Philosophy 16 (2013): 671–7.
Shabana, Ayman. ‘Bioethics in Islamic Thought’. Religion Compass 8/11 (2014): 337–46.
Shabana, Ayman. ‘Islamic Law of Paternity between Classical Legal Texts and Modern Contexts: From
Physiognomy to DNA Analysis’. Journal of Islamic Studies 25 (2014): 1–32.
Shabana, Ayman. ‘Foundations of the Consensus against Surrogacy Arrangements in Islamic Law’.
Islamic Law and Society 22 (2015): 82–113.
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124
Part II
History and interpretation
Scholars
6
The Qurʾan and the Hadith
as sources of Islamic law
Amr Osman
The primary legal sources in the classical Sunni view of Islamic law are the Qurʾan and the
Prophet Muhammad’s Sunnah/Hadith. All other sources of Islamic law derive their legitimacy
in this theory from these two sources. As legal sources, however, the Qurʾan and the Sunnah/
Hadith present various forms of challenge to legal scholars. This chapter presents a general his-
torical overview of these two sources of Islamic law in addition to some of the challenges that
they pose to jurists, both as independent and complementary textual sources. The chapter be-
gins with a brief introduction on the definition, authenticity, status and authority of these two
sources both in the classical Sunni view and in some modern studies, followed by a discussion
of specific case studies that illustrate their nature as legal sources. The argument put forward in
this chapter is that the notion that Islamic law is based on what its textual sources ‘say’ is unten-
able. Muslim jurists, as will be demonstrated, knew that an essential aspect of what they were
doing was to flesh or work out the meaning of these texts. This they did on the basis of many
factors pertaining, not only to language, but also to cultural, social and moral norms and values.
1 The Qurʾan and the Sunnah/Hadith: definition,

authenticity, status and authority
According to the Orthodox Sunni perspective, the Qurʾan is God’s word that was revealed
to the Prophet Muhammad during the 22 years of his messengership (from 610 to 632 CE).
Based on internal and external pieces of evidence, Muslims believe that the exact wording
of the Qurʾan has been safeguarded since its revelation to the Prophet. Not only does God
Himself explicitly mention in the Qurʾan that he would protect it (as Muslims take Q. 15:9 –
‘Verily, We have revealed the Reminder and We will surely be its Guardian’ – to mean),
but the fact that dozens or even hundreds of individuals transmitted it from the Prophet to
thousands in each subsequent generation removes any doubt about the authenticity of both
the entirety of the Qurʾan and any part thereof. Reports suggesting that some parts of the
Qurʾan may have been altered or removed have been categorically rejected by Sunni scholars
as both unorthodox and blasphemous, although most of these same scholars hold that a few
verses of the Qurʾan may have been removed from the Qurʾan by God Himself (a form of
abrogation – naskh (more on which later) – known as ‘textual abrogation’).
127
Amr Osman
The developed Sunni legal theory broadly defines Sunnah as the sayings and practice
of the Prophet Muhammad, all of which are considered normative and binding sources of
theological, legal and other Islamic beliefs. In its narrow sense, however, the Sunnah refers
to only the practice or the example of the Prophet. It is regarded as a normative and ideal
embodiment of the teachings of Islam that was, as such, also safeguarded by God as a form
of revelation extra to the Qurʾan. According to this view, Muhammad, qua prophet and
messenger of God, was protected from error, and when he did err, he was set right by divine
grace. Furthermore, as the receiver of revelation, the Prophet was the main interpreter of
God’s words, and his statements (hadiths) were declared authoritative by the Qurʾan itself.
This notwithstanding, Sunni scholars have maintained that the Prophet’s statements do not
match the Qurʾan’s perfection, immutability, spirituality and status as God’s word the Qur’an
that is used exclusively in ritual prayers. Because of the organic relationship between the
Prophet’s practice and sayings – the former have been transmitted in the form of reports
about his actions similar to the reports that contain his words – the terms Sunnah and Hadith
came to be used almost interchangeably by Muslim scholars. For convenience, Hadith will
be used henceforth to refer to both the sayings of the Prophet Muhammad as well as reports
about his practice.
There is another important difference between the Qurʾan and the Hadith as legal
sources, which is that despite its status as a form of divine revelation, the Hadith, in the
Sunni tradition, did not enjoy the same degree of divine protection as was the case with the
Qurʾan. Establishing and safeguarding the authenticity of the Hadith required arduous hu-
man effort. In the decades following the Prophet’s death, both reports from and about him
were transmitted orally. When political, religious and legal divisions among Muslims deep-
ened, traditions were falsely put in the mouth of the Prophet to lend credence to conflicting
theological, legal and political views. This situation alarmed a group of pious transmitters
of Prophetic traditions, who, starting from as early as the second half of the first/seventh
and well into the second/eighth centuries, began to do two things almost concurrently:
collecting and writing down reports from and about the Prophet Muhammad, and devel-
oping a methodology by which they assessed the reliability of other Hadith transmitters
(henceforth ‘traditionists’) and the integrity of each chain of transmitters (isnād, literally
meaning a prop) which they now insisted must precede, or support, any report from or
about the Prophet. In other words, these scholars acted as Hadith collectors, transmitters
and critics.
Hadith scholars needed to travel far and wide to ‘collect’ Hadith because after the Mus-
lim conquests in the few decades following the Prophet’s death, his Companions (s․ah․āba)
dispersed in various provinces in the Muslim state, such as Iraq, Iran, Syria and Egypt,
where they transmitted the traditions that they had learned from the Prophet. Conse-
quently, the traditions that existed in these provinces varied, which naturally resulted in
legal disagreements among scholars, with each assuming that it followed the example of
the Prophet. Seeking to standardize the law, traditionists began to collect traditions from
various regions, a strenuous effort that culminated in the emergence in the third/ninth cen-
tury of large and ‘universal’ canonical collections of ‘sound’ traditions, which collections
became the standard and authoritative sources of the Hadith. But during this process of
Hadith collection, these scholars needed to sift authentic from unauthentic traditions. This
they did, according to the Sunni theory, by collecting information about traditionists in
each chain of transmitters, a process that led to the compilation of even larger collections
of biographies (tarājim) of all individuals featured in chains of Hadith transmission, both
reliable and otherwise.
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Qurʾan and Hadith: sources of Islamic law
Later Sunni scholars believe that the methodology developed by the early Hadith critics
was successful in sifting authentic from unauthentic traditions. However, because the vast
majority of the Prophetic traditions were transmitted by individual transmitters (āh․ād) from
the Prophet and even for one or two more generations to come, and because of the presence
of multiple versions of many traditions, even sound Hadith is not deemed to have the same
epistemological status of the Qurʾan that was transmitted, as has been mentioned previously,
by a large number of people in each of its chains of transmitters. Accordingly, whereas the au-
thenticity of the Qurʾan is certain, that of the Hadith is only probable, but is certain enough
to be a basis of what is regarded as normative views and practice. This understanding of the
epistemological value of the Hadith, however, did not prevent Sunni scholars from regarding
it, not only as a binding legal source alongside the Qurʾan, but in fact as a legal source that
‘rules over’ the Qurʾan, which is in more need of the Hadith than the Hadith is of it, as some
medieval Muslim scholars put it.1
In the classical Sunni theory, then, both the Qurʾan and the Prophet Muhammad’s Sun-
nah/Hadith were accepted as the main sources of Islamic law right from the beginning of
Islam. Both were regarded as two independent but also complementary (as will be seen)
forms of revelation, even if the Qurʾan is held in special esteem as God’s holy speech that is
both immutable, unsurpassed and eternally divinely-protected from verbal corruption. Both
the Qurʾan and the Sunnah/Hadith, therefore, have contributed to the formation of Islamic
law since the beginning of Islam, even if this classical theory acknowledges that the disparity
among different Muslim provinces in early Islam in terms of the repository of Prophetic tra-
ditions that were available to each of them led to legal disagreements among jurists in various
regions but also within each region. Starting from the second/eighth century, however, Had-
ith scholars and critics were able first to purge fabricated traditions and embark on a process
of collecting and writing down traditions. This process led to some standardization, not
necessarily of actual legal views (which remain diverse), but primarily of the sources of law.
Disagreements among jurists after this point did not result mainly from possessing different
pieces of evidence, but primarily from disagreements over the interpretation of these pieces of
evidence.2
In contrast with this classical Sunni theory, modern Western and occasionally Muslim
scholarship tends to question the authenticity of most Hadith (with a minority view ex-
tending this scepticism to the Qurʾan itself ). According to this scepticism, rather than being
a formative source of Islamic law, Prophetic traditions post-dated legal views and cannot
therefore be used to understand the formation of Islamic law. Instead, reflecting early points
of view, these traditions, which regularly contradicted each other, are useful for our under-
standing of the development of Islamic law out of views that had already existed and been based
on various factors and considerations, even if some of them were sincerely inspired by the
Prophetic example. In this view, therefore, later hermeneutics did not just aim to interpret
textual evidence, but also (and for some scholars primarily) to legitimize the views that legal
schools inherited from their eponymous founders and their early followers.3 In other words,
against the traditional assumption of Sunni scholars that substantive Islamic rulings (ah ․kām)
had been derived from Islam’s textual sources using the tools of us․ūl al-fiqh (the theoretical
foundations of Islamic law), some or many modern scholars have suggested that us․ūl al-fiqh
was a relatively late development in Islam’s legal history and one that was used to render
valid, retrospectively, rulings that had developed in various environments and on the basis of
different sorts of sources.
The next section will provide an overview of the hermeneutics of the Qurʾan and the Hadith
as Muslim scholars have conceptualized the relationship between them as two textual sources
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of Islamic law. The discussion of this hermeneutics will be linguistic but also historical.
The cases discussed below are old and have been largely settled within all schools of Islamic
law. However, and in order to keep the chapter within a reasonable length, the following
discussion will not delve deeply into the history of early legal disagreements and will avoid
controversies in modern scholarship over the role of us․u¯l al-fiqh in the actual synthesis of
Islamic law. The following discussion relies, more or less, on the classical Sunni theory on
the formation and development of Islamic law.
2 The hermeneutics of the Qurʾan and the Hadith

A scholar of Islamic law has argued that as it developed, Islamic law is textualist rather than
positivist in nature; it seeks to ‘safeguard God’s law against the encroachments of human
law-making’ by emphasizing the absolute supremacy of the legal texts (the Qurʾan and the
Hadith) as the only authoritative and binding legal sources.4 As such, Islamic jurisprudence
is primarily expository and exegetical. Through hermeneutics, it seeks to find evidence in
the textual sources of the law and to reconcile what appears to be contradictory textual evi-
dence. In this process, the same scholar continues, they assume that ‘a text may communicate
a clear and obvious meaning entirely through the medium of language: no interpreter is
needed to make that meaning any more final than it already is’.5 In the actual historical real-
ity, however, things seem to have been different; Islam’s textual sources regularly generated
hair-splitting debates among Muslim jurists in ways that challenge this view of the power
of language to convey meaning on its own. Islamic jurisprudence is indeed expository, but
only if exposition here means more than the texts appear to be saying for a scholar of Arabic
semantics.
The discussion below explains how an independent Muslim jurist (i.e. a jurist who does
not follow the fixed legal views of any particular school of Islamic law), a jurist facing an
issue that has not been resolved in his school, or a jurist investigating a case that has not
been the subject of consensus (ijmāʿ) among previous scholars, would typically deal with the
Qurʾan and the Hadith as legal sources. This will be followed by a more detailed discussion
of a case study that illustrates the complexities of the Qurʾan and the Hadith as both inde-
pendent and complementary legal sources and offers a glimpse of the kind of considerations
that Muslim scholars may have taken into account when interpreting these textual sources
of Islamic law.
When faced with a legal question, a Muslim jurist begins with collecting relevant pieces of
evidence from the two textual sources of Islamic law, starting with the Qurʾan and moving
on to the Hadith. More often than not, this jurist would face two related problems: a possible
ambiguity in one or both of these sources, or a (presumably apparent) contradiction among
the various pieces of textual evidence that he (usually “he”) identifies. To deal with these
two problems of ambiguity and contradiction, that scholar would have to make use of a wide
range of hermeneutic tools. The following are examples of these problems and tools.
Starting with the Qurʾan, a frequent problem that jurists regularly face is the exact scope
of Qurʾanic terms and statements. For example, according to Q. 4:23 (Forbidden to you [for
marriage] your mothers, daughters, sisters … foster mothers, foster sisters …), foster moth-
ers cannot be taken as wives by the babies whom they suckle. This verse raises a number
of questions, foremost among which is the amount of suckling or the number of suckling
sessions needed to establish a foster relationship, as well as how much milk is needed in each
case. A ‘literal’ reading of this verse may suggest that even if a drop of milk passes through a
baby’s mouth to his stomach, he becomes a foster son for the woman who has breast-fed him.
130
Expectedly, however, Muslim jurists wondered if that situation was similar to the case of a boy
who was breast-fed reguraly by a woman. Another question would be whether the milk has
to be directly suckled by the baby rather than squeezed into a cup, for instance, from which
the baby drinks. A third question would be whether the suckling person has to be a baby,
rather than a toddler or even an adult. There are other questions that could be asked about this
verse, but these hopefully suffice to demonstrate the ‘ambiguity’ that Muslim scholars may
find when they deal with Qurʾanic evidence due to the un-specificity of its scope.
Another kind of ambiguity that jurists may face when dealing with the Qurʾan is the
indication of its imperatives; that is, what does an imperative (do!) exactly mean, absent any
specific evidence? The three possible answers to this question are obligation, recommenda-
tion or permission. The imperative mode of verbs is potentially ambiguous because, without
any internal or external evidence, it can, in and of itself, indicate any of these senses. For
example, Q. 2:282 – which happens to be the longest verse in the Qurʾan, known as the
‘Debt Verse’ – says: ‘O you who believe, when you contract a debt for a fixed term, record
it in writing.’ In addition to questions about the value of the debt meant in the verse (which
again has to do with the issue of scope), an obvious question would be whether the addressees
have to, are recommended to or are only permitted to record the debt in writing. Disagree-
ment over the indications of Qurʾanic imperatives has divided Muslim jurists over numerous
theoretical as well as substantive issues. Similarly, we may add, a Qurʾanic proscription (do
not!), absent any evidence, may indicate complete prohibition or a mere recommendation to
avoid something. Unlike the imperative, however, a proscription cannot denote the neutral
category of permission.
Being another textual source of Islamic law, the Hadith is not free of its own ambiguities,
although Prophetic traditions tend to be straightforward in their meaning, which, interest-
ingly, led some scholars to question their authenticity. A classic example of a controversy
that arises out of a Prophetic tradition is the religious tax (zakat) imposed on livestock. In a
tradition the Prophet is reported to have said that tax is due on livestock grazing in natural
pasturage (sā’ima). A question that arises from this tradition is whether the tax is also due on
livestock fed by its owner (and, accordingly, cost him more than the first category of live-
stock). Those who believe in the so-called argumentum a contrario hold that the argument from
this tradition that non-grazing livestock is not subject to the religious tax is a valid inference.
Others who do not accept this type of inference, however, do not find in the tradition itself
a valid reference to non-grazing livestock and argue that the question whether it is taxable
or not must rely on other pieces of evidence. As this example makes evident, some of the
controversies over Qurʾanic and Prophetic statements result from differing views on valid
and invalid inferences from these two textual sources.6
Muslim jurists have dealt with the linguistic challenges of the Qurʾan and the Hadith us-
ing various tools. In the case of the Qurʾan, most of these tools are external to the Qurʾanic
text itself, although there are cases where a Qurʾanic verse is taken to explain the meaning of
another. (It is noteworthy that, holding that ‘the Qurʾan explains itself ’, some jurists insist on
explaining Qurʾanic statements by internal Qurʾanic evidence before resorting to evidence
external to it.) In the case of the Hadith as an independent source of Islamic law, ambiguities
in the Prophet’s statements are frequently settled by reference to his own practice. As a legal
source complementing the Qurʾan, however, the Hadith is itself one of the most important
tools that are used to deal with Qurʾanic ambiguities. We will discuss later an example that
illustrates how evidence from the Hadith is used in dealing with ambiguities that arise from
Qurʾanic statements, although we do not lack instances where the evidence from the Hadith
seemed to contradict the Qurʾanic evidence on a particular case (thus complicating the issue
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rather than resolving it), or instances where some traditions contradicted other traditions
dealing with the same subject (confirming, once more, scepticism on the origin of traditions).
For now, we discuss two other tools used in Qurʾanic exegesis: the ‘causes of revelation’ (asbāb
al-nuzūl) and abrogation (naskh).
Presuming that the occasion which prompted the revelation of a certain Qurʾanic verse
can provide clues for the intended meaning of this verse, Muslim jurists have compiled works
that preserve reports about those occasions. A case in point is Q. 2:232: ‘And when you have
divorced women and they have reached their term [i.e. ‘the waiting period’], do not prevent
them from marrying their husbands if they agree among themselves according to maʿrūf.’ 7
Without external clues, this verse is difficult to interpret. It is not clear, for instance, to
whom ‘their husbands’ refers here, given that the women mentioned in the verse are already
divorced and have completed their waiting periods.8 Reports about the circumstances which
led to the revelation of this verse, however, removes any uncertainty about that which it seeks
to convey. According to these reports, a man divorced his wife. After the end of her waiting
period, he went to her guardian, who was her brother in most reports, and her cousin in one
report, asking to re-marry her. The wife was happy with this offer, but her guardian refused
and the verse was revealed. One thing we learn from this report is that the addressee in the
first part of the verse (And when you have divorced women) is not the same addressee of the
second part (do not prevent them …).9
Incidentally, this verse prompted a debate on another issue that may not be intended by
the verse. Muslim jurists are divided between those who believe that only virgin girls cannot
enter into a marriage without the consent of their guardians, whereas previously married
women (divorcees or widows) can, and those who believe that any woman cannot get mar-
ried without the consent of her guardian. The second group of jurists refer to Q. 2:232 for
support, for the verse seems to imply that even non-virgin women still need their guardian’s
approval; otherwise, the women in the report could simply have re-married their divorcee
even if their guardian did not approve of the marriage. A possible interpretation, of course,
is that although a woman could do that in principle, she still did not want to go against her
guardian. We may wonder, however, how it was possible for Muslim jurists to debate this
particular point, given that the verse is clear in that guardians should not prevent women
from re-m arrying their ex-husbands. But this is another example of a disagreement about the
meaning of ‘do not’ here. Jurists who take this to indicate complete prohibition would say
that guardians cannot prevent women from re-marrying. In other words, if they do prevent
them, they would be violating a Qurʾanic rule. But would this make them only sinners, in
the religious sense of the word, or put them under the purview of the law that the judge or
ruler can enforce? On the other hand, jurists who take this to be a mere admonition would
say that guardians can still prevent women from re-marrying and those women cannot in
that case re-marry their ex-husbands against the will of their guardians, assuming, again,
that even a previously married woman must secure the approval of her guardian to re-marry.
In this reading, failing to obey the Qurʾanic proscription would make one a sinner. Jurists
making this argument may find support in the remainder of the same verse, ‘with this [the
command in the verse] is admonished he among you who believe in God and the Last Day;
this is more virtuous for you and purer, and Allah knows and you do not’.
Another tool that jurists employ in interpreting the Qurʾan is abrogation (naskh). Ac-
cording to this, God has changed some of His laws when He revealed the Qurʾan to the
Prophet Muhammad over 22 years. Accordingly, if two Qurʾanic verses appear to be in sharp
contradiction to each other and cannot be reconciled, a jurist can assume that one of them
must have abrogated the other. The challenge here is to know which verse is abrogated and
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which abrogating. The Qurʾan itself is not helpful here because its chapters (sūras) and verses
(āyas) were not recorded according to the order of their revelation. (It is believed that every
time he came to the Prophet with a new revelation, Gabriel would tell him about the exact
location of that revelation in the Qurʾan, which could be anywhere.) Reports from early
authorities (such as the Prophet Muhammad’s Companions and their followers, the tābiʿūn)
are not usually decisive here, which is why abrogation was and remains a contentious issue
among jurists, and those who accept it (the majority) regularly disagree on the verses that
each of them believe were abrogated.10
A classical example of abrogation is Q. 2:184: ‘And for those who can do it [i.e. fast during
the month of Ramadan, but do not fast] is a ransom, the feeding of a poor person.’ From re-
ports about the time when Muslims began to fast during Ramadan, we learn that fasting was
optional. Those who are capable of fasting but do not want to fast can feed a poor man for ev-
ery day of Ramadan in which they do not fast. This option was later abrogated by Q. 2:185,
‘And whosoever of you is present in the month, let him fast it.’ Now, every Muslim has to
fast all days of Ramadan and cannot choose not to fast in return for feeding a poor person.11
Another oft-cited example of abrogation is Q. 3:43: ‘O you who believe, do not approach
prayer when you are drunken’, a verse that jurists unanimously agreed has been abrogated
by Q. 5:90, ‘O you who believe, intoxicants and gambling … are an abomination of Satan’s
work, so leave it aside that you may be successful.’ According to the first verse, Muslims can
drink provided that they are not drunk at the times of the five daily prayers. After the reve-
lation of the latter verse, they are not allowed to consume intoxicants at any time, according
to the dominant view in Islamic jurisprudence.12 It must be pointed out that reports about the
causes of revelation of certain verses or of the abrogation of other verses can and have been
rejected by some jurists and accepted by others. The rejection of these reports is based on
the same ground that led some jurists to reject traditions transmitted by single t ransmitters –
that is, the authenticity of these reports are only probable at a time when they are used to
interpret Qurʾanic verses (qualifying them at times and contradicting them at other times)
that may otherwise appear clear in meaning. Against the view predominant in Sunni Islam,
some jurists, in early and modern Islamic history, have insisted that traditions and reports that
significantly qualify or contradict a Qurʾanic verse must be rejected as unauthentic.
3 The Qurʾan and the Hadith in action: the case of Q. 5:38

As mentioned previously, in the classical Sunni narrative of the development of Islamic law,
the Prophet Muhammad, through his Sunnah (practice) and Hadith (sayings), was the source
of the meaning of the Qurʾan. In this narrative, Q. 16:44 (‘And We have revealed to you the
Reminder that you may make clear to mankind that which has been revealed to them’) as-
signs to the Prophet the role of explaining the Qurʾan to his followers. ‘Wisdom’, in Q. 4:113
(‘And Allah has revealed to you the Scripture and [the] wisdom’) is taken to refer to the
Prophet’s Sunnah/Hadith, which is considered as both an independent source of the law
as well as a practical embodiment and verbal elaboration of the teachings of the Qurʾan.
Q. 35:3–4 (‘Nor does he speak out [of his own] desire. It is naught but revelation that is
revealed’) guarantees, in this view, that whatever the Prophet says, pertaining to religious
matters, as Muslim scholars took the verse to mean, is divinely sanctioned and is not a prod-
uct of his own personal inclinations and views.
On the other hand, many modern (Muslim and non-Muslim) scholars of Islamic law
hold that the Prophet’s Sunnah was only one of many normative sunnahs that existed in early
Islam, and that a considerable amount of Hadith (if not all of it) was not in fact uttered by
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Prophet Muhammad himself. An explanation that some of these scholars provide for the
wholesale fabrication of Hadith in early Islam is precisely its usefulness as a hermeneutical
tool: Hadith was needed to interpret the Qurʾan and settle disagreements about its meaning.
This process sought at times to circumvent the ‘literal’ reading of some Qurʾanic rulings or
to legitimize legal views that had already existed from early Muslim generations, as has been
pointed out earlier. In either case, in its capacity as ‘elucidator’ of the Qurʾan, the Hadith
came to be, among other things, a major determinant of the meaning of the Qurʾan, a regular
modifier of some of its rulings, and a source of knowledge of the abrogated and abrogating
verses. Setting aside the issue of when the Hadith actually became a source of Islamic law, the
following example aims to illustrate its role as a legal source alongside the Qurʾan, assuming
that the traditions found in medieval works of Islamic jurisprudence were available to early
Muslim jurists.
Q. 5:38 (‘As for the thief, male or female, cut off their hands as a punishment for what they
have earned’) prescribes cutting off the hands of thieves. A ‘literal’ reading of the word thief
in this verse would include in its scope any person who unlawfully takes anything that is not
his or her. If taken literally, in this sense, this verse would mean that a person who steals even
a penny is punished in the same way as a person who steals a large sum of money. Similarly, a
starving person stealing to remain alive would be punished in the same way as an evil person
who steals out of mere greed. Readers of this verse may also ponder the case of someone
taking something that he does not assume to be the personal property of anyone, while it may
be obvious for its owner and for others that it belongs to someone. Theft, similar to all human
phenomena, has its grey area, and its demarcations may differ from one culture to another.
In addition to the Qurʾanic ruling on theft, Muslim jurists had other pieces of evidence to
use. The verse and these pieces of evidence generated many controversies on various aspects
of theft and its Qurʾanic punishment. Suffice it to mention that this subject is discussed in
a medieval work of Islamic jurisprudence – al-Mughni of the Hanbali scholar Ibn Qudama
al-Maqdisi – in a large number of pages.13 In addition to Q. 5:38, Ibn Qudama mentions
many Prophetic traditions. In one of these, the Prophet states explicitly that as a punishment
prescribed by God, cutting off the hands of thieves cannot be averted and would be applied
even to the Prophet’s own daughter if she were to commit theft. The command in the verse
(cut off ), then, denotes obligation. In another tradition, the Prophet says that this punishment
is carried out only if the value of what is stolen exceeds a quarter of a dı̄nār, a gold coin used
in the Prophet’s time. In a third tradition, the Prophet states that the Qurʾanic punishment
for theft does not apply to embezzlement (ikhtilās) or treachery (khiyāna), obviously in finan-
cial transactions. Furthermore, the Prophet states that neither does that punishment apply to
stealing fruits that are still on the trees, or to denying an item that one has borrowed from
another ( jah ․d al-ʿāriya). In yet another tradition, the Prophet mentions the conditions under
which a person stealing fruits would be punished. According to this, the fruits have to be
collected in a container, the unlawful taking of which constitutes theft.
But in addition to these textual sources, the bulk of Ibn Qudama’s discussion of theft
reports views of early Muslim scholars on various aspects of the crime and its punishment.
We have seen that the Qurʾan speaks about theft without defining it. Nor is it defined in any
Prophetic tradition. It becomes the duty of jurists, then, to define it, which they did elab-
orately. Theft is not defined as simply taking something that belongs to another. The item
that is taken must be kept in a safe place for its removal and appropriation from that place
to be considered theft. Accordingly, and perhaps inspired by the tradition that distinguishes
between theft and embezzlement, jurists decided that all forms of misappropriation, malfea-
sance, fraudulence, chicanery and other acts that involve taking something that belongs to
134
others do not constitute theft. Even looting, plundering and pick-pocketing were controver-
sial, for the money or property taken in these cases is not stealthy removed from a safe place
where its owner has kept it, as these jurists understood theft.
Furthermore, we have seen above that the Prophet states that whereas taking fruits from
the trees is not theft, taking them from a container is. Jurists used this and other pieces of
evidence to develop the notion of ․hirz: a safe place where one keeps his money and valuable
items. The ․hirz not only removes any doubt about the ownership of the stolen item, but it
also proves that the thief had the will and made the effort required to steal it. But if that is so,
then ․hirz itself has to be defined. This was done by the jurists in a way that demonstrates their
awareness of how the notion of ‘safe place’ can only be culturally defined. In other words,
what is considered a safe place to keep one’s valuables in a certain locale or region may not be
considered as such elsewhere. Ibn Qudama says unequivocally that that which is considered
․hirz depends on [local] customs (al-h․irz mā ʿudda ․hirzan fı̄-l-ʿurf ).14 From his lengthy treatment
of this point we can conclude that it is only the taking of things that are protected or super-
vised that can be treated as theft. The negligence of the owner to protect his or her property
may in fact absolve the thief.15
In addition to this, jurists insisted that whatever is stolen must be money or something
equivalent to it. Stealing a slave, for example, is thus theft, but kidnapping a free man is not
(unless it happens that he carry items that exceed the quorum of theft mentioned above, a
quarter of a dı̄nār). Here, a full list is given of items that are not considered money or equiv-
alent to it. Water, for instance, cannot be stolen, for it is usually something that people share,
or perhaps something that people should not refuse to share. A copy of the Qurʾan cannot
be an item for theft, for the Qurʾan, in one view, should not be put on sale to begin with
(and again, it may be something that should not be denied a Muslim). Nor would things pro-
hibited in Islam qualify as items that can be stolen; for example, wine, pigs or even musical
instruments (the prohibition of which is a subject of controversy in modern Islam, of course).
The assumption here is that these items have no value in an Islamic society.
Ibn Qudama mentions views on other aspects of theft. Just as theft does not apply to
certain items, it similarly does not apply to certain individuals. These individuals include
parents who take their children’s property. This is based on a Prophetic tradition in which the
Prophet tells someone: ‘You and what you own belong to your father.’ This rule was inevita-
bly extended to mothers. Added to the list of persons who cannot steal are sons, spouses and,
in some views, any person that a man cannot marry (which would include relatives by blood
or marriage). The logic of this last category is that these relatives may believe that they are
entitled to take the property of their relatives.16 The list also includes slaves, most likely on the
assumption that a slave may not know what he is allowed to take and what not, or that no part
of his master’s house could constitute a ․hirz for someone actually living in the house. Finally,
the list includes any Muslim stealing from the public treasury, for he may believe himself
entitled to take the money given that he does have a share in the treasury. And of course, a
person who is starving cannot be punished for theft if he takes something to feed himself.
Among the other conditions that must be met so that a removal of something can be consid-
ered theft is that the person whose property is stolen has to claim it. The implication here is that
person may deny his ownership of the property or refrain from asking for it; in either case the
thief is spared. Furthermore, if the owner of the property testifies that the stolen item actually
belonged to the person believed to have unlawfully taken it, that person is again absolved.17
Now proceeding to the actual punishment, Ibn Qudama mentions that the hand of a thief
is cut off only when two reliable witnesses testify against him or if he confesses. In the former
case, the witnesses have to describe in clear detail the item allegedly stolen and the safe place
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where it was kept. If these witnesses disagree on any detail, their testimonies are rejected
and the punishment is not inflicted.18 As for the latter case – confession – the person has to
confess twice or thrice (and in the case of a slave, four times), based on a tradition where
the Prophet asked a person twice or thrice if he had indeed committed theft. Furthermore,
in his confession, the defendant has to describe the theft and the stolen item elaborately.19 It
is striking, however, that a defendant is neither encouraged to confess, nor prevented from
withdrawing his confession before the infliction of the punishment. In the tradition just
mentioned, the Prophet puts the question to the person admitting theft in these words: ‘I do
not believe that you have committed theft’, a wording from which jurists understood that the
Prophet was trying to dissuade the person from confessing. Jurists, therefore, should actively
encourage thieves to abstain from confession (on the obvious assumption that they return the
stolen items and repent), Ibn Qudama says. Furthermore, if the case between the thief and the
person whose property is stolen is settled before it reaches the ruler, the punishment cannot
be inflicted.20 And even after the confession, the person whose property has been stolen must
go to the judge or ruler and claim his property,21 as has been pointed out previously.
Finally, the actual cutting of the hand must be implemented in the least painful way. Cut-
ting should not be implemented in extreme weather, warm or cold. The punishment cannot
be inflicted upon a sick person or on a pregnant woman, for this would cause harm to both
herself and her innocent baby.22 And if a person steals multiple times and then gets caught,
only one of his hands are to be cut off,23 and if he happens to have one hand (the other be-
ing already cut or paralysed), he is absolved from the punishment.24 Some jurists have also
expressed preference to cut off the left rather than the right hand, the latter being the more
useful for most people.25 And if a thief steals, has one of his hands cut, and steals again, his
leg rather than his other hand is to be cut. Despite a tradition where the Prophet is reported
to have said that after cutting one hand, a leg is cut followed by the other hand followed by
the other leg (and then execution), ʿAli b. Abi Talib is reported to have said that cutting the
other hand is tantamount to murdering the thief, for without either hand he would not be
able to eat or wash himself.26
This overview of the aspects of theft that Muslim jurists discussed may give readers an
impression that they were motivated by a desire to avert the rather severe and irrevocable
Qurʾanic punishment for theft. This, of course, remains a strong possibility that can be
evinced by their insistence that the cutting cannot be an occasion to further torture the
thief, or that the thief may not have his other hand cut if one of his hands is already cut or
paralysed, or, more significantly, that the thief should be encouraged to either not confess
or withdraw his confession. What these jurists seem to be doing is restricting the definition
and conditions of theft while broadening the categories of people who cannot be treated as
thieves even when they appear to be stealing. Additionally, these jurists seem to be advo-
cating the abstention from inflicting the punishment in the existence of any doubt. To fully
understand this point, there is another tradition that is present everywhere in Ibn Qudama’s
discussion of theft although in this particular context he does not attribute it to its presumed
origin, the Prophet Muhammad.
In a tradition that is crucial in all discussions over Qurʾanic punishments (h․udūd), the Prophet
is reported to have said that these punishments should be averted by doubt (shubuhāt). The
word that the Prophet uses for doubt is in the plural, suggesting that it includes various forms
of doubt. Applying this rule to our subject, jurists insisted that to inflict the Qurʾanic punish-
ment for theft, it must be proven beyond doubt that the act of the person accused of theft does
indeed fall within the category of theft, which, as we have seen, is defined in a way that excludes
many acts that we would otherwise regard be regarded as [a kind of ] theft. Furthermore, it
136
must be confirmed that the item stolen had reached the required value at the time of the act,
that it was absolutely clear that the item belonged to someone (which requires that it be kept
in a safe place, or ․hirz), that it is something of value in the person’s social context, and that the
owner of the item confirms that it has been stolen from him. Furthermore, and perhaps more
significantly, the person accused of theft cannot be one who may believe himself entitled to
take that which he is accused of having stolen. If a jurist, now acting as judge, has any doubt
regarding any of these points, he must, according to this generous reading of the tradition,
rule out the punishment prescribed in the Qurʾan.
This overview of the juristic discussions over various aspects of theft is, admittedly, se-
lective. There is no claim here that Muslim jurists agreed that pick-pocketing, for example,
is not theft, or that taking the property of a blood relative is not theft. Muslim jurists dis-
agreed on almost all these issues. They also disagreed over some of the Prophetic traditions
mentioned in the context of this subject for the reasons mentioned earlier; particularly, their
disagreement over the authenticity of some of these traditions and on whether they should be
used to qualify the Qurʾanic verse, which they accept as the primary source of the ruling of
Islamic law on theft. Jurists who disagreed with any of the views presented above appeal pri-
marily to the generality of the Qurʾanic verse and reject as un-authentic Prophetic traditions
used by other jurists to qualify certain aspects of theft (such as its definition) or to make its
conditions too stringent to be easily applied. Even when they accepted the same traditions,
there was still room for disagreement over their meaning, relevance and applications. For
example, whereas scholars accepting the tradition about embezzlement and treachery had to
exclude these from the category of theft, they did not need to exclude other acts based on
analogy with the acts that the Prophet has mentioned. And even when all jurists have ac-
cepted the ‘Avert the ․hudūd on the basis of doubt’ tradition, what constitutes doubt remained
a subject open for discussion. Although jurists were clearly following and seeking inspiration
from the textual sources at their disposal, their treatment of this subject demonstrates that the
process of using these sources was quite complex, to say the least.
A last point to make is this: to understand the Qurʾan and the Hadith, Muslim scholars
knew that they needed to authenticate their understanding of the Arabic language by ex-
amining how the Arabs used their language at the time of the revelation of the Qurʾan. We
see this clearly in al-Shafiʿi’s Risala, a work on legal theory that is generally considered, by
medieval Sunni scholars and some modern scholars, the first of its kind. But this was not as
straightforward as it may sound, not only because the sources available for these jurists on
the use of Arabic at the time of revelation were limited (primarily pre-Islamic poetry), but
also because they knew that there were no strict or standard linguistic conventions or lex-
ical definitions. The Hadith, as an exegetical tool, was thus crucial to explaining Qurʾanic
statements, implying that these statements were not completely clear even to the immediate
audience of the Qurʾan. Accordingly, failing to find evidence for a clear definition of theft at
the time of the Qurʾan, these jurists realized that they had to define it in ways that contravene
Weiss’s view on the ability of language to convey meaning without interpretation. It is true
that language here determined the kind of offence that we are dealing with, but it did that in
terms that jurists found, or liked to find, very unspecific. When people heard the word theft
in the verse they did realize that they were dealing with a specific kind of criminal offence.
It is not anything that we would call murder, rape, adultery or blasphemy, for example.
However, they were also demonstrably aware that certain acts (such as embezzlement, usur-
pation or pick-pocketing) may not fully correspond to the ‘ideal type’ of theft, whatever that
may be. Here, interpretation is indispensable, and this interpretation cannot occur within
the gamut of the text itself, for there is no such gamut to begin with absent evidence for a
137
Amr Osman
water-tight definition of theft. Here, legal reasoning, cultural norms, social considerations
and notions of justice all contribute to the process of assigning meaning to the texts. In this,
the Qurʾan and the Hadith are simply similar to all other legal texts.
Conclusion
This chapter has outlined how the Qurʾan and the Prophet Muhammad’s Sunnah/Hadith
were used as Islam’s primary legal sources. It has given specific examples that illustrate some
of the intricacies of each of these two sources as well as the relationship between them as
complementary legal sources. What we have seen in this chapter is this: the Qurʾan states a
ruling, typically in general terms, or in terms that are made to look general; the Hadith is
used to qualify the Qurʾanic ruling in various ways; and Muslim jurists regularly problema-
tize the subject on the basis of their linguistic and hermeneutical conventions, their social
and cultural values, and their understanding of the objectives of the legal sources. Readers of
this chapter hopefully realize now that, more often than not, it is not only inaccurate, but is
actually utterly wrong to present a ruling as Islam’s ruling on a given subject based on what
the Qurʾan says or what the Prophet Muhammad says. What these two sources ‘say’ have to
be, have been and will continue to be worked out by Muslim jurists, in multiple and varied
ways typical to Islam’s legal history.
This leads us to a crucial aspect of Islamic law, and one that is intimately related to the
hermeneutics of the Qurʾan and the Hadith as legal sources. Most Muslim jurists believe that
the results of their engagement with these textual sources are probable rather than certain.
This understanding has resulted in much tolerance to differing readings of these texts and of
conflicting legal views, as long as they ensue from a studious and informed effort to work out
the intended meanings of these texts. As Weiss has put it, ‘a tentatively constructed rule has
the full force of a bona fide rule of law if the exegesis upon which it is based is diligent and
conscientious’.27 Muslim jurists, however, were not nihilists; they did believe that if language
is used soundly (that is, according to its conventions) in a certain text, then this text has a
basic meaning. This is what makes revelation, and indeed any communication, possible, as
Weiss rightly points out. However, this does not mean that there is no room for disagreement
over deeper layers of meaning. Furthermore, given that Muslim jurists, more often than not,
do not work with a single textual evidence, the question of how to reconcile various and
different pieces of evidence requires, by necessity, that the meaning of each one of them be
worked out in relation to other texts. It is this process of reconciliation that makes it possible
for jurists to even change their views on certain issues. If we add to this the uncertainty men-
tioned above regarding the transmission of the Hadith, the end result is a legal system that
readily recognizes and acknowledges its uncertainties, but also boasts its excellence within
the perceived parameters of human capability and rationality.
This notwithstanding, a minority view in Islam’s legal history has held that if the conven-
tions of the language of communication are stringently followed (presumed to be the case with
the Qurʾan and the Hadith), then we can use these same conventions to understand the mean-
ing intended by the speaker (God, directly or indirectly in both textual sources of Islamic law)
with complete certainty. In this view, two readings of the same text (again assuming that the
speaker uses language soundly, in the sense of following its conventions) cannot be simultane-
ously valid. This view was best presented by scholars of the Zahiri madhhab, a school of Islamic
law whose hermeneutics is generally believed to be ‘literalist’, a notion that recent scholarship
finds problematic. Consistent with this approach to language is the Zahiri conviction that
traditions transmitted by single transmitters still establish absolute or apodictic knowledge
138
provided that their reliability is established. This belief in the necessity of certainty is organ-
ically linked to some theological views, particularly the notion that it contradicts divine jus-
tice to hold believers accountable for not following texts with inherently uncertain meaning.
This view, however, has barely survived in the soil of the legal system the textual sources of
which are the Qurʾan and the Hadith.
Notes
1 See, for instance, Jonathan A. C. Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World
(Oxford: Oneworld, 2009), 150–1, and Daniel W. Brown, Rethinking Traditions in Modern Islamic
Thought (Cambridge: Cambridge University Press, 1996), 43–4. See also Ahmad Hasan, ‘The Sources
of Islamic Law’, Islamic Studies 7, no. 2 (1968): 176, and Bernard Weiss, ‘The Primacy of Revelation in
Classical Islamic Legal Theory as Expounded by Sayf al-Din al-Amidi’, Studia Islamica 59 (1984): 83–4.
2 On the view that disagreement was always on the interpretation of sources rather than on the ques-
tion of whether to accept them in principle, see Hasan, ‘The Sources of Islamic Law’, 176.
3 For this, see, for instance, Sherman Jackson, ‘Fiction and Formalism: Toward a Functional Analysis
of Us․ūl al-Fiqh’, in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden: Brill, 2002).
4 Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dı̄n al-Āmidı̄
(Salt Lake City: University of Utah Press, 2010), 87.
5 Ibid., 94.
6 For the views of medieval Sunni jurists on the issues of the scope of terms and denotation of the
imperative, see Weiss, The Search, 382–439 and 322–81, respectively. See also Aron Zysow, The
Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta, GA: Lockwood
Press, 2013), 60–96.
7 The rather challenging term maʿrūf can be and is translated variously according to each translator’s
understanding of its meaning. Translations include ‘in kindness’, ‘lawfully’ and ‘equitably’. This in
itself is an example of a Qurʾanic term that has been interpreted in various ways by Muslim exegetes
and one that has not been duly explained in any Prophetic tradition.
8 The ‘waiting period’ is usually three menstrual periods, during which the divorce is not final and
husbands can, unilaterally, ‘return’ to their wives.
9 Muslim exegetes mention a reading of the verse that is obviously not based on the reports about
the causes of revelation of this verse. According to this, the addressee in the verse is one. He is the
ex-husband of the woman and happens to be her guardian at the same time (e.g. her cousin). What
the verse says is that if he divorces her he should not (cannot?) prevent her from marrying another
person so as to, according to the jurists offering this reading, inherit her property should she die.
We may wonder, of course, why the Qurʾan calls that other person a husband when he is not yet
married to the woman. No wonder that this reading has not fared well in Islamic jurisprudence.
10 This subject, we may note, has a direct link to the subject of the occasions of revelation. Crucial
to the notion of abrogation is the chronology of revelation, knowledge of which requires knowl-
edge of when each verse was revealed, for which reports about the occasions of revelation may be
helpful.
11 It must be added here that Q. 2:185 addresses the question of the sick and of travellers. According
to this verse, they should make up the missed fasting days at a later time.
12 For more on this subject, see A. J. Wensinck’s discussion of the ‘juridical aspects’ of ‘khamr’ (intox-
icating beverages) in Encyclopedia of Islam, 2nd edn (1960–2007), vol. 4, 994–7.
13 Ibn Qudama al-Maqdisi, Al-Mughni, vol. 12 (Riyadh: Dar ʿAlam al-Kutub, 1997), 415–72.
14 Ibid., 427.
15 Ibid., 426–39.
16 The reason why this belief changes the way their act is interpreted will be explained later.
17 Ibid., 452.
18 Ibid., 464.
19 Ibid., 465.
20 Ibid., 467.
21 Ibid., 471.
22 Ibid., 442.
23 Ibid., 443.
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Amr Osman
24 Ibid., 448.
25 Ibid., 445.
26 Ibid., 446–7.
27 Weiss, ‘The Primacy of Revelation in the Classical Islamic Legal Theory as Expounded by Sayf
al-Dîn al-Āmidî’, 96–7.

Brown, Jonathan A. C. Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oxford: Oneworld,
2009).
Burton, John. An Introduction to the Hadith (Edinburgh: Edinburgh University Press, 1994).
Gleave, Robert. Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory (Edinburgh:
Edinburgh University Press, 2013).
Hallaq, Wael B. The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press,
2005).
Ibn Qudama al-Maqdisi. Al-Mughni (Riyadh: Dar ʿAlam al-Kutub, 1997).
Mattson, Ingrid. The Story of the Qurʾan: Its History and Place in Muslim Life (Oxford: Blackwell Pub-
lishing, 2008).
Motzki, Harald (ed.). Hadith: Origins and Development (Farnham, Surrey: Ashgate Publications, 2004).
Motzki, Harald. Analysing Muslim Traditions: Studies in Legal, Exegetical, and Maghāzı̄ Hadith (Leiden:
Brill, 2012).
Osman, Amr. The Z ․ āhirı̄ Madhhab (3rd/9th–10th/16th Century): A Textualist Theory of Islamic Law
(Leiden: Brill, 2014).
Peters, Rudolph, and Bearman, Peri. The Ashgate Research Companion to Islamic Law (Farnham, Surrey:
Ashgate Publications, 2014).
Rippin, Andrew, and Knappert, Jan (ed. and trans.). Textual Sources for the Study of Islam (Chicago:
Chicago University Press, 1986).
Saeed, Abdullah. Interpreting the Qurʾan: Towards a Contemporary Approach (London and New York:
Routledge, 2006).
Weiss, Bernard G. ‘The Primacy of Revelation in the Classical Islamic Legal Theory as Expounded by
Sayf al-Dîn al-Āmidî’. Studia Islamica, 59 (1984): 79–109.
Weiss, Bernard G. The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dı̄n al-Āmidı̄
(Salt Lake City: University of Utah Press, 2010).
Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Exeter:
Lockwood Press, 2013).
140
7
The emergence of the major
schools of Islamic law/madhhabs
Labeeb Ahmed Bsoul
From prior to the first quarter of the second century to the mid-third century AH (eighth–
ninth century AD), reports and transmitted legal opinions reflected variant legal rulings.
The Companions issued legal opinions in accordance with what they had heard from the
Prophet, and the Successors followed their example by relating what they had heard from
the Companions.1 This practice, conducted through various methods of interpretation, was
based on the principle of tolerance, because no fixed methodological interpretations existed
at that time, only the doctrine of ʿAtaʾ b. Yasir (d. 103/721), the doctrine of the Medinan ju-
rists, and similar groupings.2 Thus both generations utilized what existed: the statements and
opinions of the Prophet and the early Companions, as well as their own Ijtihād. Differences
of opinions naturally arose, for not all of them possessed the same level of knowledge and
conservation, the same method of reasoning/diligence and consideration, or the same model
of understanding and elicitation.3
The following generation of jurists wrote down their schools’ doctrines in order to ac-
count for and explain the preceding information. They focused on the knowledge produced
in their regions: Malik b. Anas focused on the learning of Medina, al-Shafiʿi on that of
Mecca, Abu Hanifa and Sufyan al-Thawri on that of Iraq, al-Awzaʿi on that of Syria, and al-
Layth b. Saʿd on that of Egypt.4 Ahmad b. Hanbal and Dawud b. ʿAli, who emerged in the
ninth century and whose schools of thought were codified and followed, had a reverse impact
on the jurisprudential direction of Baghdad.5 These regionally significant jurists formulated
the crucial elements of raʾy, or considered opinion, and athar, or traditional material.6
Several of these jurists are considered to be founders of schools of jurisprudence, includ-
ing Sufyan b. ʿUyayna (d. 198/814) of Mecca, the ‘scholar of the Hejaz’; Ishaq b. Rahawayit
(d. 238/852), the ‘scholar of the East and Khurasan’; and Abu Thawr Ibrahim b. Khalid
(d. 240/854), a prominent Baghdadi jurist. These schools of legal thought were those of ahl
al-Sunnah, the majority of Muslims, but not all of them were fully codified. Some were only
partially codified, and others were never codified. Their opinions and views were noted, yet
because their disciples did not write them down, the only record of their existence is in the
works of other jurists. The surviving legal schools are based on the legal thought of the Sunni
jurists Abu Hanifa, Malik, al-Shafiʿi, and Ibn Hanbal. Other surviving schools of that era
are the Imāmı̄ or Twelver Shiʿi school, attributed to Jaʿfar al-Sadiq (d. 148/765), the Zaydi
141
Labeeb Ahmed Bsoul
Shiʿi school, attributed to the Imam Zayd ibn ʿAli (d. 122/740), and the Ibadi Khariji school,
attributed to ʿAbdullah b. Ibad al-Tamimi (d. 80/699) and still followed by some Tunisians,
Algerians, and Omanis. These founding figures, later jurists, and the related processes of
recording legal scholarship, deriving subsidiary rulings using the principles of legal herme-
neutics (us․ūl al-fiqh), and the application of the law will be given below.
The first leading jurisprudent: Abu Hanifa al-Nuʿman (150/767)

Abu Hanifa al-Nuʿman b. Thabit b. Zuti al-Kufi (80–150/699–767)7 was ‘the master of the
adherents of personal judgement (imam ahl al-raʾy)’ and ‘the jurist of Iraq’. He was one of Islam’s
most distinguished figures and the founder of the Hanafi school. He was born in Kufa and lived
for 52 years under the Umayyads, and for a further 18 under Abbasid rule. During this period,
the Companions Anas b. Malik in Basra, ʿAbdullah b. Abi Awfa al-Ansari in Kufa, Abu al-
Tufayl ʿAmir b. Wathila in Mecca, and Sahl b. Saʿd al-Saʿidi in Medina were still alive, though
extant literature contains no definitive report about any of them. However, such Successors as
al-Shaʿbi, al-Nakhaʿi, and ʿAli b. Husayn were also present. However, Abu Hanifa did not seek
out their knowledge, for at that time he was a silk fabric tailor who had his own workshop.
Abu Hanifa was a disciple of al-Hakam b. ʿUtayba, the grand master of Kufa, and studied for
18 years under Hammad b. Abi Sulayman, who transmitted material from Ibrahim al-Nakhaʿi
and ʿAmir al-Shaʿbi. Drawn to the jurisprudence characteristic of Kufa, which was based on
analogical reasoning (qiyās) and personal judgement (raʾy), he succeeded Hammad upon his
teacher’s death. He was familiar with Meccan jurisprudence through ʿAtaʾ b. Abi Rabah, the
jurist of the Successors and the leader of what had been Ibn al-ʿAbbas’s study circle in the
Grand Mosque. He learned Medinan jurisprudence through Shihab al-Zuhri, who memorized
the learning of ‘the seven jurists’ of Medina, Nafiʿ, the chief transmitter of material from the
renowned hadith scholar ʿAbdullah b. ʿUmar, Muhammad b. al-Munkadir, the distinguished
Qurʾanic reciter, and the jurist and Qurʾanic reciter Yahya b. Saʿid al-Ansari. He was also in
touch with the three leading masters of Ahl al-Bayt: Zayd b. ʿAli, Muhammad al-Baqir b. ʿAli b.
al-Husayn, and his son Jaʿfar al-Sadiq. The prominent scholars Sufyan al-Thawri and ʿAbdullah
b. Mubarak testified that he had the widest range of jurisprudential knowledge of his time, a
view echoed by al-Shafiʿi and Malik. People said that all previous jurisprudents were like chil-
dren compared to him, and that whoever was looking for a serious debate should go to him.
Abu Hanifa, distinguished by his expansive use of analogical and deductive reasoning
(istinbāt․), dedicated his efforts to imposing and estimating the occurrence of cases. He often
employed rational argument and was open to learning opinions superior to his own. When
he encountered one, he would allow it to be presented and then adopt it. When he debated
with other jurists about legal analogy, they would often agree with him out of fear that he
would persuade his opponent. The Caliph al-Mansur twice offered him an official position.
Yazid b. ʿUmar b. Hubayra, the Umayyad deputy in Iraq, had him whipped when he de-
clined to serve as judge in Kufa. When Abu Hanifa refused the caliph for the second time,
the latter jailed him and let him die in prison. It is reported that the caliph poisoned him for
his affiliation with Ibrahim al-Nakhaʿi, and thus he is considered a martyr.
Abu Hanifa explained his approach to Ijtihād as follows. He would adopt what was in
the Qurʾan, provided that it applied directly to the issue at hand. If he did not find anything
applicable, he would then consider the authentic Prophetic Sunnah and, if he found noth-
ing there, the sayings of the Companions. Of these sayings, he would adopt that which was
relevant and ignore the rest. He followed the opinions of the Companions up until Ibrahim
al-Nakhaʿi, al-Shaʿbi, Ibn al-Musayyib, and other trustworthy figures. Overall, Abu Hanifa
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Emergence of major schools of Islamic law
relied on the Qurʾan, the Prophetic Sunnah, consensus, legal analogy, the Companions’
sayings, juristic preference (istih․sān), and custom (ʿurf ). His disciples realized that his method-
ological approach, as well as the secondary bases of his doctrine, derived from the opinions
he had constructed to address specific cases. Some scholars criticized his approach and doc-
trine, which depended on devising legal rules to overcome certain limitations (al-makhārij
min al-mad․āyiq). Al-Bukhari allocated a special section to Abu Hanifa’s views in his famous
collection of hadith, al-Jamiʿ al-Sahih.
Abu Hanifa stressed the acceptance of those hadiths that supported his use of analogy and
personal judgement, but declined to accept solitary traditions (akhbār al-āh․ād) on account of
their problematic nature. He preferred analogy and treated it as superior to solitary reports.
According to Ibn ʿAbd al-Barr, this caused many hadith scholars to criticize him in an ex-
treme manner. But his disapproval of solitary reports was inevitable because he accepted
interpretation. Al-Layth b. Saʿd also disapproved of Abu Hanifa’s use of hadith, as one can
see from his correspondence with Malik. Regarding the 70 questions he gathered, he noted
Abu Hanifa’s violations of the Sunnah.8
In his Introduction to History, Ibn Khaldun indicated that Abu Hanifa used approximately
17 hadith reports and tried to explain why he adopted a methodological approach that sub-
jected hadith to strict conditions of transmission. Moreover, Abu Hanifa responded to his
critics regarding his limited incorporation of hadith by stating that it did not affect one’s
doctrine because the Shariʿah is derived from the Qurʾan and Sunnah. Those who claim that
he referred less frequently to hadith should examine the hadith literature’s authority seriously
in order to reach authentic rulings.9
Abu Hanifa’s lack of reliance on hadith reports was due to his negative assessment of their
reliability. He rejected most reports on account of inherent defects and especially the criti-
cism of transmitters on account of defects of character, which required Ijtihād to avoid using
weak or unauthentic hadiths. This responsibility fell upon the mujtahids, as they specialized
in this field. Wakiʿ b. al-Jarrah, the hadith authority of Kufa, agreed with Abu Hanifa’s
opinion and transmitted many of his hadiths.10 Yahya b. Saʿid al-Ansari, who preferred Abu
Hanifa’s legal opinions, said, ‘We have never heard better judgment than that of Abu Hanifa’.
Yahya b. Maʿin, a leading hadith authority, also favored Abu Hanifa’s opinion and praised his
qualities, as did ʿAbdullah b. Mubarak, Sufyan al-Thawri, Makki b. Ibrahim, al-Shafiʿi, and
ʿAbdullah b. Dawud.11
Despite the many attestations to Abu Hanifa’s wide knowledge in the field, questions
did exist about his jurisprudence, and concerns were raised about his disciples and their
responsibility for recording his work. It appears that many legal works were published in
different regions during this period. One such work was a book on religious obligations by
Ibn Abi Layla, the chief mufti and judge of Kufa, who employed personal judgement in his
legal responsa.12 According to Ibn al-Nadim’s Fihrist, Ibn Jurayj, a prominent Meccan scholar,
wrote Kitab al-Sunan, which consisted of many chapters on purification, fasting, prayers,
and alms-giving.13 Similarly, al-Awzaʿi’s works Kitab al-Sunan fi al-Fiqh and Kitab al-Masaʾil
fi al-Fiqh were also published.14 Therefore, it is very likely that a prominent scholar such as
Abu Hanifa would have had similar published works. This supposition corroborates the state-
ments of some medieval scholars such as al-Khatib al-Baghdadi that Abu Hanifa authored
books on fiqh.15 Ibn Kathir, in his al-Bidayah wa-l-Nihayah, noted the report about ʿAbdullah
b. Mubarak keeping in his house a book authored by Abu Hanifa which he used to resolve
issues and which he showed to al-Awzaʿi. ʿAbdullah b. Mubarak stated, ‘Without God and
help from Abu Hanifa, I would be the same as other people’.16 According to Fuat Sezgin’s
Tārı̄kh al-Turāth al-ʿArabı̄, Sufyan al-Thawri had copied Abu Hanifa’s Kitab al-Rahn.17
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Labeeb Ahmed Bsoul
Since Abu Hanifa had many detractors, especially among the hadith scholars, Abu
Muʾayyad Muhammad b. Mahmud al-Khwarizmi (d. 665/1267) wrote a work to defend
him. He collected and arranged the hadith reports Abu Hanifa cited according to the legal
chapters, deleting the redundant ones and retaining their chains of authority, in order to
rebut the charges that Abu Hanifa rejected hadith and to gain recognition for his scholar-
ship in this field.18 To be specific, Abu Hanifa relied on 215 hadiths, which are presented in
al-Hajjuji’s edition of al-Futuhat al-Ilahiyya by Ibn ʿAbdullah al-ʿAlawi. This collection of 215
hadiths stands at odds with the report that Abu Hanifa used only approximately 17 hadith
reports in his legal scholarship.19
Among the works attributed to Abu Hanifa are, first, Kitab al-Fiqh al-Akbar, which begins
with the principle of monotheism. It has been said that his son Hammad transmitted the work
on his authority. The second book, Kitab al-Fiqh al-Absat, was transmitted on his authority by
his disciple Abu al-Mutiʿ al-Hakam b. ʿAbdullah b. Salama (d. 199/815). The third is Risala fi
al-Faraʾid, a title he shares with two famous contemporary jurists. The fourth work, Kitab al-
ʿAlim wa-l-Mutaʿallim, was compiled by his disciple Abu Muqatil Hafs b. Salm al-Samarqandi
(d. 208/823). Another work was known as Arbaʿ Was․āyā: was․iyya fi us․ūl al-Islam. Two varying
accounts of this was․iyya or ‘testament’ exist. The second was․iyya is addressed to Abu Hanifa’s
son Hammad, the third was․iyya to his disciple Yusuf b. Khalid al-Samati al-Basri, and the last
was․iyya to his disciple Abu Yusuf. Moreover, to Abu Hanifa are attributed two treatises for
ʿUthman b. Sulayman al-Batti (d. 143/760) and a debate with Jaʿfar b. Muhammad b. Ahmad
al-Rida (d. 148/765). Lastly, a Musnad Abu Hanifa was transmitted by Abu Yusuf, his son
Yusuf, and al-Hasan b. Ziyad al-Luʾluʾi (d. 204/819). According to Ibn Hajar al-ʿAsqalani,
this Musnad is really the Kitab al-Athar, which contained accounts of Abu Hanifa transmitted
by Muhammad b. Hasan. In the fourth/tenth century, Abu Muhammad al-Harithi sought to
ferret out, collect, and compile the hadiths of Abu Hanifa. In other instance, the hadiths of
Abu Hanifa were also edited by Abu Bakr al-Muqriʾ.20
The second leading jurisprudent: Malik b. Anas (d. 179/795)

The second leading jurisprudent, Malik b. Anas b. Malik b. Abi ʿAmir al-Asbahi al-Madani
(93–179/712–795), was the ‘amı̄r al-muʾminı̄n of hadith’, ‘imām dār al-hijra’, ‘jurist of the Hejaz’,
and its scholar during his time.21 He belonged to a notable family. His great-grandfather, Abu
ʿAmir, was a Companion who participated in most of the early battles of the Muslim com-
munity, but not in the battle of Badr. His grandfather, a senior Successor as well as a scholar,
was a consultant to ʿUmar b. ʿAbd al-ʿAziz. Malik grew up in Medina and was educated by its
prominent scholars. A seeker of knowledge since his youth, Malik was dressed by his mother
in the robe of a scholar and sent to the well-mannered Ibn Rabiʿa. He continued to learn his
teacher’s manners and knowledge until he excelled in them.
He constantly accompanied ʿAbd al-Rahman b. Hurmuz, who was known as al-Aʿraj
(d. 117/735) for 13 years. He studied under Nafiʿ, the freedman of Ibn ʿUmar, and asked
him about the opinions of Ibn ʿUmar. In addition, he studied under Ibn Shihab al-Zuhri,
the keeper of Saʿid b. al-Musayyib and the jurisprudent of the Successors of Medina, and sat
with Muhammad b. al-Munkadir, Yahya b. Saʿid al-Ansari, and other scholars affiliated with
them. He also accompanied and transmitted from Jaʿfar al-Sadiq. In total, he learned material
from over 900 scholars.
It appears that he learned from his peers and incorporated their thoughts and opinions into
his teaching, which made him a prominent jurist and drew scholars and students to him from
all over the Muslim world. He began teaching when he was 17, while his teachers were still
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alive and the city’s scholars were growing in number. He lived in Medina for 70 years and
never stopped narrating, engaging in iftāʾ, and teaching. Scholars reflected on his scholarship
and said, ‘No one else should grant legal responsa while Malik is in Medina’ (lā yuftā wa-Malik
fi al-Madı̄na) because of his vast knowledge and the high calibre of his teaching.
His peers and counterparts benefited greatly from his teachings, including Muhammad b.
Ibrahim b. Dinar (d. 182/798), who had studied under Ibn Hurmuz. Al-Shafiʿi, al-Mughira
b. ʿAbd al-Rahman al-Makhzumi, ʿAbd al-ʿAziz b. Abi Hazim (d. 184/800), and Ahmad b.
Hanbal testified to his knowledge in jurisprudence; and Sufyan al-Thawri, the ‘scholar of
Iraq’, used to ask Malik to compete with other members of his circle.
Many leading Ijtihād scholars transmitted about him, such as Abu Hanifa, the ‘scholar
of Iraq’; Sufyan b. ʿUyayna, the ‘scholar of Mecca’; Muslim b. Khalid al-Zanji (al-Shafiʿi’s
teacher); Ibn Jurayj, the ‘ jurist of the Grand Mosque’; al-Awzaʿi, the ‘scholar of Syria’; al-
Layth b. Saʿd, the ‘scholar of Egypt’; Ibn Abi Dhiʾb, a notable scholar in Medina; ʿAbdul-
lah b. Mubarak, a disciple of Abu Hanifa, Abu Yusuf, Muhammad b. Hasan al-Shaybani,
and others. Among Malik’s teachers who transmitted from and needed his knowledge
were Zayd b. Aslam, Yahya b. Saʿid al-Ansari, Ibn Shihab al-Zuhri, Rabiʿa, and Ayyub
al-Sakhtiyani.
Malik tracked the Companions’ legal responsa and the Successors’ jurisprudence until he
emerged as the most knowledgeable person of Medinan hadith and the most reliable judge re-
garding chains of authority. Al-Shafiʿi called him the ‘star of hadith’, and Yahya b. Maʿin praised
him both for his manners and for his knowledge and considered him a sign of God’s blessing on
His creatures. Moreover, he acted upon his knowledge, especially when he disapproved of the
caliph Abu Jaʿfar al-Mansur and was reluctant to take the oath of allegiance to him. The news
reached Jaʿfar b. Sulayman, the deputy of Medina, who then summoned and rebuked Malik.
The ensuing whipping he received for voicing this opinion dislocated his shoulder. His only
reply was to ask God to forgive them because they did not know what they were doing.
Contemporary and later scholars competed to record his biography and their writings
reflected his tremendous influence. Malik explained his methodological approach to Ijtihād
as follows. What is found in the Qurʾan and the Prophet’s Sunnah is beyond doubt, and God
is aware of what is derived from exerting one’s judgement (Ijtihād al-raʾy). Inclined to resort
to qiyās only when absolutely necessary, Malik asserted that what appeared in the Muwattaʾ
was not his opinion, but rather what he had heard from the people of knowledge (ahl al-ʿilm),
those who feared God. In addition, he maintained that his opinion was also their opinion,
since it had been transmitted from the Companions. Therefore, his material represented the
consensus of the views of leading scholars. Whenever he said al-amr ʿindanā (‘the situation
among us’) or al-amr bi-baladinā (‘the situation in our town’), he was referring to practices
known by both the common people and the scholars of Medina. When he quoted various
scholars, he would indicate the views that he preferred. Whenever he was unsure, he exer-
cised Ijtihād and looked into the view that he considered to be the truth or near to the truth
so that he would stay within the Medina school and its views. In case he had not heard it, he
would incorporate his opinion beyond Ijtihād along with the Sunnah and the predecessors’
practice so as to not override previous opinions.
Malik constructed his legal doctrine on the following five principles: the explicit Qurʾanic
text (nas․․s); the apparent (z
․āhir) meaning derived from a general and non-specific text; the
evidence (dalı̄l) of a text that may have an interpretation that diverges from its obvious mean-
ing; an implication (mafhūm) of the text, which has an added meaning that coincides with
its obvious meaning; and an expositive text (tanbı̄h) that reports the underlying reason for a
judgement, like the statement, ‘it is filth’.
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He used the Sunnah and its evidence according to a similar pattern of ten categories:
consensus (ijmāʿ); analogy (qiyās); the practice of the people of Medina (ʿamal ahl al-Madı̄na);
the Companion’s statements (qawl al-s․ah․ābı̄) with a proper chain of authorities (isnād); judicial
preference (istih․sān) – reportedly representing nine tenths of knowledge – blocking the paths
to evil (sadd al-dharāʾiʿ); the presumed continuance of the status quo ante (istis․․hāb); avoidance
of contradictory rulings (murāʿāt al-khilāf ); and considerations of public interest (al-mas․ālih․
al-mursala). He was confident when he elaborated the meanings of public interest.
Malik’s Muwattaʾ was the first written hadith collection comprising the subjects of Islamic
jurisprudence and the first legal work to incorporate and combine hadith and law. This
widely praised work is considered among the earliest extant hadith collections that, alongside
the Qurʾan, form the basis of Islamic jurisprudence. It is far more than that, though, for many
of the legal precepts it contains are not based on hadith. The book covers the rituals, rites,
customs, traditions, norms, and laws of the Prophet’s time. It is reported that Malik included
in it only about 1% of the 100,000 authentic hadith reports available to him. 22 He adopted
great diligence and meticulousness in order to respond to the increasing number of disputed
opinions in the law and to fulfill a personal request from Caliph Abu Jaʿfar al-Mansur to
produce a work that could be promulgated as the Empire’s standard law book.23
Given that such a work should exemplify the principle of the Prophet that ‘The best
matters are those which are balanced’, he devised a compendium of the agreed-upon views
of the Companions and the elder scholars on religious and legal issues.24 Another historical
report suggests that the date of Caliph Abu Jaʿfar al-Mansur’s (r. 136–158/753–775) death
was misreported, since it took Malik 40 years to write this work; he completed it in 176/792,
three years before his own death.25 It has been said that he revised the Muwattaʾ several times
to make it as useful as possible for Muslims and the best for Islam. According to al-Qadi
ʿIyad, if Malik had lived longer he would have summarized all of his work and left nothing
to chance.26
According to al-Qadi ʿIyad, Ibn Farhun, and Ibn al-Nadim, Malik composed many
treaties, such as Risala ʿila Harun al-Rashid (Epistle to Harun al-Rashid, on manners and
exhortation to good deeds), Risala fi al-Fatwa (Epistle on Legal Questions, addressed to
his companion and prominent Medinan scholar Abu Ghassan Muhammad b. al-Mutarrif
al-Laythi), Kitab fi al-Tafsir li-Gharib al-Qurʾan, which was transmitted by Khalid b. ʿAbd
al-Rahman al-Makhzumi, Risala ila al-Layth b. Saʿd fi Ijmāʿ Ahl al-Madina, Kitab al-Sira,
which was transmitted by ʿAbd al-Rahman b. al-Qasim, and Masaʾil wa-Ajwibatuha, which
was transmitted by ʿAbdullah b. ʿAbd al-Hakam (d. 214/829).27
The third leading jurisprudent: Muhammad b. Idris al-Shafiʿi

(d. 204/819)
The lineage of the third leading scholar, Abu ʿAbdullah Muhammad b. Idris al-Shafiʿi al-
Muttallibi (150–204/767–819), is linked with that of the Prophet via the Banu ʿAbd Manaf.
Born in Gaza in Palestine, his mother brought him to Mecca while he was a young child. He
memorized the Qurʾan by the age of seven and al-Muwattaʾ by the age of ten. Even the well-
known and eloquent poet al-Asmaʿi heard him recite from the poetic work Diwan al-Hudhaliyyin.
A disciple of Muslim b. Khalid al-Zanji, the grand mufti of Mecca, al-Shafiʿi later moved
to Medina to study under Malik and read all of al-Muwattaʾ. He learned the knowledge of the
scholars of Medina. Malik, very impressed with his intelligence, praised him for his under-
standing and perseverance. Al-Shafiʿi’s teacher Muslim b. Khalid al-Zanji permitted him to
engage in iftaʾ at the age of 15.28
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Al-Shafiʿi then moved with his uncle Abu Musʿab to Yemen. In 184/800, he was accused
of siding with Yahya b. ʿAbdullah and preaching for the Ahl al-Bayt. When he was brought
before Caliph Harun al-Rashid, Abu Hanifa’s disciple Muhammad b. Hasan al-Shaybani
pleaded for him and managed to persuade the caliph of al-Shafiʿi’s innocence.29 In Bagh-
dad, he studied with Muhammad b. Hasan al-Shaybani and familiarized himself with the
region’s jurisprudential works. He later reported, ‘I walked out of Baghdad with the valuable
knowledge of Muhammad b. Hasan al-Shaybani’.30 He was considered among the disciples
of Malik, and he opposed the views of Muhammad b. Hasan al-Shaybani and those of the
adherents of raʾy, particularly regarding their use of legal analogy. In defence of the people
of the Hejaz, he promoted jurisprudence that was based on the transmitted report (athar),
becoming known as the champion of Sunnah.31
His stay in Iraq greatly affected his independent process of legal interpretation and the
construction of a new methodological approach after his departure from Baghdad. He then
proceeded to form his own school and thus became independent of his teacher Malik b. Anas.
In 188/804 he travelled to Mecca. However, he continued to move between the two regions
until he left for Egypt, where he stayed until 195/811. Returning to Baghdad, he found him-
self surrounded by scholars who were eager to benefit from his knowledge, including Ahmad
b. Hanbal and Abu al-Thawr. During his two-year residence there, he dictated his books, his
knowledge became widespread, and many scholars embraced his school.32
In 198/814 he returned to Mecca and then to Baghdad, where he stayed for a month be-
fore going to Egypt. After settling down in Fustat, he taught law, composing and dictating
his new books to his disciples until he became seriously ill and died at the age of 54. The
works he had compiled in Iraq became known as his ‘old’ legal doctrine, while the works he
compiled in Egypt became known as his ‘new’ legal doctrine.
Leading scholars, including ʿAbd al-Rahman b. Mahdi, asked al-Shafiʿi to write a book
on the meanings of the Qurʾan, accepted reports, arguments over consensus, and statements
regarding the abrogation in the Qurʾan and Sunnah. Al-Shafiʿi presented him with his Risala,
which pleased him so much that he kept al-Shafiʿi in his prayers. Ahmad b. Hanbal also
praised him: ‘God will send to this nation at the beginning of every century a person to
renew its religion. ʿUmar b. ʿAbd al-ʿAziz was for the first century, and al-Shafiʿi is for
the second century’. Malik, Sufyan b. ʿUyayna, Is-haq b. Rahawayh, Muhmmad b. Hasan
al-Shaybani, Yahya b. Maʿin, ʿAli b. al-Madini, and al-Qadi ʿIyad also praised him.33
Al-Shafiʿi recorded the sources and principles of his legal hermeneutics in the Risala and Kitab
al-Umm. His methodological approach relied on the four core principles of the Qurʾan, Sunnah,
consensus and analogy.34 He also declared that the opinions of the Companions sayings consti-
tute proof (h․ujja) that must be taken into account regarding details.35 In his Kitab Ikhtilaf maʿa
Malik,36 he stated that knowledge is divided into five levels: the Qurʾan and the Sunnah; consen-
sus in cases in which an answer cannot be found in the Qurʾan and the Sunnah; the opinion of a
Companion without any reported objection from the Companions; the Companions’ disputed
opinions; and analogy. He dedicated a chapter in his al-Umm to explaining why istih ․sān (juristic
preference) should be rejected, while refuting the argument presented by the jurists of Medina.
Al-Shafiʿi spread his own doctrine far and wide in the form of 113 treatises that he com-
posed in Baghdad, Mecca, and Egypt. His most famous book, Kitab al-Umm, classifies sub-
jects in accordance with the topical chapters of the law. He dictated this work to his disciples
in Egypt, and his disciple al-Rabiʿ b. Sulayman al-Muradi (d. 270/883) transmitted it. Also
among his legacy is a collection of treatises on ikhtilāf (disputed points of law) and compara-
tive jurisprudence. His second-most important work, al-Risala, is considered the first manual
of legal theory or the principles of jurisprudence (us․ūl al-fiqh). In his Kitab Ikhtilaf al-Hadith, he
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Labeeb Ahmed Bsoul
explained how to weigh two conflicting hadiths, asserting that there is no actual conflict but
rather only apparent contradiction. In most cases, one report abrogates the other. To illustrate
this reasoning, he remarked that the reader should view one of them as sound (s․ah ․ı̄h
․) and the
other as unsound. If they were both sound, he would combine them to make each hadith
report unlike the other, thereby refuting leading scholars’ claims that the reports contradicted
each other. He incorporated this argument into the last volume of Kitab al-Umm.
The fourth leading jurisprudent: Jaʿfar al-Sadiq (148/765)

The forth scholar, Abu ʿAbdullah Jaʿfar b. Muhammad al-Baqir b. ʿAli Zayn al-ʿAbidin b.
al-Husayn b. ʿAli b. Abi Talib, known as Jaʿfar al-Sadiq (80–148/699–765), was the sixth
Imam of the Twelver Shiʿis. He claimed that this position was reserved for the offspring of
al-Husayn, the son of Fatima and ʿAli b. Abi Talib, after the death of al-Hasan b. ʿAli b. Abi
Talib. Al-Sadiq’s mother was Farwah bint al-Qasim b. Muhammad b. Abu Bakr al-Siddiq. A
member of the Banu Hashim lineage, he transmitted from his father al-Baqir, his maternal
grandfather al-Qasim, and scholars affiliated with them.
Al-Sadiq was known for his views on Islam’s fundamental and subsidiary legal issues.
The debates that raged between him and other scholars became common with respect to the
methodological interpretation of the origin of Islamic jurisprudence. His school gathered
many students from across the Muslim world, and his jurisprudence and traditions spread far
afield. For that reason the Twelver Shiʿi legal school was attributed to him in particular. 37 In
his capacity as a transmitter of hadith as well as a scholar of the disputed points of the law and
an expert in legal deduction, he had a wide-ranging knowledge of the sayings and opinions
of numerous scholars.
Abu Hanifa transmitted that Abu Jaʿfar al-Mansur said to him, ‘The people are infatuated
with Jaʿfar b. Muhammad, so prepare for him questions that require answers’. I prepared 40
cases and asked him about them. He replied, ‘You say this … the people of Medina say this
… while we say this … We might shift our opinion, or perhaps you will shift your opinion,
or perhaps we will all continue in dissent’. After he had addressed all 40 issues, Abu Hanifa
said, ‘He (Abu Ja`far) is the most knowledgeable scholar. He is the most knowledgeable of the
jurists of differences of opinion (ikhtilāf )’.38
Sufyan al-Thawri, Sufyan b. ʿUyayna, Malik b. Anas, Abu Hanifa, and many other lead-
ing jurists benefited from his knowledge. Moreover, al-Sadiq was a scholar of alchemy and
a teacher of Jabir b. Hayyan, who compiled for him 500 alchemical treatises. He died at the
age of 69. His methodological approach was to consult the Qurʾan and the Prophetic Sunnah,
followed by the statements of the Shiʿi Imams, to respond to argument through consensus,
and to reject legal analogy altogether. One of his doctrinal points was the requirement that
scholars undertake Ijtihād. The most famous work attributed to him is Misbah al-Shariʿah wa-
Miftah al-Haqiqa, a 100-chapter work that consists of his sayings on ethical dimensions of the
Qurʾan, Kitab Tafsir al-Qurʾan, Kitab Manafiʿ Suwar al-Qurʾan, and Kitab Khawass al-Qurʾan al-
ʿAzim. In addition to works on the fundamental principles of Islam, his Kitab al-Tawhid, Kitab
Ithbat al-Saniʿ, and Adilla ʿalā al-Khalq wa-l-Tadbir, he had an almanac of months and years,
presenting weather forecasts and instructions on selecting days and months.39
The fifth leading jurisprudent: ʿAbd al-Rahman al-Awzaʿi (157/791)

The fifth leading scholar, Abu ʿAmr ʿAbd al-Rahman al-Awzaʿi (88–157/707–791), was the
imam and jurist of the people of Syria. A senior Successor of the Successors, he received
148
his knowledge from Mak-hul and ʿAtaʿ. He travelled to Iraq, the Hejaz, and Egypt to seek
knowledge. He studied under such Successor scholars as b. Shihab al-Zuhri and Yahya b. Abi
Kathir, until he became a leading scholar and major specialist in jurisprudence and hadith.
ʿAbd al-Rahman b. al-Mahdi said, ‘There are four hadith scholars: al-Awzaʿi, Malik b. Anas,
Sufyan al-Thawri, and Hammad b. Zayd. Moreover, no one more was knowledgeable about
the Sunnah than al-Awzaʿi’. A majority of scholars testified to his profound knowledge:
Malik said al-Awzaʿi was exemplary, Sufyan b. ʿUyayna said that al-Awzaʿi was the leading
scholar of his time, and Yahya b. Maʿin said there are three true scholars: al-Thawri, Abu
Hanifa and al-Awzaʿi.40
Al-Awzaʿi was a source of knowledge for such prominent scholars as ʿAbdullah b. Mubarak,
Sufyan al-Thawri, Abu Is-haq al-Fazari, al-Walid b. Muslim, and ʿAmr b. Abi Salama. He
became an authority on jurisprudence at the age of 13 and issued fatwas on 70,000 matters.
An independent mujtahid, he expressed his own views and formed his own school of Ijtihād.
He was more inclined towards transmitted reports than to personal judgement, opposed legal
analogy and actively pursued reports, for,
You should take into consideration the ancestors’ transmitted opinions even if the people
reject you, and you should be aware of the people’s legal opinions even if later scholars
have decorated and improved them. Be patient with the Sunnah and take it as it stands,
rule according to what the majority says, and stop where they do. Be aware of how much
they can do.
He was very aware of the meanings of the words he used and made sure that whoever lis-
tened to him wrote down his best opinions. Ibn al-Nadim said that al-Awzaʿi wrote works
arranged by legal chapter, including Kitab al-Sunan fi al-Fiqh and Kitab al-Masaʾil fi al-Fiqh.41
His works were preserved through citations in later works such as Kitab al-Radd ʿalā Siyar
al-Awzaʿi by Abu Yusuf, the disciple of Abu Hanifa, which appears in al-Shafiʿi’s Kitab
al-Umm.42 Abu Muhammad ʿAbd al-Rahman b. Abi al-Hatim’s (d. 327/939) Kitab al-Jarh
wa-l-Taʿdil preserves the epistles al-Awzaʿi wrote to the Abbasid caliphs to explain his views
on jurisprudential issues and to present various exhortations. When one of these reached
Caliph al-Mansur, he read it and pondered on its wonderful meanings and the sweetness of
its contents.43
Al-Awzaʿi’s school was widespread in Syria; the people of Damascus and its surrounding
areas followed it for 220 years. It disappeared at the beginning of the third/ninth century.
The people of the Andalus also followed it as a consequence of the influx of Syrians, espe-
cially in the early Islamic centuries. It was replaced by the Maliki legal school after two cen-
turies of Umayyad rule.44 The modern scholar ʿAbdullah al-Mawla Muhammad al-Jabburi’s
Fiqh al-Imam al-Awzaʿi is now available in two volumes.45
The sixth leading jurisprudent:

Sufyan b. Saʿid al-Thawri al-Kufi (162/778)
Abu ʿAbdullah Sufyan b. Saʿid b. Masruq al-Thawri al-Kufi (97–162/761–778), a lead-
ing mujtahid and founder of one of the leading legal schools, was taught by al-Aswad
b. Yazid, Zayd b. Aslam, al-Aʿmash, and others. Such prominent scholars as Malik b.
Anas, ʿAbdullah b. Mubarak, Sufyan b. ʿUyayna, al-Awzaʿi, and b. Jurayj heard his legal
opinions. Abu Jaʿfar al-Mansur offered him a judicial position in Kufa, but he declined.
He left for Mecca in 144/761 and settled there. When the Caliph al-Mahdi called upon
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him, he moved to Basra and hid there until his death. Praised by all leadings scholars,
he was considered the most knowledgeable and prominent figure in both hadith and
law. Among his many works in these two fields are Kitab al-Tafsir, Kitab al-Faraʾid, Kitab
al-Iʿtiqad, and Kitab al-Jamiʿ al-Kabir fi al-Hadith. He also wrote treaties on asceticism,
exhortation, and legal opinions. Although many followers applied his doctrine while
undertaking iftāʾ, his legal school did not survive. However, Ibn ʿImad al-Hanbali re-
ported that he identified some followers who were active in the final years of the fourth
century.46
The seventh leading jurisprudent: al-Layth b. Saʿd al-Misri (175/791)

Abu al-Harith al-Layth b. Saʿd b. ʿAbd al-Rahman al-Fahmi al-Misri (95–175/731–791), ‘the
imam of fiqh and hadith’, engaged in iftāʾ while living in Egypt. He moved to the Hejaz in his
twenties and studied jurisprudence with ʿAtaʾ, Qatada, Nafiʿ, and Malik b. Anas. A disciple
of Ibn Shihab al-Zuhri, he met and debated with Rabiʿat al-Raʾy on various issues and ex-
changed letters and consulted frequently with Malik. Ibn Qayyim al-Jawziyya (d. 751/1350)
preserved this correspondence, which is considered a great model of communication and
intellectual discourse concerning evidentiary matters discussed among prominent scholars.
Many leading jurists such as Ibn Wahb, al-Shafiʿi, and Yahya b. Bakir considered al-Layth,
who adhered to transmitted opinions more than Malik, to be more diverse than Malik.
However, despite his high caliber in both fields, his legal school failed to attract enough
followers to ensure its survival. Malik was more fortunate in this regard, as Ibn Bakir stated.
Ibn al-Nadim reported that al-Layth authored such works as Kitab Masaʾil fi al-Fiqh, and
before starting his own legal school was one of Malik’s companions. He was offered – and
declined – a governorship.47
Those who studied under these leading scholars, the mujtahids of their legal schools, spread
their teachers’ reasoning in jurisprudence. The second phase of this activity saw the emer-
gence of disciples who preserved and spread these doctrines through the derivation of subsid-
iary rulings (tafrı̄ʿ) and codification (tadwı̄n). Other mujtahids arose at this time as well, three
of whom had their legal doctrine codified: Ahmad b. Hanbal, Abu Thawr, and Dawud b.
ʿAli. Therefore, one must count these three individuals among the seven leading figures of
this stage.
The eighth leading jurisprudent: Ahmad b. Hanbal

al-Shaybani (241/855)
Abu ʿUbaydillah Ahmad b. Muhammad b. Hanbal b. Hilal al-Shaybani (164–241/781–855)
attended the circle of al-Qadi Abu Yusuf, but eventually left it in 187/803 and became at-
tracted to hadith. He sought knowledge in Kufa, Basra, Mecca, Medina, Yemen, Syria, and
the Arabian Peninsula with their leading scholars such as Sufyan b. ʿUyayna and al-Shafiʿi
and heard material from ʿAbd al-Razzaq b. Hammam, Wakiʿ b. al-Jarrah, Yahya b. Saʿid
al-Qattan, ʿAbd al-Rahman al-Mahdi, and others in Sanʿaʾ.48
A Shafiʿi jurist, he gradually became an independent mujtahid who taught such hadith
scholars as al-Bukhari, Muslim, al-Shafiʿi, Abu Dawud, who wrote about him in his Kitab
al-Sunan,49 and his two sons Salih and ʿAbdullah b. Hanbal was an ‘imam of hadith’ and an
ascetic who was concerned with the points of law in all their details. Al-Shafiʿi, despite
his wide knowledge, relied upon Ibn Hanbal’s views with respect to hadith and frequently
praised him for his righteousness and the high caliber of his scholarship. Ibn Hanbal took a
150
firm stand under the Caliphs al-Muʿtasim and his son al-Wathiq on the Qurʾan’s createdness
and was imprisoned and flogged as a consequence. Later on, he was offered – and declined
– the governorship of Yemen. Some scholars, such as Ibn Jarir al-Tabari, al-Tahawi, al-Dusi,
al-Nasafi, Abu Hamid al-Ghazali, Ibn Qutayba, al-Maqdisi, and Ibn ʿAbd al-Barr dispute
his authority in hadith. In the Fihrist, Ibn al-Nadim dedicated less attention to this schol-
ar’s authority in law than he did to those of Malik, Abu Hanifa, Dawud, and their affiliates
on the grounds that Ibn Hanbal was more involved in scholarship on hadith than in legal
scholarship. His Musnad contains 30,000 hadith, none of which are repetitions, filtered out
of 750,000 reports. Al-Qadi ʿIyad states that Ibn Hanbal is a leading hadith authority and no
one should oppose his status. Nevertheless, his opinions should not be given the same weight
as that accorded to the other founders of legal schools with respect to legal questions.50 His
followers, who disagree with this statement, consider him a mujtahid in law. Since his fatwas
and discussions of legal questions were transmitted and reported to subsequent generations
and compiled in well-known works, he gained recognition as a leading jurist and a model
for the people of the Sunnah, and even his opponents ended up praising his legal rulings and
pronouncements.51
Ibn Hanbal’s legal rulings were based on five principles. The first category (a) was that
of explicit textual rulings of the Qurʾan and Sunnah – if they existed, they would stand, in
his view, even if they were opposed by other views. The second category (b) was that of the
Companions’ legal opinions. Any fatwa from a Companion that has no known opposition
should be considered. The third category (c) was that of selection from the variety of views
adopted by the Companions. If there was disagreement among them regarding a legal ruling,
one should select the most suitable view from the perspective of the Qurʾan and the Sunnah
and not go beyond the spectrum of their opinions. If one cannot arrive at a single preferred
opinion, the issue of legal dissent (ikhtilāf ) should be addressed by discarding the opinions
of all others besides the Companions. The fourth category consisted of (d) the acceptance of
hadith reports that were either mursal (discontinued or disconnected, especially at the level of
a Companion) or ․daʿı̄f (weak), as long as there was no need to trace them back to the original
source. If there is a lack of consensus on a disputed issue, a weak hadith report should be given
priority over an analogical argument. The fifth category was that of legal analogy (qiyās); Ibn
Hanbal admitted the use of analogy if necessary.
Sometimes Ibn Hanbal refrained from issuing a legal responsum when a conflict of evi-
dence arose, the Companions had different interpretations, or a saying of a Companion or a
Successor could not be found. Thus, it is evident that he had additional hermeneutic princi-
ples. He adduced isolated reports (khabar al-wāh ․id) as proofs without reservation as long they
had valid chains of transmission. He also employed the principle of sadd al-dharāʾiʿ (‘blocking
the means’), which appears in many of the subsidiary rulings transmitted from him.52
Ibn Hanbal’s views were deeply anchored in the transmitted opinions associated with
historical and surviving legal schools, especially regarding the Companions’ deeds and prec-
edents. Because most of Ibn Hanbal’s followers were from Baghdad, his legal school man-
aged to survive and spread. In addition to his Musnad, his Kitab ʿIlal al-Hadith illustrated
his ability to classify the relative authority and biographies of hadith transmitters and the
hadiths they reported. His Kitab al-Masaʾil consists of his answers to his disciples on matters
of subsidiary and fundamental legal cases. His disciple Abu Bakr al-Khallal (d. 311/923)
compiled this work for inclusion in his al-Jamiʿ li-ʿUlum al-Imam Ahmad. He also authored
Kitab al-Tafsir, Kitab al-Nasikh wa-l-Mansukh, Kitab al-Zuhd, Kitab al-Fadaʾil, Kitab al-Faraʾid,
Kitab al-Manasik, Kitab al-Iman, Kitab al-Radd ʿala al-Jahmiyya, Kitab al-Ashriba, and Kitab
Taʿat Rasul Allah.53
151
Labeeb Ahmed Bsoul
The ninth leading jurisprudent: Ibrahim b.

Khalid al-Baghdadi (d. 240/854)
Abu Thawr Ibrahim b. Khalid b. Abi al-Yaman al-Baghdadi (d. 240/854), a famous, devout,
and accomplished jurist, initially followed Muhammad b. Hasan al-Shaybani and then left
him for al-Shafiʿi when the latter arrived in Baghdad. As a disciple of al-Shafiʿi, he shifted
his hermeneutical emphasis from raʾy to athar and reduced his attendance at Muhammad b.
Hasan al-Shaybani’s lessons. He heard material from Sufyan b. ʿUyayna, ʿAbd al-Rahman
b. al-Mahdi, Wakiʿ b. al-Jarrah, and others. He transmitted al-Shafiʿi’s Baghdad-era opin-
ions but eventually opposed them when he found substitutes. He excelled in law to such a
degree that whenever Ibn Hanbal encountered a difficult issue, he would refer to Abu al-
Thawr. Considered a leading mujtahid, his independent legal school attracted followers in
Baghdad, Azerbaijan, and Armenia. However, because his companions did reach not a large
number or stay with him for long, his school disappeared after the fourth/tenth century. Ibn
al-Nadim mentioned three of his works on hadith and law: Kitab al-Tahara, Kitab al-Salat,
and Kitab al-Manasik. Al-Tabari benefited greatly from his works, particularly in his Kitab
Ikhtilaf al-Fuqahaʾ.54
The tenth leading jurisprudent: Dawud al-Zahiri (270/883)

Abu Sulayman Dawud b. ʿAli b. Khalaf al-Isbahani (al-Zahiri; 200–270/816–883), was the
․āhir) of the Qurʾan and Sunnah and to reject all
first jurist to use the plain-sense meaning (z
other principles such as such as personal judgement (raʾy) and analogy (qiyās). A disciple of
Is-haq b. Rahawayh, Abu al-Thawr, and others, he was an ascetic who, toward the end of his
life, was recognized as the top scholar in Baghdad. His son Abu Bakr b. Dawud and others
received their knowledge of law from this mujtahid, who was very partial to al-Shafiʿi. After
compiling two works on al-Shafiʿi’s virtues and praising him, he established his own legal
school based on the plain meaning of the Qurʾan and Sunnah. Furthermore, he considered
the scriptural texts to provide all answers, thereby limiting the sources of legal rulings to
the Qurʾan, the Sunnah, and the Companions’ consensus. He clarified the principles of legal
hermeneutics and prohibited the use of qiyās as a source of legal rulings. The Zahiris believed
that it was not possible to determine the divine purpose behind particular scriptural texts or
legal rulings, and they proclaimed that the first one to use qiyās was the Devil.
The Zahiri legal school first spread eastward, then westward. It remained active in the
Andalus until the fifth/11th century. It emerged in the fourth/tenth century in Iraq, Iran,
Khurasan, Oman, and Sind; however, the number of its followers decreased and it eventu-
ally disappeared. All that remains is found in books and encyclopedias of jurisprudence that
present it as a historical Sunni legal school. The Muwahhidun caliphate adopted the Zahiri
school of law during the reign of Caliph Yaʿqub b. Mansur (580–595/1184–1199). Ibn al-
Nadim reported that Dawud compiled around 157 works, among them Kitab Ibtal al-Taqlid,
Kitab Ibtal al-Qiyas, Kitab al-Khabar al-Wahid, and Kitab al-Hujja.55
Notes
1 Muhammad Yusuf al-Kandahuli, Hayat al-Sahaba, ed. Hisham al-Bukhari (Beirut: al-Maktaba
al-ʿAsriyya, 2012), 13: 225–7; ʿAbd al-Wahhab Khallaf, ʿIlm Usul al-Fiqh (Cairo: Dar al-Hadith,
2003), 107–8.
2 Muhammad b. Hasan al-Hajjuji al-Thaʿalibi al-Fasi, Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami, vol. 1
(Beirut: Dar al-Kutub al-ʿIlmiyya, 1976), 271–3.
152
3 Muhammad Anis Mustafa al-Khalili, Fiqh al-Ikhtilaf: Mabadiʾuhu wa-Dawabituhu (Beirut: al-
Maktaba al-ʿAsriyya, 2011), 92–4; Shah Walyyullah Ahmad b. ʿAbd al-Rahim al-Faruqi Dahlawi,
Al-Insaf fi Bayan Asbab al-Ikhtilaf (Beirut: Dar al-Nafa’is, 1978), 30–2; Muhammad ʿAli al-Sayis,
Tarikh al-Fiqh al-Islami (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990), 84–86; Muhammad Abu Zuhra,
Tarikh al-Madhahib al-Islamiyya (Cairo: Dar al-Fikr al-ʿArabi, 1987), 84–6.
4 Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press,
2005), 155.
5 Muhammad al-Khadari Baik, Tarikh al-Tashriʿ al-Islami, ed. Khalid al-ʿAttar (Beirut: Dar al-Fikr,
1995), 149–50.
6 See ʿAbd al-Rahman al-Jazari, Al-Fiqh ʿla al-Madhahib al-Arbaʿa (Beirut: Al-Maktaba al-ʿAsriyya,
2012); Muhammad Anis Mustafa al-Khalili, Fiqh al-Ikhtilaf: Mabadiʾuhu wa-Dawabituhu (Beirut:
Al-Maktaba al-ʿAsriyya, 2011), 97–101; Abu ʿAbdullah Muhammad b. Ahmad Ibn Qudama,
Manaqib al-Aʾimma al-Arbaʿa, ed. Sulayman Muslim al-Hurra (Riyadh: Dar al-Muʾayyad, 1995);
Muhammad Taja, Al-Madhahib al-Fiqhiyya al-Islamiyya, (Damascus: Dar Qutayba, 2004); Sayf al-
Din Abu Bakr Muhammad b. Ahmad al-Shashi, Hilyat al-ʿUlamaʾ fi Maʿrifat Madhahib al-Fuqahaʾ,
ed. Yasin Ahmad Ibrahim Daradikh, vols 1–8 (Amman, Jordan: Maktabat al-Risala al-Haditha,
1988); Muhammad ʿAbd al-Majid al-Asmandi, Tariqat al-Khilaf fi Fiqh al-Aʾimma al-Aslaf, ed. Mu-
hammad Zaki ʿAbd al-Barr (Cairo: Makatabat Dar al-Turath, 1990); Al-Khudari Baik, Tarikh al-
Tashriʿ, Taysir Usul al-Fiqh, 358–60.
7 ʿAbdullah ibn Asʿad ibn ʿAli ibn Sulaiman al-Yafiʿi, Mirʾat al-Jinan, vol. 1, 330–2; Al-Shirazi, Tab-
aqat al-Fuqahaʾ, 86; Ibn ʿImad, Shadharat al-Dhahab, vol. 1, 372; Ibn al-Nadim, Al-Fihrist, 342–51;
Al-Shahrastani, Abu al-Fath b. ʿAbd al-Karim, Al-Milal wa-l-Nihal, vol. 2 (Beirut: Dar al-Maʿrifa,
1986), 46; Mustafa b. ʿAbdullah al-Qusyantini Hajji Khalifa, Kashf al-Zunun ʿan Asami al-Kutub wa-
l-Funun, vol. 2 (Baghdad: Maktabat al-Mutanabbi, 1994), 556; Muhammad b. Hasan al-Thaʿalibi
al-Hajjuji, Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami, ed. Ayman Salih Shaʿban, vol. 2 (Beirut: Dar
al-Kutub al-ʿIlmiyya, 1995), 410–34.
8 Ibn ʿAbd al-Barr, Jamiʿ al-Bayan, vol. 2, 181–2.
9 Ibn Khaldun, al-Muqaddima, 427.
10 Ibn ʿAbd al-Barr, Jamiʿ al-Bayan, vol. 2, 183.
11 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 107.
12 Ibn al-Nadim, Al-Fihrist, 256.
13 Ibid., 282.
14 Ibid., 284.
15 Abu Bakr Ahmad b. ʿAli al-Khatib al-Baghdadi, Tarikh Baghdad/Madinat al-Salam: Akhbar Muhad-
dithiha wa-Dhikr Quttaniha al-ʿUlamaʾ min ghayr Ahliha wa-Waridiha, ed. Bashshar ʿAwwad Maʿruf,
vol. 13 (Beirut: Dar al-Gharb al-Islami, 2001), 338, 342 and 426–7.
16 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 107.
17 Fuat Sezgin, Tarikh al-Turath al-ʿArabi, trans. Mahmoud Fahmi Hijazi, ʿArafa Mustafa and ʿAbdullah
Hijazi, vol. 3 (Riyadh: Jamiʿat al-Imam Muhammad ibn Saʿud al-Islamiyya, Idarat al-Thaqafa wa-
l-Nashr, 1983), 37–50.
18 Hajji Khalifa, Kashf al-Zunun, vol. 2, 556–7.
19 Al-Thaʿalibi, Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami, vol. 2, 412–15.
20 Ibid., vol. 2, 212–13.
21 Abu al-Fadl al-Yahsubi al-Qadi ʿIyad, Tartib al-Madarik wa-Taqrib al-Masalik li-Maʿrifat Aʿlam Madh-
hab Malik, vol. 1 (Beirut: Dar Maktabat al-Hayat, 1967), 102–279; Burhan al-Din Ibrahim Ibn Far-
hun, Al-Dibaj al-Mudhahhab fi Maʿrifat Aʿyan ʿUlamaʾ al-Madhhab (Beirut: Dar al-Kutub al-ʿIlmiyya,
1996), 56–79; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 175; Ibn al-Nadim, Al-Fihrist, 251; Al-
Yafiʿi, Mirʾat al-Jinan, vol. 1, 387–90; Al-Shirazi, Tabaqat al-Fuqahaʾ, 67–8; Ibn ʿImad, Shadharat
al-Dhahab, vol. 1, 465–8; Al-Suyuti, Al-Mamalik bi Manaqib Sayyidina al-Imam Malik, 2–61; Al-
Zawawi, Manaqib Sayyidina al-Imam Malik, 14–56; Al-Thaʿalibi, Al-Fikr al-Sami, vol. 2, 446–63.
22 Al-Suyuti, Tadrib al-Rawi, vol. 1, 109–10.
23 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 192–3.
24 Zawawi, Manaqib Sayyidina Malik, 25.
25 Al-Suyuti, Tadrib al-Rawi, vol. 1, 88–9; Malik b. Anas, Al-Muwattaʾ, ed. Muhammad Fuʿad Baqi,
vol. 1 (Beirut: Dar Hasan al-Turath al-ʿArabi, 1985), 5–9.
26 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 193.
27 Ibn al-Nadim, Al-Fihrist, 338–41; Ibn Farhun, Al-Dibaj, vol. 1, 75; Al-Qadi ʿIyad, Tartib al-Madarik,
vol. 1, 204–7; Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 141.
153
Labeeb Ahmed Bsoul
28 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 251–4; Ibn al-Nadim, Al-Fihrist, 352–4; Al-Shirazi, Ta-
baqat al-Fuqahaʾ, 71–3; Ibn ʿImad, Shadharat al-Dhahab, vol. 2, 80–2; Al-Thaʿalibi, Al-Fikr al-Sami,
vol. 2, 464–7.
30 Ibid.
31 Ibid.
32 Abu Bakr Ahmad Al-Khatib al-Baghdadi, Tarikh Baghdad, ed. ʿAbd al-Qadir Mustafa, vol. 2
(Beirut: Dar al-Kitab al-ʿArabi, 1970), 56–73.
33 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 92–3.
34 Al-Shafiʿi, Kitab al-Risala, ed. Ahmad Muhammad Shakir (Beirut: al-Maktaba al-ʿIlmiyya), 39,
598–9.
35 Ibn al-Qayyim, Iʿlam al-Muwaqqiʿin, vol. 4, 121–2; Al-Shafiʿi, Kitab al-Risala, 596–8.
37 Hashim Maʿruf al-Hasani, Tarikh al-Fiqh al-Jaʿ fari ʿArd wa-Dirasa, ed. Muhammad Jawad Mughniya
(Cairo: Dar al-Nashr li-l-Jamiʿiyin, 1991), 225.
38 Abu Zuhra, Tarikh al-Madhahib al-Islamiyya (Cairo: Dar al-Fikr al-ʿArabi), 644.
39 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 269–3.
40 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 115–20; Ibn al-Nadim, Al-Fihrist, 384; Al-Shirazi, Tab-
aqat al-Fuqahaʾ, 76; Ibn ʿImad, Shadharat al-Dhahab, vol. 1, 393–5; Al-Thaʿalibi, Al-Fikr al-Sami, vol.
3, 436–7; Al-Yafiʿi, Mirʾat al-Jinan, vol. 1, 351–2.
42 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 244.
43 Abu Muhammad ʿAbd al-Rahman Ibn Abi Hatim, Kitab al-Jarh wa-l-Taʿdil, vol. 1 (Beirut: Dar
Hasan al-Turath al-ʿArabi, 1952), 191.
4 4 Ibid; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 115.
45 ʿAbdullah Muhammad al-Jabburi, Fiqh al-Imam al-Awzaʿi: Awwal Tadwin li-Fiqh al-Imam, 2 vols
(Baghdad: Matbaʿat al-Irshad, 1977).
46 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 248.
47 Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 166; Ibn al-Nadim, Al-Fihrist, 339; Al-Shirazi, Tabaqat
al-Fuqahaʾ, 78; Ibn ʿImad, Shadharat al-Dhahab, vol. 1, 457–8.
48 Ibn al-Nadim, Al-Fihrist, 378–4.
49 Ibid., 383.
50 Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 93.
51 Ibn al-Qayyim, Iʿlam al-Muwaqqiʿin, vol. 1: 23–7; Al-Shirazi, Tabaqat al-Fuqahaʾ, 91–2; Ibn ʿImad,
Shadharat al-Dhahab, vol. 2, 224–7; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 325–43; Al-Thaʿalibi,
Al-Fikr al-Sami, vol. 3, 20–8.
52 Ibn al-Qayyim al-Jawziyya explicitly reflected upon Ahmad b. Hanbal’s principles in detail in his
Iʿlam al-Muwaqqiʿin, vol. 1, 24–8.
53 Ibn al-Nadim, Al-Fihrist, 378–9.
54 Sezgin, Tarikh al-Turath al-ʿArabi, vol. 3, 193; Al-Shirazi, Tabaqat al-Fuqahaʾ, 92, 101–2; Ibn ʿImad,
Shadharat al-Dhahab, vol. 2, 220; Ibn Kathir, Al-Bidaya wa-l-Nihaya, vol. 10, 322; Al-Thaʿalabi, Al-
Fikr al-Sami, vol. 3, 19–20; Ibn al-Nadim, Al-Fihrist, 355; Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 80.
55 Al-Shirazi, Tabaqat al-Fuqahaʾ, 92, 101–2; Ibn ʿImad, Shadharat al-Dhahab, vol. 2, 317; Ibn Kathir,
Al-Bidaya wa-l-Nihaya, vol. 11, 47; Al-Thaʿalabi, Al-Fikr al-Sami, vol. 3, 29; Ibn al-Nadim, Al-Fihrist,
362–4; Al-Qadi ʿIyad, Tartib al-Madarik, vol. 1, 93; Ibn Khaldun, Al-Muqaddima, 428; Sezgin,
Tarikh al-Turath, vol. 3, 253; Taj al-Din al-Subki, Tabaqat al-Shafiʿiyya al-Kubra, ed. Mahmud al-
Tanahi and ʿAbd al-Fattah Muhammad al-Hilw, vol. 2 (Cairo: Matbaʿat ʿIsa al-Halabi, 1966), 284.
Selected bibliography and further reading

Abu Zuhra, Muhammad. Tarikh al-Madhahib al-Islamiyya (Cairo: Dar al-Fikr al-ʿArabi, 1987).
Anas, Malik ibn. Al-Muwattaʾ. Ed. Muhammad Fuʾad Baqi (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi,
1985).
Bsoul, Labeeb. Formation of Islamic Jurisprudence: From the Time of the Prophetic to the Middle of the 4th
Century (New York: Palgrave Macmillan, 2016).
Hajjuji, Muhammad b. Hasan al-Thaʿalibi. Al-Fikr al-Sami fi Tarikh al-Fiqh al-Islami. Ed. Ayman Salih
Shaʿban, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1995).
154
Ibn Abi Hatim, Abu Muhammad ʿAbd al-Rahman. Kitab al-Jarh wa-l-Taʿdil (Beirut: Dar Ihyaʾ al-
Turath al-ʿArabi, 1952).
Ibn Farhun, Burhan al-Din Ibrahim. Al-Dibaj al-Mudhahhab fi Maʿrifat Aʿyan ʿUlamaʾ al-Madhhab
(Beirut: Dar al-Kutub al-ʿIlmiyya, 1996).
Ibn ʿImad, ʿAbd al-Hayy b. Ahmad. Shadharat al-Dhahab fi Akhbar man Dhahab. Ed. Mustafa ʿAbd
al-Qadir ʿAta (Beirut: Dar al-Qalam, 1980).
Ibn Qayyim al-Jawziyya, Muhammad Abu Bakr. Iʿlam al-Muwaqqiʿin ʿan Rabb al-ʿAlamin. Ed. ʿAbd al-
Raʾuf Saʿd (Beirut: Dar al-Jalil, 1996).
Ibn Qudamah, Abu ʿAbdullah Muhammad b. Ahmad. Manaqib al-Aʾimma al-Arbaʿa. Ed. Sulayman
Muslim al-Hurra (Riyadh: Dar al-Muʾayyad, 1995).
Jazari, ʿAbd al-Rahman al-. Al-Fiqh ʿla al-Madhahib al-Arbaʿa (Beirut: al-Maktaba al-ʿAsriyya, 2012).
Qadi ʿIyad, Abu al-Fadl al-Yahsubi al-. Tartib al-Madarik wa-Taqrib al-Masalik li-Maʿrifat Aʿlam Madhhab
Malik (Beirut: Dar Maktabat al-Hayat, 1967).
Sayf al-Din, Abu Bakr Muhammad b. Ahmad. Hilyat al-ʿUlamaʾ fi Maʿrifat Madhahib al-Fuqahaʾ. Ed.
Yasin Ahmad Ibrahim Daradikh (Amman, Jordan: Maktabat al-Risala al-Haditha, 1988).
Shafiʿi, Muhammad b. Idris. Kitab al-Risala. Ed. Ahmad Muhammad Shakir (Beirut: al-Maktaba
al-ʿIlmiyya, 1978).
Shirazi, Abu Is-haq Ibrahim b. ʿAli al-Fayruzabadi. Tabaqat al-Fuqahaʾ. Ed. Ihsan ʿAbbas (Beirut: Dar
al-Raʾid al-ʿArabi, 1970).
155
8
Qadis and muftis
Judicial authority and the social
practice of Islamic law
Qadis and muftis play an essential role in realizing the duty to ensure justice in this world
and salvation in the next through interpreting, adapting and implementing the mandates of
Islamic sacred law (Shariʿah) for the community of believers and in its name. Both functions
converge in the Shariʿah court as long as consulting with a mufti before issuing judgment is
either recommended or mandatory, or to the extent that the litigants address a mufti at their
own initiative in the hope that a legal opinion concerning their case will shift the balance
in their favour. A significant part of their activities is also dedicated to providing a dispute
resolution advice alternative to litigation in court. The legal and religious symbolisms inher-
ent in both roles bring about the possibility of exerting a high degree of social and political
influence. Their power and authority are also enhanced by the performance of extra-legal,
sometimes even informal, tasks.
1 Definitions, sources and state of the art

A qadi is a judge on whom the ruler delegates the task of imparting justice according to
the principles of the Shariʿah. A mufti is a religious scholar (ʿālim) who issues non-binding
advisory and explanatory opinions (fatwa) at the request of others, sometimes in connection
with litigation, sometimes not, on matters covered by the Shariʿah, which at times trespass
the limits of fiqh to touch theology, mysticism, ethics, proper conduct, etc. Qadis are distinct
from other officials enjoying adjudicative competences. Their singularity with respect to
governmental judges relies in the obligation to judge according to the Shariʿah which, given
the strict evidentiary rules established by the latter, limits qadis’ capacities to take the corre-
sponding course of action, especially in penal matters. Yet the bond with the Shariʿah confers
on the office a sacrosanct character that, at least in theory, lends it independence and free-
dom from the ruler’s pressure and interference. Contrary to the arbitrator (h ․akam) the qadi’s
appointment is official and general, that is to say, not restricted to the particular case put in
his hands by the parties. Though they can be reversed or reviewed under certain conditions,
qadis’ judgments (h․ukm, qad․ā’), contrary to fatwas, are binding. Yet in the long term a mufti’s
opinion may end up carrying much more authority and strength than judgments; the latter’s
validity is restricted to the case in connection to which they were issued, whereas the import
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Qadis and muftis
of fatwas, though prompted by a specific set of circumstances, is considered to be of general

application when similar factual conditions are met. Qadiship is an official institution while
muftis used to operate as freelance consultants, except those attached to a qadi’s advisory
council (shūrā). Legal interpretation (iftā’) lost much of its independent and informal aspect
with the Ottomans, however.
1.1 Sources
Our main pool of information regarding the chronological development of qadis’ and muftis’
role in society is provided by written legal sources themselves, especially those more con-
cerned with the practical aspects of Islamic legal doctrine ( fiqh; furūʿ of fiqh) like collections
of fatwas and legal cases ( fatwas, nawāzil, masā’il). These sources show qadis and muftis in
the daily performance of their functions whereas biographical dictionaries of scholars help
contextualize their activities in their proper time and place. Compilations of legal doctrine
and opinions in their various genres, treatises on the inspection of morals and the markets
(h․isba), collections of model notarial forms (wathāʾiq, shurūt․) and very especially works for the
instruction of judges and legal interpreters (adab al-qadi; adab al-mufti) are more concerned
with promoting an ideal conception of eligibility, competences and behaviour. However they
are extremely useful to observe jurists’ strategies to impose themselves as the requisite can-
didates to perform religio-legal functions, to raise as the supreme interpreters of the Shariʿah
and to challenge control of their activity and limitation of their competences and influence
on the part of the ruler by playing governmental judges against qadis (e.g. assigning to the
former competences theoretically exclusive to the latter). A much closer look at qadis’ daily
activities is possible through court records (sijills), which qadis are known to have kept but
which have mostly disappeared for the period before 1500. Massive proportions of this kind
of source material are available after that date, however, for regions matching today’s Turkey,
Syria, Lebanon, Egypt, Greece and Bulgaria, thanks to the Ottoman practice of keeping
systematic archives.
Students of contemporary qadiship can draw on the judicial archives of modern
nation-states and on direct observation, as practiced by legal anthropologists. Specialized
internet sites and the mass media, along with private and public institutions charged with is-
suing fatwas, provide the new source of information about the continued authority of muftis
as interpreters of what it means to live today in compliance with the principles of the Shariʿah
for both the state and the general public.
1.2 State of the art1

Given that qadis are the emblem of a state judicial system closely connected with the emer-
gence of a centralizing political power, they have attracted a fair amount of attention among
students of Islamic history, law and society. Characterizations of qadis have now overcome
approaches that privileged the views of the elites and of courtly circles, among them jurists’
self-depictions of the political, religious and social dimension of their office. The static, uni-
form, hierarchical and all-embracing configuration with which qadiship was occasionally
described has given way to more nuanced and contextualized approaches considering the
variations of time and place and the complexities of the, at times collaborative, at times con-
frontational, and for the most part, symbiotic relationship of qadis with rulers, from whom
qadis derived their appointments and their authority, and whose legitimization, given the
religious nature of their assignments, they were able to enhance in their turn. The social
157
dimension of qadiship has been explored from different directions: the contents and sources of
qadis’ judgments, the extra-legal functions and roles performed by qadis, the selection criteria
applied to and by them (e.g. their social extraction, the habilitation of professional witnesses),
judicial corruption - the latter revealing a social sub-system with distinct values2 and the chief
qadi’s court as a singular space at odds with ordinary courts revealing the political workings of
judgeship.3 Recent scholarship has also demonstrated that factors like arbitrariness and irratio-
nality are no longer valid to explain qadis’ adjudicative performances. Concerned researchers
can work now with a better awareness of the risks of ‘essentializing’ qadiship, e.g. by making
conclusions drawn from direct observation of a single judge’s activities general and applicable
to all his counterparts irrespective of context. With the exception of the recent phenomenon
of cyber- and TV muftis, interest for Islamic legal interpretation and its makers has resulted
from the need to resort to the abundant information about social and economic history pro-
vided by fatwas and not vice versa. This methodological shift has contributed to raise the
interest for Ottoman muftis as well, notwithstanding the greater availability of court records
and the increased institutionalization of the office during that period. A better understanding
of the role of the mufti and its relevance to the Islamic judicial process has also contributed
to stress the need to address the adjudicative aspects of Islamic justice jointly with the advi-
sory functions performed by the mufti. Some assign the latter a leading role in the Islamic
judicial system; others consider the actual decisions taken by qadis and their materialization
in certified legal documents as embodying the very concept of Islamic law.4 The relevance of
documents in the Islamic judicial process assigns a privileged role to professional witnesses and
thus changes the political and social status of the qadi having appointed them.5
2 Qadis and muftis in chronological perspective

Both the religious symbolism of qadiship and muftiship and the legal, social and political
scope of their performances, have managed to resist the passage of time; not intact, however.
Both functions have been subject to a high degree of variation along political and spatial lines
a summary of which follows in a chronological narrative6 emphasizing the major shifts in
institutionalization, centralization and hierarchy produced during the Ottoman, the colonial
and the contemporary periods.
Though it would be problematic to place the origin of the office of the qadi and the mufti
in the Qurʾan and the Prophetic Sunnah, i.e. the main textual sources of the Shariʿah, they
can be safely taken to reflect assumptions about justice and its makers in pre-Islamic Arabia
and in the early Islamic imagination that became relevant in the emergence of the Shariʿah
judge and interpreter as we know them today.
2.1 Qadis
The two Arabic stems commonly associated with imparting justice in Islam (h ․-k-m and q-d․-y)
are present in the Qurʾan. The former is used in connection with Muhammad’s activities as
judge and arbitrator (e.g. Qurʾan 4:65, 105; 5:42; 48:9; 24:48,51), whereas the latter appears
only as a verbal noun (qad․āʾ) in the sense of command by God, authoritative decision by His
Prophet and the Last Judgement.
Descriptions of the Prophet playing the role of arbitrator or deciding disputes by means
of a judgement in the Qurʾan and the Sunnah established the moral ideal subsequent Mus-
lim judges were expected to fulfill. The double function of ruler and judge exerted by the
Prophet continued to be performed directly by his immediate successors and well into the
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Qadis and muftis
Umayyad period, though with the establishment of the garrison towns, judicial compe-
tences started to be delegated to judges designated as qadis on a regular basis. They had the
mission to administer justice according to their understanding of what Islamic sacred law
looked like at the time. Apart from the contents, or the spirit, of the Qurʾan, the source of
qadis’ decisions might also include the precedents established by Muhammad and the four
rightly guided caliphs, local custom and, in case of doubt or lack of clear guidance, good
judgement and personal discretion. Initially, qadis were appointed by caliphs though by the
end of the first/seventh century they started to be appointed by provincial governors as well;
their jurisdiction went beyond the limits of the garrison towns to reach other major centres
and the countryside, and to include non-Muslims. A constant trait of qadiship for the whole
pre-modern period was the combination of the duty to impart justice with the performance
of non-strictly judicial assignments like collecting taxes, diplomatic missions, leading the
Friday prayer, guarding the interests of orphans, supervising the Public Treasury, admin-
istering charitable endowments, etc. The relevance of the latter tasks and the power and
influence involved in their performance become particularly evident when the ruler tries to
take hold of those public funds to meet personal interests or appoints a supervisor of his own
to overcome the qadi’s reluctance,7 whereby retrieving the said competence may be presented
as signalling a return to the rule of law and respect for the Shariʿah.
With the expansion of the Islamic empire, the growing sophistication of the state appa-
ratus, the emergence of fiqh as a scholarly discipline and of interpretive schools of law (madh-
habs), qadiship developed into a professional occupation, and experts in Islamic religious
sciences – fiqh in particular – became the ideal candidates to fill the position. As the judiciary
became more professional, qadis started to receive regular salaries. These increased consider-
ably from the end of the eighth century CE onwards, rendering the position more attractive
and vulnerable to corruption. However relevant scholarly merits and ethical values may have
been, ethnic, tribal and family affinities are also known to have played a significant role in
a ruler’s decision to appoint a qadi because of the position’s potential to disseminate official
ideology and to control the local communities. Given the tensions between central power
and the provinces and the intermediation between the rulers and their subjects traditionally
exerted by religious scholars on the grounds of their capacity to influence both realms, the
latter aim might occasionally be sought by appointing a non-local or someone disconnected
from the local elites (e.g. a recent convert to Islam). Shariʿah justice as a marker of the exten-
sion or intensification of state control over rural areas becomes particularly salient when the
administration of justice in small towns and even villages, thus far exerted by a regular judge
(h․ākim) or a delegate from the capital (nāʾib), is entrusted to a qadi.8
As to qadis’ legal competences, variation along dynastical, geographical and temporal lines
is the constant. If, according to the theoretical definition of qadiship elaborated by jurists, the
Shariʿah judge is the judge par excellence in all areas of the law, in practice, qadis’ compe-
tences depended on the will of the appointing authority, with a marked tendency to entrust
the repression of crimes and torts, the inspection of morals and the markets, and the mainte-
nance of public order (shurt․a, ․hisba) to non-qadi judges and military governors. The ruler, on
the other hand, retained the power to do justice in person and exerted it quite often, directly
or by means of a specific state official, in case of the petitions and complaints of their subjects
(maz ․ālim) about administrative and judicial abuses. Occasionally, complaints received by the
ruler were redirected to a qadi for their resolution whereby the process became subject to
Shariʿah rules rather than the siyāsa or governmental justice applied by non-qadi judges, siyāsa
being not a secular law devoid of religious connotations but less strict than the Shariʿah es-
pecially as far as evidence, judicial procedure and the prohibition of torture was concerned.9
159
The creation of the figure of the chief qadi (qadi al-qud ․āt) by the Abbasid caliph Harun al-
Rashid (r. 786–809) is considered a major step in the consolidation of state control over the
judiciary. No doubt the dignity implied a singular position with the ruler which translated
into certain privileges with respect to other judges. Holders of the office used to be entrusted
the task to appoint and dismiss provincial qadis and to supervise their performance along
with that of their staff. Yet the assumption that these competences were assigned systemati-
cally and that pre-Ottoman chief qadis stood at the head of a centralized and hierarchically
organized judicial system is not always supported by the sources.10 Using a distinctive title to
refer to the chief qadi might signal a break with and independence from central power (e.g.
the office of qadi al-jamāʿa introduced by the Umayyads in al-Andalus). At certain periods
there were several chief qadis in a single political realm (e.g. Mamluk Egypt) occasion-
ally bearing different titles (e.g. qadi al-jamāʿa and qadi al-qud․āt in 11th- and 12th-century
a l-Andalus and Far Maghrib).
In principle it may be assumed that a strong central power is less dependent on the reli-
gious legitimacy provided by the ʿulamāʾ and, hence, on the symbolic representation of that
power by Shariʿah judges; those historical cases in which qadis managed to exert a high de-
gree of social and political influence11 would have been possible mainly because of political
crisis and territorial fragmentation. Conversely, the failure of the Abbasid caliph al-Maʾmun’s
attempt to monopolize the definition of religious orthodoxy in 849 (i.e. the so-called mih ․na
or inquisition) has been traditionally understood as opening a new era in which control over
the elaboration and the implementation of Islamic sacred law reverted to the religious schol-
ars to the exclusion of the ruler. Yet this moment also marked a decline in the status of the
chief qadi as the main representative of central power to the benefit of the vizier. Conversely,
as the Almohad and Ottoman experiences appear to indicate, a ruler’s or dynasty’s greater
capacity to intervene in legislation and a tighter control of the judiciary does not necessarily
bring about a weakening of chief qadiship or a limitation of the competences and influence
of Shariʿah judges.
A single qadi’s jurisdiction might include several towns of varying relevance, with their
districts. For all the pre-modern period, qadi courts (mah ․kama, mah․ākim) were presided over
by a single person, assisted, depending on the size and relevance of the jurisdiction in ques-
tion, by a secretary (kātib, amı̄n), professional witnesses (ʿudūl), a chamberlain ( jilwāz), hench-
men (aʿwān), and deputies (nuwwāb), if the attribution to appoint the latter was given by the
appointing authority. Qadis were encouraged to consult on their judgments with muftis,
especially when the case at hand required the application of bodily punishment, raised a dif-
ficult legal question or had sensitive political implications. This recommendation became an
obligation in certain regions like al-Andalus where the qadi’s tribunal included an advisory
council (majlis al-shūra) made up by legal experts selected by the qadi. Judicial consultation
could also involve legal experts other than the members of the shūrā. The latter consultative
body might also offer legal advice to the ruler.
The qadi and the members of his tribunal convened to receive the litigants and decide
their cases in the qadi’s domicile or in the mosque. These were public sessions open to
women as well as dhimmı̄s. Female litigants were given the option either to appear in court, to
dictate their claims and counterclaims to the secretary, or to act by means of an agent (wakı̄l).
Disputes involving dhimmı̄s alone could be voluntarily submitted to the qadi to be decided
according to Islamic law. The pre-Ottoman Islamic court was thus not bound to a given
physical space but to the judge’s person. He was the custodian of the court archive (dı̄wān) –
which he had normally received from his predecessor – together with documents relative to
detainees in prisons, whom he was to oversee. The archive included all the documents kept
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Qadis and muftis
by the judge. They used to be of two types: mah․․dar and sijill. The former is a record of the
litigants’ actions and claims, of their witnesses’ declarations made in the presence of the qadi
in connection with an individual case, and of the result of the qadi’s investigation concerning
that case. It was prepared by the secretary and signed by the qadi before the court witnesses.
The sijill is a witnessed collective recollection of each mah․․dar that includes the judgment is-
sued by the qadi in each case. The dı̄wān was also composed of a list of approved witnesses, a
register of supervisors of endowments and guardians appointed by the qadi, a list of endowed
properties and bequests, account sheets concerning the properties under the supervision of
the court (e.g. deposits, endowments, property belonging to orphans, widows, etc.), certified
legal documents, and the court communications and correspondence.
Qadis were instructed to issue judgment according to the doctrine of a given legal school
(madhhab), normally the one they adhered to. As in the case of judges in any other legal
system, qadis’ decisions were also informed by socio-cultural norms, established judicial
practices, local customs and their personal appraisal of the circumstances of the case at hand.
More often than not, disputes submitted to a qadi did not end in a formal judgment but in an
amicable settlement (şulh․) or in judicial certification.12
The qualifications to be met by the ideal candidate to qadiship, the conditions rendering
valid his appointment, and the nature and extent of his competences were established by
jurists themselves, mostly in works dedicated to ‘the craft of judging’ (adab al-qadi). These
works have to be used with caution because they do not always reflect actual practice but the
ideal it was thought the practice should aspire to, ideals and aspirations being no less relevant
to the study of legal systems and societies. Qad․ā’ is described there as a public duty (i.e. a duty
towards God) that can be performed by one individual in the name of the community ( fard․
kifāya). This individual must be an adult Muslim male. Hanafis’ admission of women to serve
as qadis in civil matters has not translated into actual appointment of females to the position.
A qadi must know the Qurʾan and the Prophetic Sunnah as well as the doctrine of the legal
school to which he is affiliated. The question of whether or not he must be able to exercise
Ijtihād or independent legal reasoning is subject to disagreement. A qadi is also expected to
be honest, pious and a balanced person.
Appointment is not cancelled automatically by the death of the appointer (except for the
Shiʿis) but if the selected candidate demonstrates not to be legally competent to pass judg-
ment, he must be dismissed and his judgments reversed. Appointment by an illegitimate ruler
(e.g. a non-Muslim ruler) may, according to some, compromise the validity of his decisions.13
A sound qadis’ judgments are reversible also when they are the result of an error of law (e.g.
improper interpretation of Qurʾan or Prophetic Sunnah, or disagreement with consensus or
ijmāʿ) contrary to errors of fact (e.g. a false or wrong testimony), which do not affect the va-
lidity and binding character of judgments. A qadi is presumed to be qualified to perform his
office and to have issued correct judgments. His successor is thus not required to investigate
the actions of his predecessor unless he has a reason to do so.
The judicial system developed by the Abbasids prevailed later in Mughal India and Sa-
favid Iran. The Ottomans followed similar lines and succeeded in co-opting the judiciary
to tighten the control of their vast dominions by creating a hierarchical structure headed by
the military judges (qadi ʿaskar) and the state mufti (shaykh al-islām). Next came the qadis of
the major towns and cities (mewlewiyets); below them were the qadis of districts (qad․ā’) and
sub-districts (nahiya). Governmental legislation (qānūn), initially conceived as a complement
to fiqh, started to be compiled and to regulate areas like the powers and the jurisdiction of
qadis and local officials whose at times overlapping competences were assigned with a view
to ensure mutual checks and balances. State controlled madrasas with a formal syllabus were
161
instituted for the training of qadis. Sultanic intervention was not limited to restructuring
the judiciary but reached the very process of qadis’ decision making; qadis were instructed
to issue judgment in accordance not just with a given legal school (the Hanafi) but with the
most authoritative opinions within that school, whereby their freedom to opt for the legal
opinion they saw as most fitting to the case at hand was restricted. Yet with the Ottomans,
qadis performed tasks (e.g. controlling the activities of the craftsmen and the sustainability
of buildings, securing the availability of foodstuffs and enforcing economic regulations) that
had been elsewhere assigned to other magistrates (e.g. the inspector of the markets; muh․tasib,
․sāh․ib al-sūq). The long aspiration not just to monopolize but to exert control over the admin-
istration of justice became partly realized by those local qadis entrusted with the monitoriza-
tion of the activities of other state agents like police officers, whereas qadis’ conduct itself was
supervised by the local governor in the name of the Sultan.14
Alongside their judicial and quasi-judicial functions, Ottoman qadis performed a series of
military tasks, such as overseeing the safety of the roads or ensuring that craftsmen actually
joined the army after an enrolment drive. A significant part of their time was also dedicated
to administrative and notarial tasks, sometimes officially assigned to them, sometimes per-
formed voluntarily, in which provincial qadis operated as intermediaries between the central
government and the local communities, especially as far as the filing of petitions and com-
plaints to the Sublime Porte was concerned.
Important reforms took place in the 19th and 20th centuries as a consequence of European
colonization of the Middle East and North Africa and the emergence of Muslim-majority
modern nation states. The radical changes these reforms represented for the classical config-
uration of qadiship have been summarized as follows: 1) abolition of siyāsa or discretionary
governmental law in favour of the state exerting now exclusive competence over criminal
justice; 2) bureaucratization of Shariʿah courts; 3) codification of the Shariʿah; 4) division
of the judiciary into two systems: a secular national court system that applies legal codes of
Western inspiration and Shariʿah courts keeping jurisdiction over disputes regarding family
issues and inheritances applying, in most cases, state-enacted codifications of the relevant fiqh
rules; 5) gradual integration of the Shariʿah courts into the national court system.
This reform movement had already started in the late Ottoman period when a series of
measures were taken to centralize and modernize the administration of the empire of which
the legal system was part through the creation of a bureaucracy with jurisdictions and pow-
ers, and later on, procedures, clearly defined by enacted laws. The aim was to submit the
operation of all the ensuing bureaucratic and judicial organs to identical procedures. Legal
predictability was sought by further limiting the capacity of qadis, muftis and other state
officials sitting on judicial councils to exert personal discretion. Special courts and councils
were created and new codes were enacted in the fields of penal and commercial law, though
they did not yet replace fiqh completely nor did the newly created secular courts replace the
qadi courts. Yet from 1886 their jurisdiction was limited to issues concerning personal status,
family, inheritance, retaliation and blood money, sharing jurisdiction with governmental
(niz․āmiyeh) courts whenever homicide was involved. Qadis were instructed to adjudicate
certain cases according to qanūn rather than fiqh, a requirement they were occasionally re-
luctant to follow. Their ranks, the duration of their terms and their salaries were fixed by
governmental decree.
With the foundation of the Republic of Turkey in 1917, qadi courts were abolished and
the legal system became entirely secular. However, the reforms introduced in the late Ot-
toman period had a lasting influence in Egypt, Iran and other areas of the Middle East that
remained under Ottoman rule until the First World War and which came to be subsequently
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Qadis and muftis
controlled by French and British colonial powers. Ottoman compilations of fiqh rules gave
way to codification proper in the realm of the Shariʿah; the fuqahāʿ were not deprived of the
capacity to interpret the Shariʿah but lost the monopoly they had traditionally exerted in that
regard to the benefit of the state.
In the areas controlled by the French, Italy and the Netherlands, the dual court system
and the legal pluralism introduced by the Ottomans remained, with family and inheritance
matters under the jurisdiction of religious courts – occasionally applying codified fiqh rather
than the standard law books – and the rest administered by secular courts applying laws based
on those of the metropolis. The above-mentioned duality persisted after these countries
achieved independence. In India and Nigeria, British colonial authorities preserved the local
qadi courts for the Muslim population and did not interfere in their outcomes as long as they
were deemed compatible with their understanding of ‘natural justice, good conscience and
equity’ (e.g. amputation or death by stoning sentences were commuted to imprisonment,
but pardon by the victim’s relatives was replaced by the death penalty in cases of murder).
A similar pattern was adopted in the Spanish protectorate of northern Morocco, a region
that was never part of the Ottoman realm.15 Adaptation of the Shariʿah to British legal and
ethical standards brought about the introduction of a series of regulations which gradually
modified fiqh provisions, especially in the punishment of crimes and torts, to be eventually
replaced by statute law. Colonial experience in India – where no division between ‘secular’
and ‘religious’ was initially put into operation but a hierarchy of first and appeal instances –
has determined the way that Shariʿah is currently applied in Bangladesh, India and Pakistan,
where ‘Anglo-Muhammadan law’ is applied by national regular courts. In Nigeria, and fol-
lowing it, in other African colonies, the British set up ‘native courts’, which enforced, in sim-
ilar conditions to those seen before, Maliki legal doctrine under the guise of ‘customary law’.
Judges were appointed by the local rulers (emirs) with the approval of the British governor.
Intervention in the judiciary by colonial powers resonates with the situation of the Mus-
lims in medieval Iberia – the so-called mudéjares – after the Christian conquest of al-Andalus
from the beginning of the 13th century CE onwards.16 The jurisdiction of the Shariʿah was
established by a non-Muslim authority, qadi courts operated under the supervision and con-
trol of an alien power who did not directly appoint but confirmed the candidate selected to
preside over them, and, as the British did in India and Nigeria, Shariʿah justice was occasion-
ally administered by Christian representatives of the crown with the assistance and advice of
Muslim experts.
Today, the Shariʿah is part of the national legal system of all Muslim-majority countries
except Turkey and Albania, where the Shariʿah is no longer applied by the courts. The other
end of the spectrum is occupied by Iran and Saudi Arabia, whose legal systems are dominated
by the Shariʿah. In the remaining cases, the law of the land is of Western inspiration, while
personal status, family law, inheritance, endowments and, only in some countries, financial
compensations for bodily harm and homicide are ruled by Shariʿah, though on the basis of
codes the compilation of which entails making a selection when divergent legal views apply
to a single question. Apart from the problem of the criteria and the interests privileged in the
selection process, codification reduces the flexibility of the legal doctrine and the judge’s lati-
tude since the possibilities for judges to find a solution fitting specific circumstances are dras-
tically limited in this way. Conversely, the application of codified Shariʿah no longer requires
expertise in fiqh. In many countries, the single qadi has been replaced by panels of judges.
Courts of appeal have been established occasionally without correlation between religious and
non-religious regular and high instances. Moreover Shariʿah courts are almost everywhere
controlled by national supreme courts. In Egypt, Tunisia and Algeria Shariʿah courts were
163
abolished in order to unify the judiciary, whereas in Saudi Arabia, Shariʿah has always dom-
inated the legal system. After Islamist movements took power in Pakistan, Sudan, Iran and,
because of popular pressure, northern Nigeria, Shariʿah has been ‘reintroduced’. The result has
been a return to a nominally Islamic legal system but not to pre-modern models of judicial
organization, nor to a replacement of the former nation-wide, unified and threefold17 court
system. In some cases Western inspired codes have been replaced by Shariʿah codes, but these
are applied according to the regulations on procedure and evidence established by the previ-
ous Western codes. In other cases like Egypt, ‘Islamization’ has been sought by introducing a
provision in the Constitution rendering the Shariʿah the ‘main source of legislation’ to which
the country’s laws must conform with a very limited practical impact in the legal system.
In most Muslim countries women can serve as judges, or as auxiliary judges, in secular
courts.
2.2 Muftis
If the authority enjoyed by the Shariʿah in modern times were assessed according to what
the state codification and state-enacted legislation have in store for qadis, the conclusion
would be a decline in its capacity to shape and regulate interpersonal relationships. Yet the
historical evolution of muftis – the other essential pillar for the translation of Shariʿah to the
society at large – tells a completely different story that is more in line with the result yielded
by other testing grounds, as transpired from present-day religious and political discourses.
Muftis’ capacity to face the changes brought about by the standardization and nationalization
of most legal systems in Muslim majority countries seems to lie in the dual nature of their
office. Muftis were and continue to be approached by private individuals informally and in-
dependently from political authorities and other legal institutions. At the same time they can
receive official appointments from the state to perform as advisers attached to public religious
establishments or as muftis of the land.
Fatwas, whether issued at the request of a private individual or of official authorities, are
considered to have helped to adapt the Shariʿah to changing circumstances better than any
other legal genre. The greater availability of fatwas in the pre-Ottoman period has produced
the impression that it is thanks to them rather than to qadis’ judgments that a legal doctrine
could be elaborated to answer practical needs and adapted to changing circumstances. Fatwas
would have been considered worthy of preservation because their applicability transcended
the specific circumstances that triggered their issue whereas the validity of judgments would
have been limited to the litigations they came to settle. Yet the question of whether or not and
to what extent the doctrines included in standard law manuals originate in opinions issued by
legal experts and not in legal precedents set by actual judgments is difficult to discern.18 Why
the specific circumstances that triggered a fatwa do not impeach the ‘universality’ of its im-
port but do so in the case of a judgment, is not clear to this student either. Whenever the state
did not have the capacity to keep systematic archives, the preservation of judicial records de-
pended on the jurists and their contents were lost in most cases, while other, more narrative,
legal writings were preserved without a problem. Conversely, when a state decides to compile
and archive official documents systematically it is because it has enough capacity and because
archives are thought to support the administration of the land and to enhance control over
its dwellers. Therefore it is possible to conjecture that the greater availability of fatwas in the
pre-Ottoman period is not due, or at least not only, to their capacity to inspire further legal
interpretation vis-à-vis judgments and actual legal documents, but to other factors related to
jurists’ position in society and the power relations involved in legal writing, documents and
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Qadis and muftis
compilations of judgments being more exposed to political instrumentalization than other

legal literary products. When local judicial practices (ʿamaliyyāt) and customs are wielded by
the jurists it is not always with the aim of making the administration of justice more predict-
able but to assert local idiosyncrasies vis-à-vis central political power.19 That the compilation
of fatwas was seen as fostering unquestioned following of earlier legal authorities (taqlı̄d) is
shown by the prohibition of engaging in that activity enforced by the Almohads throughout
their rule. In as much as taqlı̄d contributes to give unity and stability to the legal schools, ban-
ning fatwa collections may also be seen as a means to keep check on their power and explains
the jurists’ taste for that literary genre in particular, its success being an illustration of these
jurists’ capacity to resist external pressure.20
Formulations condensing the basic features of fatwa giving are already present in the
Qurʾan where terms derived from the root f-t-y and its synonyms appear to refer to instances
in which Muhammad is consulted about a certain question and God reveals the answer to
him (e.g. Qurʾan 2:189, 215, 217, 219, 220, 222; 4:126, 176; 5:5; 7:186; 8:1; 27:85; 28:84;
20:105; 79:42), whereas the need to seek and follow the advice of religious authorities is con-
nected with Qurʾan 4:63 and 16:43. In hadith literature, Muhammad’s legal advice adopts the
form of an immediate, of obligatory compliance, response to practical problems. The duty
to provide religious guidance was inherited by the Companions, their Successors and those
with a good command (ʿilm) of the Qurʾan and the traditions from the Prophet (i.e. ʿulamāʾ).
Though lacking the infallibility exclusive to the Prophet, during the first Islamic centuries
futyā contributed to refine the interpretation of the normative import of the Qurʾan, to col-
lecting and fixing the corpus of the Sunnah, and to the elaboration of a distinctive identity
and behavioural model that would crystallize in what we know as the Islamic Shariʿah.
Muftis functioned informally and independently from state control at the request of indi-
viduals, or groups of individuals, in need of legal advice. To perform as a mufti one needed
to be acknowledged as a religious authority and a pious person. No official titles were re-
quired; the scholars regulated their activities and established the conditions to exercise them
internally. The issuance of fatwas at the request of qadis and provincial governors dates back
to the Umayyad period (661–750). By the end of that period, fatwas had become an effective
means to express dissent and criticism in public as well as a powerful mechanism of religious
legitimization which rulers did not hesitate to use in exchange of lucrative governmental
positions if need be, thereby enhancing their capacity to control the jurists. The authority of
the ruler could also be denied by means of a fatwa.21
The emergence of fatwa collections from the second half of the tenth century CE on-
wards and until the present day testifies to the relevance of legal advice in the Islamic judicial
system. The literary mould of the fatwa has also contributed to channel the jurists’ interests
and concerns in a way to endow the legal establishment with enough uniformity to navigate
varying social, economic and political situations, whereby fatwas do also contribute to the
stability of the society at large.
In 11th-century al-Andalus, muftis occasionally advised non-qadi judges as well.22 By
the same time in Khurasan, the shaykh al-islām of a city was the head of the local ʿulamāʾ and
performed as chief mufti. The Mamluks appointed a selected number of muftis to serve in
the maz ․ālim courts and as political consultants; they also put muftis in charge of reinforcing
their authority in the main cities of Egypt and Syria.
As happened with the qadis, under the Ottomans, muftis were gradually incorporated
into a centralized judicial administration. The position of shaykh al-islām (şeyhülislam) or su-
preme mufti of the empire was introduced by Sultan Murad II (1421–1451). Based in Is-
tambul, the capital, the holder of this position stood at the head of a complex hierarchy of
165
provincial muftis and supported with his fatwas every important decision on domestic and
foreign policy that was taken by the sultans, including the legal and administrative reforms
of the 19th century ‘new regime’ era (Niz ․ām-i Jadı̄d) and matters regulated by qanūn or state
law. As his workload increased, his office underwent a process of bureaucratization; an offi-
cial department for issuing fatwas ( fetvas) was created and assigned a professional staff and a
supervisor to assist him.
Involvement in the Ottoman defence and commercial relationships with foreign powers
also made the Şeyhülislam a relevant diplomat figure and a valuable cross-confessional ally
and intermediary.23
The status and functions of provincial muftis varied. In the Anatolian and European prov-
inces, muftis were not experts in religious sciences but local elders who were called on by
qadis to confer authority on their decisions. In the Arab provinces, however, they continued
to operate in the traditional way. Queries used to be rewritten by scribes to facilitate brief
answers from the muftis.
Among the Shiʿis in Iran, Central Asia and South Asia muftis used to be referred to with
the terms mujtahid or faqı̄h. In time, they claimed for themselves the representation of the
hidden imām and could operate quite independently from the state. The highest temporal
authority among them came to be embodied by the marjaʿ ai-taqlı̄d, This figure, by virtue of
his scholarly and moral merits had to be considered a unique model of reference during his
lifetime and was in charge of guiding his followers with fatwas and other works meant to
clarify doubts and practical problems. The fatwa of a Shiʿi mufti is binding.
In Safavid Iran (1501–1722) the role of chief mufti and head of the religious scholars was
not played by the shaykh al-islām but by the ․sadr, who was also in charge of appointing qadis
and of supervising charitable endowments. In Timurid Central Asia he was in charge of all
religious matters and of issuing fatwas. In the Indian subcontinent and Central Asia judges
were not obliged to consult with a legal expert and muftis were not officially attached to
courts; the term fatwa did not necessarily mean the answer to a specific question and could
be used as a synonym of qawl or legal opinion dealing with issues that used to arise in practice.
More interestingly, pre-modern Indian fatwas were collected at the ruler’s initiative appar-
ently with the intention to provide the basis for the decisions of state courts.
Sharing knowledge and giving instruction about the correct interpretation of the Shariʿah
is a societal duty ( fard․ kifāya) that obliges those in possession of religious knowledge (ʿilm)
with respect to lay or less learned believers. If those who are in a position to fulfil the duty are
identified with the heirs of the Prophet, they also run the risk to be held morally accountable
for the sins and mistakes committed by their petitioners for following the wrong advice. This
dilemma was solved by exempting the mufti from any responsibility as long as he meets the
necessary conditions to perform the function and he acts in good faith: ‘Every legal inter-
preter is correct, if he is right he will be rewarded twice in the afterlife; if he errs, he will
receive only one reward’. Further on, a disclaimer in the form of ‘God knows best’ (Allāhu
aʿlam) is included in almost every fatwa.
Ideally, a mufti should be a mujtahid, i.e. a learned jurist capable of finding the ruling
(h․ukm) appropriate for a specific legal question in the sources of the Shariʿah, independently
of law schools. Yet theorists had to concede that binding the legitimacy of legal advice to the
capacity of engaging in independent legal interpretation was unrealistic and ended up by ad-
mitting lower levels of competence like the mujtahid al-madhhab, or even that of the muqallid.
In the first case, the scope of Ijtihād was restricted to the doctrine of a specific legal school;
the latter was allowed to issue fatwas following the opinions of the leading authorities of his
school or, in case of internal divergence of opinions (ikhtilāf ), the majority opinion (mashhūr).
166
Qadis and muftis
The formal conditions to perform as a mufti are similar to those required of a qadi with
a stress on the need to be, and identify oneself as, a jurist and the particularity of the admis-
sion of slaves and women to perform the duty. A qadi may issue fatwas concerning questions
unrelated to litigations presented before him. The elaboration of the fatwa follows the eval-
uation of legal indications (adilla) in the sources whereas that of the judgment results from
evidentiary arguments (h ․ijaj) like testimony, acknowledgements and oaths. Muftis strive to
find out the law corresponding to a given set of facts while qadis strive to establish facts,
assuming a set of laws. A fatwa is informative (khabarı̄) while a judgment is creative (inshā’ı̄).
Private muftis were supposed to give fatwas for free, though the practice to establish pious
endowments to provide for their material needs was widespread. In other cases, fees were
collected from questioners or their maintenance was assumed by the community or by the
public treasury, etc. Official muftis for their part received a salary or a fee.
Implied in the process of answering a query are complex ethical, social and interpretive
relations, such as the confidence the petitioner puts in the mufti’s qualifications and in his
capacity to dissipate confusion, the power the mufti can to exert over the mustaftı̄ on account
of the cultural capital represented by his knowledge of the Shariʿah, but also the shift in
moral and ethical responsibility involved in the very fact of asking, obliging the mufti to act
in accordance with the dignity of his function. Fatwas could be delivered orally and many
of them have probably left no documentary trace. From among written fatwas, only the rel-
evant ones have been collected and preserved. Yet Ottoman archives and certain schools in
India preserve large number of ordinary fatwas. A concise, even laconic fatwa is very likely
addressed at a non-specialist while an elaborate one that is argued at length can be assumed to
be delivered at the request of a jurist. Conventions regarding the physical appearance of the
text of the fatwa (e.g. using a single pen and a single piece of paper, the need to append the
mufti’s signature, etc.) also contribute to enhance its authority and that of its issuer.
Given that fatwas are not binding, an unsatisfied petitioner might seek a second opinion
from another jurist. Muftis engaged by competing litigants could end up playing a role sim-
ilar to that of the defence counsel. In that capacity, fatwas fostered people’s capacity to seek
justice in courts and to face abuse by judges and other state agents.
Since they refer to actual legal problems and scholarly concerns, both the istiftāʾs and their
answers are important sources for historians. They are legal in nature, however, reflecting
jurists and their interests in first instance; their drafting involves a considerable degree of
literary construction and the facts mentioned in them must be treated with caution before
taking them as representative of their time and place.24
A major shift in the production and reception of fatwas took place when print was intro-
duced in the central Islamic lands at the beginning of the 17th century. Apart from books,
fatwas started to be published in newspapers, magazines and journals, and legal opinions
drawn from official records started to appear in gazettes. It was not only a matter of dissem-
ination on a faster and wider transnational scale; format changes also brought about shifts in
their language and style.
During the colonial period, the religious guide provided by muftis was occasionally taken
over by the madrasas. In many cases, fatwas became tools for mobilizing the population in
the struggle against external dominance (not just political and military but also cultural and
commercial) and for national independence.25
Today, the power relations involved in futyā, i.e. the process and mechanism of issuing a
fatwa, have been altered by the changes experienced in the notion of knowledge, its modes of
transmission, the increase in the levels of literacy and modern technologies. The supremacy of
fiqh over the definition of law has been lost in favour of new modes of specialized knowledge
167
and Western-style law; lawyers and law professors trained in mainstream academic institu-
tions have displaced the fuqahāʿ as legal professionals. With codification, the already restricted
scope left for the interpretation of the Shariʿah passed from the hands of individual jurists to
national legislative bodies. Fiqh is taught in Islamic institutes and specialized law schools and
specific academic programmes for the training of muftis have been established in institutions
like al-Azhar in Egypt. Specialized committees charged with collective fatwa giving have
appeared in many countries, including Western ones, at times as an outgrowth of colonial ma-
drasas. Some of these organizations have been established by Muslim governments themselves
with the aim of controlling fatwa giving and to provide non-binding guidance to the state.
They have been attached to religious ministries, rather than the more contentious justice
departments. The most famous are in Egypt, Saudi Arabia, Lebanon, Malaysia, Indonesia and
Yemen. They are staffed by state-appointed muftis and their activities are regulated by leg-
islation. The staff may occasionally include women, entrusted with the task of giving advice
to other women.26 In Saudi Arabia, for example, the guidance provided by official muftis is
closely associated with the propagation of state religious ideology. Here, as elsewhere, official
fatwas provide religious legitimacy to the state.27 In Iran, fatwas were used to endorse the
creation of institutions like the Council for the Islamic Revolution and the Parliament.
Modern muftis continue to perform as judicial consultants in those areas still ruled by the
Shariʿah; earlier fatwas continue to be regarded as authoritative and to provide the basis for judg-
ments. Despite the decline of the Shariʿah in governmental legislation and governments, efforts
to control muftis’ activities, fatwas are still a vehicle for the expression of collective sentiment, a
channel for social and political activism, and a means to accommodate new societal conditions
brought about by economic, political, scientific and technological developments, though some
show little flexibility and ignore social change. Contemporary muftis’ doctrinal frame is no
longer restricted to a single legal school and they refer directly to the Qurʾan and the prophetic
Sunnah. Certain fatwas (e.g. Ayatollah Khomeini’s condemnation of Salman Rushdie or Egypt’s
Grand Mufti Ali Jumʿa’s call against female mutilation) have had a global impact and the term has
entered the mind of the average world citizen. The modern era has also seen individuals without
legal training issuing fatwas (e.g. Usama ben Laden’s call to attack Western interests).28
Literacy on the part of the petitioner, or the mediation of a scribe, is no longer requisite
to ask for a fatwa. Radio and television channels dedicate special shows to issuing fatwas in
real-time. With the turn of the century, radio cassette, video and CD fatwa recordings were
superseded by the new communication means made available through the internet. Today,
cyber muftis and depersonalized online fatwa sites are widespread phenomena. In past times,
questioners included men and women from all social extractions, whereas those seeking
spiritual and legal advice in the web are mostly, though not exclusively, women and Muslims
living in Western countries.
Notes
1 For a recent overview of the state of the scholarship on qadis, see M. Tillier, Les cadis d’Iraq et l’état
abbaside (132/750–334/945) (Damascus: Institut Français du Proche-Orient, 2009), 4–12.
2 See B. Johansen, ‘La corruption: un délit contre l’ordre social. Les qādı̄-s de Bukhārā’. Annales.
Histoire, Sciences Sociales 57/6 (2002): 1561–89.
3 See Tillier, Les cadis d’Iraq et l’état abbaside, chapter VI.
4 See D. S. Powers, Law, Society and Culture in the Maghrib 1300–1500 (Cambridge: Cambridge Uni-
versity Press, 2009); C. Müller, Der Kadi und seine Zeugen, Studie der mamlukischen H
․ aram-Dokumente
aus Jerusalem (Wiesbaden: Harrassowitz Verlag, 2013).
5 See B. Johansen, ‘Formes de Langage et Fonctions Publiques: Stéréotypes, Témoins et Offices dans
la Preuve par l’Ecrit en Droit Musulman’, Arabica 44 (1997): 333–76.
168
Qadis and muftis
6 Unless indicated otherwise, this narrative follows the structure and engages with the contents of
M. K. Masud, R. Peters and Powers, ‘Qād ․ ı̄s and Their Courts: An Historical Survey’, in M. K.
Masud, R. Peters and D. S. Powers (eds), Dispensing Justice in Islam: Qadis and Their Judgments (Leiden:
Brill, 2006), 1–44; M. K. Masud, B. Messick and D. Powers, ‘Muftis, Fatwas and Islamic Legal In-
terpretation’, in M. K. Masud, B. Messick and D. Powers (eds), Islamic Legal Interpretation: Muftis and
Their Fatwas (Cambridge, MA and London: Harvard University Press, 1996), 3–32; Masud et al.,
‘Fatwā’, in The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online. http://www.
oxfordislamicstudies.com/article/opr/t236/e0243 (accessed 24 July 2018).
7 See C. Müller, Gerichtspraxis im Stadtstaat Córdoba, Zum Recht der Gesellschaft in einer malikitisch-
islamischen Rechtstradition des 5./11. Jahrhunderts (Leiden: Brill, 1999), 181–2; D. Serrano Ruano,
‘Judicial Pluralism under the “Berber Empires” (Last Quarter of the 11th century C.E./First Half
of the 13th Century C.E.)’, Bulletin d’Études Orientales, Special issue on Le pluralisme Judiciaire dans
l’Islam prémoderne sous la direction de Mathieu Tillier, 63 (2014): 249–50.
8 For the case of the Almohad empire, see Serrano Ruano, ‘Judicial Pluralism under the “Berber
Empires”’, 260–70.
9 See K. Vikør, Between God and the Sultan: A History of Islamic Law (London: Hurst & Company, 2005).
10 See M. Tillier, Les cadis d’Iraq et l’état, ch. I, section 5.
11 Occasionally having led them to assume power in person. See the cases documented by Maribel
Fierro for the pre-modern Islamic West in ‘The Qād․ı̄ as Ruler’, in Saber religioso y poder político en el
Islam (Madrid: Agencia Española de Cooperación Internacional, 1994), 71–116.
12 The later aspect has been explored by Christian Müller in ‘Settling Litigation without Judgment:
The Importance of a H ․ ukm in Qād
․ı̄ Cases of Mamlūk Jerusalem’, in Masud, Peters and Powers (eds),
Dispensing Justice in Islam, 47–69.
13 A. Verskin, Islamic Law and the Crisis of the Reconquista: The Debate on the Status of Muslim Communi-
ties in Christendom (Leiden: Brill, 2015), 61–82.
14 See B. Ergene, Local Court, Provincial Society and Justice in the Ottoman Empire: Legal Practice and Dis-
pute Resolution in Çankiri and Kastamonu (1652–1744) (Leiden: Brill, 2003), 43–55.
15 On the judicial aspects of the Spanish colonial experience in Morocco, see M. Feria, ‘La justicia
indígena en la Zona Jalifiana del Protectorado español en Marruecos’, Awraq, Estudios sobre el mundo
árabe contemporáneo XIX (1998): 143–79.
16 A. Echevarria, ‘De cadí a alcalde mayor: la élite judicial mudéjar en el siglo XV’, Al-Qant․ara 24/1&2
(2003): 139–68 and 273–89. For the case of Sicily, see A. Metcalfe, ‘The Muslims of Sicily under
Christian Rule’, in G. A. Loud and A. J. Metcalfe (eds), The Society of Norman Italy (Leiden: Brill,
2002), 289–318.
17 Regular, appeal and supreme courts.
18 See also Masud, Messick and Powers, ‘Muftis, Fatwas and Islamic Legal Interpretation’, 19, where
the difference between fatwa and judgment is discussed drawing on Ibn Taymiyya and Ibn Qayyim
al-Jawziyya. According to both Hanbali jurists, the authority of judgments is specific (khās․․s) while
that of a fatwa is general (ʿāmm). In Ibn Qayyim al-Jawziyya’s view, rulings were not entered into
Shariʾah court records with the intention of serving as precedents and referents and were not pub-
lished, whereas important fatwas used to be collected in books and were widely cited and circulated
which enhanced their capacity to shape the law. It is in this connection that the role of the mufti
as a human interpreter of the sacred law may be seen as even greater than that of the judge. In my
view, however, the point that the validity of judgments was limited to the litigations at hand and
that they did not set legal precedents should be taken with caution; certain judgments are known to
have established legal precedents and these legal precedents are cited in legal sources as arguments
of authority (e.g. in collections of model legal documents). Pre-Ottoman court records were not
kept for referencing purposes, but this did not preclude their use as sources for the compilation of
fatwas and legal cases (nawāzil) like the works of the Malikis Ibn Sahl (al-Andalus, d. 1093) and
Muh․ ammad b. Ìyād․ (al-Andalus and the Far Magrib, d. 1179) show. The former drew on court
records he had access to after his experience as a qadi and judicial secretary to write his Kitāb al-
Ah․kām al-Kubrà. The second used materials from Ceuta’s court records to compile his Madhāhib
al-H․ ukkām fı̄ Nawāzil al-Ah
․kām. See D. Serrano Ruano, ‘Legal Practice in an Andalusı̄-Maghribı̄
Source from the Twelfth Century’, Islamic Law and Society 7/2 (2000): 187–234.
19 For the case of the legal practice of the city of Tunis under H ․ afs․id rule, see J.-P. Van Staevel, ‘Al-
mohades et mālikites de Tunis: Réflexions sur les relations entre élites civiles et gouvernants dans
l’Ifrı̄qiya des VIe/XIIe-VIIIe/XIVe siècles’, in P. Cressier, M. Fierro and L. Molina (eds), Los almo-
hades, problemas y perspectivas (Madrid: CSIC, 2005), 937–73.
169
20 See Serrano Ruano, ‘Judicial Pluralism under the “Berber Empires”’, 260–1, 266.
21 Like the ‘condemnation’ of Boabdil, the last Nasrid king of Granada, issued by a number of local
fuqahāʿ, or the fatwa declaring that the Ottoman sultan Murad V was insane, on the grounds of
which he was deposed in 1876.
22 See Müller, Gerichtspraxis im Stadtstaat Córdoba, 247–362.
23 See Joshua M. White, ‘Fetva Diplomacy: The Ottoman Şeyhülislam as Trans-Imperial Intermedi-
ary’, Journal of Early Modern History 19/2&3 (2015): 199–221.
24 See M. Fadel ‘Fatwas and Social History’, Al-Ùs․ūr al-Wust․à 8/2 (1996): 32–4; M. Shatzmiller, ‘On
Fatwas and Social History’, Al-ʿUs․ūr al-Wust․à, 9/1 (1997): 20–1.
25 See J. Hendrickson, ‘Muslim Legal Responses to Portuguese Occupation in Late Fifteenth-
Century North Africa’, Journal of Spanish Cultural Studies 12/3 (2011): 309–25; Verskin, Islamic Law
and the Crisis of the Reconquista, 106–28.
26 Like the female muftis attached to the Fatwa Department reporting to Abu Dhabi’s General Authority
of Islamic Affairs and Endowments. See https://www.theguardian.com/world/2016/aug/20/heard-
everything-women-fatwa-hotline-abu-dhabi?CMP=Share_iOSApp_Other. Courtesy of Justin
Stearns.
27 Sometimes endorsing controversial decisions like ex-President Mohamed Morsi’s death sentence
(http://www.middleeasteye.net/news/morsi-death-sentence-endorsed-egypts-mufti-website-
says-387631593).
28 The contents of which were denounced and condemned in the ‘Amman Message’. See Dallal, sec-
tion on Modern Usage in Masud et al., ‘Fatwā’, 13–14.

Bunt, Gary R. Islam in the Digital Age: E-Jihad, Online Fatwas, and Cyber Islamic Environment (London:
Pluto Press, 2008).
Hallaq, Wael. ‘From Fatwās to Furūʿ: Growth and Change in Islamic Substantive Law’. Islamic Law and
Society 1/1 (1994): 29–65.
Heyd, Uriel. ‘Some Aspects of the Ottoman Fetva’. Bulletin of the School of Oriental and African Studies
32/1 (1969): 35–56.
Masud, Muhammad Khalid, Joseph A. Kéchichian, Brinkley Messick, Joseph A. Kéchichian, Ahmad
S. Dallal and Jocelyn Hendrickson. ‘Fatwā’. In The Oxford Encyclopedia of the Islamic World. Oxford
Islamic Studies Online. http://www.oxfordislamicstudies.com/article/opr/t236/e0243 (accessed 24
July 2018).
Masud, Muhammad Khalid, Rudolph Peters and David Powers (eds). Dispensing Justice in Islam: Qadis
and Their Judgments (Leiden, Brill, 2006).
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Muftis and Their Fatwas (Cambridge, MA and London: Harvard University Press, 1996).
Masud, Muhammad Khalid. ‘Adab al-muftı̄’. In Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun
Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://referenceworks.brillonline.
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Krämer, Denis Matringe, John Nawas and Everett Rowson. Online at http://referenceworks.
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Press, 2002).
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The Madhāhib al-h ․ kām’. Islamic Law and Society 7/2 (2000): 187–234.
․ ukkām fı̄ nawāzil al-ah
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170
9
Ijmāʿ, consensus
Ahmad Atif Ahmad
Without consensus among scholars or professionals in any area of expertise, very little can
be achieved. Each social community also needs a few points about which all agree and no
one argues. What complicates theories of consensus in the religious law is that they must
develop an answer to the question of whether consensus can be reversed. That is, whether
and under what conditions a community of lay followers of a given religion or of scholars
of the religious laws may simply change their mind (or practice) about a matter, which they
held without any, or at least no significant, disagreement. The reversibility or irreversibility
of consensus is both the central question of Islamic theoretical jurisprudence’s treatment of
consensus and the key to testing the value of this consensus in a modern environment.
Let’s back up and demand conceptual clarity. What is consensus? In the manuals of the-
oretical jurisprudence, two types of consensus are identified, occasionally overlapping or
converging, demanding that the reader possess a considerable measure of caution. The first
is popular consensus and the second juristic or scholarly consensus. When you ‘rewind’ the
clock to the first Islamic century, the distinction between the two, while it does not disap-
pear, clearly thins out. One definition of consensus, reported in an eighth-/14th-century
source unequivocally excludes popular consensus. Zarkashi’s Bahr states
it is the agreement of all the qualified jurists (mujtahids) of the Prophet Muhammad’s
nation … this excludes the agreement of laypeople; their agreement or disagreement. It
also excludes the agreement of some [as opposed to all] scholars of the law.1
Disagreement by someone who achieved scholarly qualification to be part of the community

of juristic consensus after an agreement has been held about a matter does not breach the
consensus. When the subject of consensus is enlarged, as Zarkashi himself goes on in his
effort to collect all views on the matter, one must question the assumption that only schol-
arly agreement matters. Zarkashi relates that the subject of consensus may be a matter of law
(sharʿiyyāt), but it may also be a natural or theological doctrine (ʿaqliyyāt), a matter of social
standards (ʿurfiyyāt), or language standards (lughawiyyāt). If these ‘conventions’ are all included
in consensus, it is a subject that encompasses the agreements of the scholarly minority and the
broader majority of the Muslim community.2
171
Ahmad Atif Ahmad
1 Theory
1.1 Qarafi (d. 683/1285) and Razi (d. 606/1209) on consensus

Suppose we travelled 200 years back in time, from our starting point of the eighth/14th
century, and trusted a statement of the matter by the famed philosopher and jurist, Fakhr al-
Din al-Razi (d. 606/1209), which guides a seventh/13th-century commentary by the Maliki
jurist Qarafi (Nafaʾis al-Usul).3 The sedimented layers of the concept are revealed via two
central sets of discussions.
The first set of discussions concerns the window of consensuses and whether it may be,
while itself an instance of agreement and reconciliation, the outcome of heated disagree-
ment. Definite cases of consensus, Qarafi’s reader will conclude, are bound to occur within a
small window of time. The window begins with the Prophet’s death, because an agreement
on ‘interpretations’ of his teaching is meaningless in his lifetime.4 The window must then be
closed when ascertaining the agreement of scholars in the vast swaths of Muslim territories
becomes something of an impossible task.5 Many of us simply assume that Muslims agree
on basic matters, only to learn later that they even disagreed on what was included in the
Qurʾan itself.6 Most genuine consensuses are, in fact, agreements among the companions
of the Prophet, when the community of the believers and its active ‘intellects’ of legal and
moral guidance were all contained in a small number. The agreement should not be required
from the start. It could occur after disagreement, and it would be an acceptable consensus.
This leads to what some may consider an unlikely conclusion: that all historical consensuses
could have gone the other way. Abu Bakr argued that apostates must be fought, and he was
in the minority, and his argument led to a consensus to fight the apostates, but it could have
been otherwise.7
While Razi’s initial definition of consensus still attributes it to the community’s leaders or
those who have the power to bind and loose (ahl al-h ․all wa-l-ʿaqd), Razi’s third enquiry shifts
to the agreement of the community of the believers, which reflects, without a warning, that
any value assigned to consensus in religious laws must go back to a Qurʾanic verse that draws
a clear line between the Prophet and his community, on the one hand, and the remainder
of the world communities, on the other. This leads to the second set of questions, which
addresses what makes consensus authoritative. In a word, it is the language of the Qurʾan and
the Prophet’s instructions that draw the line between ‘Muslim’ and ‘non-Muslim’ at a point
of disagreeing with the views shared by the Muslim community. The Qurʾan (4:115–16) does
explicitly state that ‘those who oppose the Prophet’s and follow the ways other than those
of the believers will be left to their own devices and subjected to eternal punishment’ – a
statement that is followed, perhaps for emphasis, with a condemnation of those who dedicate
themselves to gods other than God Himself.8
In opposition to what Zarkashi told us, an important caveat is given by Juwayni
(d. 478/1085) regarding the subjects where the consensus should be taken seriously: these
must be matters of religion (samʿiyya) as opposed to pure rational or empirical matters. No
virtual infallibility should be presumed and ascribed to the body of Muslim societies. Mus-
lim societies will entertain prejudices and assumptions that may or may not be correct.
Hence, giving credence to views common among Muslims, or even Muslim scholars, in
non-religious matters has no basis. The Muslim community, lay and scholarly, is authorita-
tive only within the borders of its own code of moral and legal instructions, as opposed to
any universal code or scientific realm. This explains Ibn Daqiq al-ʿId’s (d. 702/1302) harsh
sounding statement against scholars who diverged from the beliefs of all Muslims in matters
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such as fidelity to the doctrine of bodily resurrection, in an apparent hint at Ibn Rushd’s
famous but understudied view.9
Why don’t we take this quotation as an excuse to go back to Juwayni’s Burhan and check
some of his insights in the subject?
1.2 Juwayni (d. 478/1085)

Two hundred years before Qarafi’s recapitulation of the scattered discussions on juristic con-
sensus lived Juwayni, the Persian jurist just quoted.10 He had reflected independently on
many of the mind-bending questions of consensus. We have already seen his exclusion of all
but one kind of issue from the realm of consensus. He essentially believed that the body of
Muslim believers and their religious law scholars possess collective authority only in matters
that may claim the pedigree of the religious revelation.
Juwayni’s Burhan also contains a few surprises. The majority of legal theorists, for ex-
ample, are reported to say that, in juristic consensus, the character of a jurist matters in
deciding whether this jurist may be included or excluded from being considered as part of
the authoritative body of jurists. Juwayni thinks this, while appearing to be an explicable
position, need not be the case. True, a man of bad character may even not be truthful about
reporting his own view (wal-fāsiq ghayr mus․addaq fı̄mā yaqūl, wāfaq aw khālaf ). But the bottom
line in these matters is whether the possibility of a reasonable disagreement is found. Cer-
tainly freedom (absence of slavery) and maleness don’t matter in considering a scholar to be
part of the community of consensus; slave and female jurists have been taken into account in
jurists’ discourses and research. Reaching the age of majority is, by contrast, expected of the
community of consensus.11
A legal theorist with little interest in the details of the law is another borderline case.
Juwayni here wavers. In the end he settles on considering a scholar of deficient knowledge
of the detailed law to be included only if this theorist’s objection is expressed, but when the
theorist is silent, the consensus carries the requisite authority. The point, in any case, is that
any reasonable argument that may weaken the consensus must be taken into account. All
those who are qualified to contribute to the discussion must be taken seriously, since one is
either a qualified or an unqualified jurist, and there is no third stage in between (laysa bayna
man yuqallid wa-bayn man la yuqallid martaba thālitha).12
1.3 Popular and scholarly consensus

In these discussions one notes that the matter of scholarly, as opposed to popular, consensus
seems increasingly a question of who the academy of Muslim jurists admits to its member-
ship. ‘Does character matter? And, is theoretical knowledge sufficient?’ fit in the world of
scholarly disputes. Concerns with the nature and verifiability of popular consensus (on mat-
ters such as prayers) has a different flavour.
Popular consensus is not consistently of a lower rank than scholarly consensus. At least, it
is not inferior in certain obvious cases. In fact, popular consensus may be more definitive of
what the law is than what one may read in jurists’ books. Muslims agree, for example, that
the required daily prayers amount to exactly five, not fewer and not more. If you consult
Hanafi law sources, a Muslim individual is obliged to perform six daily prayers – adding an
odd-numbered, usually three-unit prayer at the end of the night (the witr prayer) to the fa-
miliar five. After the effect of this surprise is over, one might ask: How is it that all Muslims
got it wrong and Hanafi jurists right? If one’s stamina allows one to keep on researching,
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one will learn that an adult Muslim is obliged, but is not obligated, i.e. addressed by a wājib
but not a fard․, to perform this sixth prayer. We are, then, back to the warm arms of popular
lay beliefs, which turned out to be correct after all. The religious law only requires five daily
prayers for Muslim adults.
The basis for considering consensus a safe source for the law was, as we learned earlier, a
few verses that warn the believers from abandoning the path set by the Prophet and the rest
of the believers. The authoritativeness and significance of this textual evidence was disputed.
All knew that even when the authority of consensus is established based on the Qurʾanic
revelation, it will still require much explanation from ‘reason’ as to how this authority is
interpreted in practice. Juwayni, not surprisingly, is certain that there is no Qurʾanic verse
that could establish the authority of the community, whether what is meant is the commu-
nity of scholars or all believers. Again, all knew also that unbelieving communities do agree
on certain matters, and the fact of their consensus points to issues these communities take as
authoritative and final.13
1.4 Consensus demystified

Abu Bakr b. Furak (d. 406/1015) has famously argued that consensus can only occur when a
whole generation with its qualified jurists is said to have passed away, with their agreement
intact. This is the so-called inqirad․ al-ʿas․r condition. Razi offered a dissent. The scholars of
each generation may educate scholars from a new generation, in which case one must wait
until the field is clear of legal authorities with the same dominant view undisputed. This will
never happen, he thought. If those who require the end of a generation say that one may only
stipulate the death of those of the older generation, in whose time the legal question arose
for the first time, one would be tailoring a definition of generation to save the requirement.
Razi instead thinks that this requirement is not needed at all and opts for what is a standard
to establish more, rather than less, instances of consensus, which is to say that a consensus
occurring for even a moment, albeit after a disagreement, is a binding standard and a source
of law.14
There is, I hope one can now see, no mystery in a consensus in what outsiders consider a
sacred law. Those qualified to be members of the community of the consensus (ahl al-ijmāʿ)
may agree after disagreeing and hence create a consensus. If they were to be divided, holding
two opinions, and then the whole group that held one of the two views disappears (in a natu-
ral disaster) or abandons the religion, the remaining view is a view that enjoys the consensus
of the community and is hence binding; if the second view is simply abandoned (without
the disappearance of those who held it), the same conclusion is reached.15 While these are
controversial, subtle matters, this understanding of consensus is the most consistent. But what
would be the point of this consensus?
This question takes us back to the starting point. Consensus is a useful, rather than re-
strictive, quality in a legal system. It provides a few anchors for legal reasoning. For the new
scholars, they may learn how to clarify the points of consensus in order to also learn where
one finds areas open to Ijtihād and personal reflection. But without these reported consen-
suses, the new students lack anchors for juristic research and discussion.
The system, at least in its Sunni side, has built mechanisms to get out of a consensus
when it is truly a burden for the scholarly community. One mechanism is more or less the
same as distinguishing the new cases, as is done in common law, but it has one more layer of
complexity. In common law, precedent is binding. One may only reject precedent within a
certain case by showing that the new case is different (distinguishable) from the precedent.
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In cases where an early consensus does not address a new legal scenario or case, a Muslim
jurist may also distinguish the new from the old, which was the subject of consensus. But one
additional layer must be added to this tool that is available to a Muslim jurist. The consensus
may have been held over a view that would be said to function in the new conditions but for
the fact that it would achieve the opposite purpose for which the consensus came to being.
The case of consensus to fight collective apostasy by war under Abu Bakr is a good example.
A new consideration of this question, looking into the purpose of the apostasy wars, which
was to unify the community, could negate the need to enter into collective wars with apos-
tates, even when a broad view of the conditions shows resemblance to the conditions of Abu
Bakr’s wars, that is to say, given that applying the old consensus in the new circumstance will
lead to a conclusion opposite to the one achieved by the old consensus. We will come back
to the apostasy question again when we look at examples of consensus in the modern world.
1.5 Zarkashi (d. 794/1392) and the irreversibility question

With calmer minds, we can now take a final look at old debates on the question of the ‘re-
versibility of consensus’, aiming to get a sense of the flavour of these debates.
For Zarkashi, the question of the irreversibility of consensus appeared to be one question
among many.16 In fact, one way of looking at the question is to see it as a false dilemma, a
question of terminology. The question looked something like this: If abrogation is specific to
revelation, there can be no ‘abrogation’ of consensus. Once a consensus is established, a new
consensus may not reverse it. Another way of almost sidestepping the matter was to cling to
the idea that ‘consensus’ is there to tell us what cannot be mistaken. If it were possible for
that reversal to occur, that would indicate that one of the two instances of consensus was
mistaken, which makes it a non-consensus; consensus can only be indicative of that which
is true.17
Zarkashi enumerates four conditions for consensus to become ‘established’ (mā yastaqir bihi
al-ijmāʿ). These are:
• That it is known that the agreeing generation accepted the doctrine of the consensus
both in theory and practice.
• That it is not breached by a disagreement by a participant in the consensus. ʿAli’s re-
ported reversal of his view (shared by all during the reign of his two predecessors, ʿUmar
and ʿUthman) that concubines who bore children for their masters may not be sold ends
the consensus on the matter.
• That the consensus generation fully dies out. Ibn ʿAbbas is reported to have reversed
views to which he conceded under ʿUmar, explaining his reversal by his fear of dis-
agreeing with ʿUmar.
• That a member of a subsequent generation who becomes a competent contemporary of
the old generation does not dispute the consensus.
None of these conditions, as many will have assumed, escapes contest, as Zarkashi’s multiple
voices attest.18
The question of the reversibility of consensus is mechanically divided into two questions.
The first is whether one generation can reconsider its own consensus. This could not be taken
to mean the vacillation that takes place during deliberation, such as the case of waging war
against the apostates of Arabia. The second question is about reconsideration by a subsequent
generation of an earlier decision. A theological approach assumes, in both cases, that if it were
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a consensus at all, it would not be reversed. The reason that consensus is authoritative is a
religious dictum, which distinguishes consensus from ‘straying’. If this religious dictum were
to be seen as true, two consensuses could not clash, because there are not two truths in one
and the same matter.19 But this is also an opening to seeing that a false problem is being solved
here. If two ‘ostensible’ consensuses seemed to have been reported, one could not be a genuine
consensus. A consensus is reported that the testimony of a slave is allowed in court and another
consensus is reported that it is not; a consensus is reported that ‘analogical reasoning’ is permis-
sible and Ibn Hazm reports an opposite consensus. Only one of these reports can be correct.20
The outcome of these disagreements on how a consensus may establish an area of the law
with forgone, secure conclusions is that there is no guarantee that a consensus may safely es-
cape breach in normal circumstances. Once you reflect on the examples of juristic consensus,
you will realize that the legal scenarios they govern are specific in their circumstance. The
point of consensus, in simple language, is providing a stronger guarantee for the views that
were shared either by the community of scholars or by the whole population from recon-
sideration. Reconsidering the ideas that previous generations are reported to have agreed on
is not taken off the table. An argument from consensus, thus, does represent a higher wall
to cross or a more firmly locked gate to open, compared with other arguments. The key to
opening the gate would be that any new cases must be distinguished from the cases and sce-
narios that are reported to have acquired unanimous consent by an earlier generation.
1.6 Is consensus a Sunni affair?

It is no secret that Shiʿi scholars think of consensus as Sunni business. If there is such a thing
as consensus, for Shiʿis, it may be based on an unidentified, yet final and efficient, authority –
that of the imam. After all, an agreement is as valuable as those who made it. In other words,
the value of consensus is derived from the group that held a doctrine without disagreement.
Zaydi and Jaʿfari jurists believe that the imam, the only real authority in matters of law, is
part of the consensus of the righteous community, which is what lends this consensus value.
Is consensus, then, a Sunni affair? Sunni law constitutes the bulk of Islamic law. This is
true by size and quality. Shiʿi law retained distinctive features and original solutions to per-
tinent problems, which gradually made it capable of reaching areas unknown in the Sunni
practice of law.
One must note, however, that Shiʿi law functioned within smaller populations and could
still be further divided into the Zaydi, Jaʿfari and Ismaʿili factions. It did not suffer as much
from a surplus of legal views as a deficit. It hence had a different task in its pursuit of the
standardization of authority. In addressing the potential of mixing authoritative and un-
authoritative views, the Shiʿi traditions prescribed the ingenious solution of building law
around the imitable authority – an individual, rather than a group of scholars. Those abreast
of the law, the learned circles, had to figure out among themselves how to negotiate their
own disagreement.
Borders between Sunni and Shiʿi legal doctrines and views, however, are often more
illusory or nominal than real. Erudite Sunni scholars unhappy with the results of Sunni
consensuses found the views of Shiʿi jurists to come in handy as spoilers of consensus. In
some cases, one can find at least one reported view by a scholar against the consensus, even if
another view attributed to the same scholar that comports with the consensus is found. Jaʿfar,
for example, is reported to have allowed bequests to be given to inheritors who are assigned
standard shares of the inheritance, while the consensus is that only outsiders, such as charities,
can benefit from the will, within the limit of 33.3% of the inheritance.
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Despite an overall sense that even eccentric Sunni views did not spoil an otherwise
widely reported consensus,21 Sunni reliance on Shiʿi disagreement to argue against consen-
sus is an interesting feature of the debates on consensus. This feature, in any case, clearly
indicates that Shiʿi disagreements did matter for some Sunni jurists and was not simply seen
as irrelevant.
All this applies to the later centuries of Islamic law, because in its early centuries, debates
in Kufa and Medina were the norm and claimed consensuses were rare. Indeed, one of the
ironies of legal research on the question of consensus is that the early centuries were the time
to easily ascertain the occurrence of consensus, and some cases of consensus were claimed,
but it was in the late centuries that more unverifiable claims of consensus were tossed around.
In any case, the early centuries are also a time where distinctions between Sunni and Shiʿi
would make little sense. Medina was the birthplace of both Jaʿfari and Maliki reflections on
practical matters, but no one should imagine councils of scholars debating lists of legal doc-
trines in the second/eighth century, sifting through which laws are agreed upon and which
ones are a matter of disagreement.
It remained true that consensus in Shiʿi law was of secondary importance, compared to
its Sunni standing. The early Shiʿi authorities were few and limited in number. The crisis in
Shiʿi law was one of deficit of law, as I said, rather than a surplus. When al-ʿAlama al-Hilli
attempted to develop Shiʿi legal doctrines in the seventh/13th century, he heavily relied on
Sunni sources, such as Ibn Qudama and Nawawi. More recently, Shiʿi jurisprudence seemed
to walk ahead of Sunni jurisprudence in matters of government and political organization as
well as family and market laws. The process of emulation may thus be reversed. This segues
to the questions of consensus and modernity.
2 Modernity
2.1 One tradition encapsulating the world

The challenge of modernity that faced the Islamic traditions of legal and moral reasoning is
characterized, even in this one volume, differently by different authors. For the purpose of
the study of juristic and popular consensus in the Muslim world, we are advised to look at it
as a new requirement the old traditions had to meet: to encapsulate objections and views that
are not, for a want of a better word, autochthonous to it. In other words, Muslims had to at-
tend to arguments of a global and universal reach as they considered their own narrow-scope
consensus.
If this was a crisis, it hid an opportunity. The modern Islamic legal tradition sharpened
some of its old tools to decide which consensuses were meant to survive the change in con-
ditions in modern life. In the remainder of this essay, we will take up three of modernity’s
questions that touch on matters either perceived to be, or having certainly been, matters of
consensus in the past.
2.2 Apostates, mixed marriages and inheritance laws

The subsequent three short sections (2.2.1, 2.2.2, 2.2.3) will cover the following questions:
1) Whether an individual apostate, who has been proven beyond doubt to be an apostate,
must be given an opportunity to repent and then be executed – which is a reported view
that enjoyed the consensus of jurists.
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2) Whether a non-Muslim man’s marriage to a Muslim woman may be valid, albeit

temporarily.
3) Whether a rearrangement of old inheritance laws to fit the new structures of modern
Muslim families is acceptable.
While consensus is cited as the foundation for executing individual apostates and the imme-
diate repudiation of any marriage between a Muslim woman and a non-Muslim man, and
is similarly seen as the basis for the core of inheritance laws based on determined fractional
shares, modern scholars were not absolutely sure a consensus was in fact operative in all these
cases. They had to consider each of these questions separately, clarifying in the process a few
elements:
1) A clear statement of each question and its answer, attending to all conditions and
qualifications.
2) The nature of the reported consensus, its sources, and whether both the doctrine of
consensus and its foundation was taken for granted.
2.2.1 Wars and political crimes

Fiqh manuals repeat a version of the following statement: That the execution of apostates is
based on consensus. The purported consensus, however, is a consensus among the early com-
panions that the apostates of Arabia must be fought. We have already mentioned this when
we considered how this consensus was generated; it was a matter of disagreement among the
companions, and a consensus to follow Abu Bakr’s lead emerged from the deliberation. But
there is no question that the object of consensus is ‘collective punishment’ of apostates by
waging war on them. In actual practice, and this is another matter, Abu Bakr did not give the
same instruction to wage war discriminately; he asked the leaders of each army division to
camp at a distance and test whether the community that has been reported to revolt against
the Muslim community did in fact conduct their lives as Muslims, as attested by such activ-
ities as the call to prayer. In any case, there is no consensus that individual apostates may be
executed.
Yet, if war constitutes what American lawyers would call ‘due process’, by which an in-
dividual (fighter) may be deprived of life, the step may be taken to consider the execution
of an individual apostate a sub-set case within the same consensus. Juristic manuals do sup-
port this understanding. In books on ‘ridda’, the subject is clearly the execution (rather than
the waging of war) of individual apostates, with the caveat that an invitation to ‘repent and
retract’ be issued to this apostate before execution. Sufyan al-Thawri (d. 161/778) is said to
have demanded that this invitation be extended without time limit, apparently contradicting
the punishment of execution.
Again, moving forward, the question remained whether a consensus to execute individ-
ual apostates that derives from the initial consensus to wage wars against the early apostates
amounts to anything more than a shell-consensus, so to speak, since individual apostates
must come up in court cases that require laborious evidentiary and other judicial and ju-
ristic tests.
Cases of individual or small group apostasy also confirm the suspicion that once this be-
comes a judicial matter, each judge’s discretion moves to the centre of the legal discussion.
There were even cases where disagreement arose among first-rate authorities within the same
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school of law regarding which acts or statements qualified as instances of apostasy. The Shafiʿi
authority Taj al-Din al-Subki’s (d. 771/1369) famous ruling to execute individuals who slan-
dered the first two companions of the Prophet (al-shaykhan) caused a stir, because it appar-
ently relied on stretching a principle that emanated from Maliki legal reasoning. Ibn Hajar
al-Haytami (d. 955/1566)22 pointed out the discrepancy, raising doubt that a Shafiʿi judge
would normally be allowed to rule in the case in a similar manner. More than three centuries
later, Ibn ʿAbidin (d. 1252/1836) refused the very idea that one may execute in apostasy cases
should there be any doubt in the matter.23
Ibn ʿAbidin sits on the cusp of modern life, as a century later, the fall of the Ottoman
State and formation of national states gradually made an execution for treason more intel-
ligible than an execution for apostasy. This is the context in which the consensus to exe-
cute individual apostates was subjected to further scrutiny. The fact that ‘apostasy’ must be
seen as a religious and a political crime muddied the water further. As things stand today,
while claims that apostates may be executed based on religious dictum or fatwa exist, the
support of political power is an essential element to make a religious ruling on the matter
worthy of reflection. When individuals take it upon themselves to implement an optional
or non-binding religious ruling (fatwa) of apostasy, these appear to be nothing but cases of
assassination, unpacked by the mixed religious and political authority of the old consensus
to fight apostates.
2.2.2 Modern Muslim women and their marriages

Fiqh manuals also repeat a version of the statement that the prohibition of a non-Muslim man
from marrying a Muslim woman is based on consensus. Not only that, in cases where two
non-Muslims are married and the wife subsequently converts to Islam, her marriage to her
non-Muslim husband automatically dissolves.24
The tradition is a bit more complex here, compared to the previous question. The
Prophet’s own daughter, Zaynab (d. 8/629), was married to a maternal cousin of hers
named Abu al-ʿAs b. al-Rabiʿ (d. 12/633) even before the Prophet emigrated from his
hometown of Mecca to Medina. This emigration was the line of separation between the
nascent Muslim community and the broader pagan community. When Zaynab left with
her father, the Prophet Muhammad, she was in her early twenties. Her marriage to Abu
al-ʿAs, whose character the Prophet had opportunities to praise, did not dissolve automati-
cally. In fact, their marriage is the reason for visits by Abu al-ʿAs to the Muslim community
during moments of conflict between pagans and Muslims, which led Hanafi jurists later
to develop the ‘theory of aman’ or permission for temporary residence by non-Muslims
among Muslims. Abu al-ʿAs did ultimately convert to Islam and spent some time with his
wife as two members of the same Muslim community. Be that as it may, the consensus
is still reported to prohibit a) the initiation of a marriage involving a Muslim female and
a non-Muslim male and b) the continuity of such marriage if it were to result from the
conversion of a female to Islam without her husband’s conversion. The consensus is dated
to the aftermath of the Zaynab-Abu al-ʿAs arrangement, which preempts any argument
against it from the Zaynab story.
Ibn Hajar al-Asqalani’s long commentary on Bukhari is one pre-modern source that an-
ticipates the modern controversy.25 Ibn Hajar tells us that Zaynab’s marriage to Abu al-ʿAs
spanned six years, during which the Prophet Muhammad did not repudiate her marriage to
her husband. Muslim jurists, Ibn Hajar repeats, agree that a Muslim woman cannot initiate a
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marriage with a non-Muslim man, and that, should a female non-Muslim convert to Islam,
while her husband remains a pagan, the marriage dissolves.
Ibn Hajar’s commentary takes the sayings and actions of the Prophet (Sunnah) as the
foundation of the laws, which indicate in this case that the jurists’ agreement may not be in
line with the Prophet’s practice, unless, as they say, this action by the Prophet was abrogated
(cancelled and made ineffective) by a subsequent law. For jurists who follow the standard
tradition of legal reasoning, this abrogation is a matter of consensus.
The Prophet’s practice in Zaynab’s case may have been a necessity in the beginning of the
community’s life, in other words, and was later ‘abrogated’ (i.e. cancelled) by the Prophet
himself when he denied any new marriages between a Muslim female and a non-Muslim
male. Ibn Hajar does not always provide his own final answer to the questions he brings up
and is, in fact, content to provide a full account of the disagreement in relation to the Proph-
et’s tradition. Modern reformers will employ new kinds of reasoning from Muhammad’s
tradition that reach different conclusions about what the law should be in modern times and
in places where Muslims live among a non-Muslim majority.
2.2.3 Inheritance today

While consensus in inheritance laws is unavailable in many crucial matters, such as distribut-
ing the inheritance of a man who left enate (maternal only), cognate (maternal and paternal)
and agnate (paternal only) brothers, there is an overall agreement, for example, that siblings,
males and females, distribute their shares at a ratio of 2:1 if they inherit as an agnatic famil-
ial group (‘as․aba). The 2:1 ratio is certainly not standard, but it obtains in some cases. This
doctrine came under significant scrutiny in a modern context where not only did the roles of
males and females in society change considerably, but the argument that the male endures a
higher financial responsibility itself fell flat.
On this question, debates rage. Most modern states have modified the old religious laws
of inheritance to reflect the Muslim communities they serve. In places such as Indonesia, old
instances of folk-laws (ʿādat-laws) are already a modification of the simple 2:1 ratio.26 In many
Muslim countries, modern laws simply changed the inheritance schemes sufficiently to leave
the old arrangement only a narrow window of application.
3 Conclusion
3.1 The legacy of consensus

ʿAbd al-Ghani ʿAbd al-Khaliq (1908–1983) argued that consensus is the only foundation with
which one can hold any legal doctrine without doubt. The language of the Qurʾan and the
Prophet’s Sunnah are matters of disagreement, at least if one is undeterred by the rules of
traditional interpretation. Of course, within each madhhab or school of law, the options are
limited by the school’s standards of legal reasoning. Once these restrictions are removed, no
doctrine is immune to revision.
ʿAbd al-Khaliq’s is certainly a powerful modern reading of the institution of consensus. It
is clearly a position of its time. More importantly, the increasing vulnerability of consensus
to revision and reversal, for some modern Muslims, is a positive development; many decry it.
In any case, the Sunni tradition of theoretical jurisprudence provides limited solace. If recog-
nizable authorities in the law agree, as long as they distinguish their questions from those that
have been matters of consensus earlier, this may serve as a foundation for new, stable laws.
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3.2 The utility of consensus

Consensus remains a significant tool to measure the extent of a community’s tolerance of
disagreement. Shiʿi dismissal of consensus notwithstanding, consensus served, in the ʿAbd al-
Ghani ʿAbd al-Khaliq interpretation just indicated, as a signifier of ‘secure knowledge’. ʿAbd
al-Khaliq argued that in no way could one be certain that a man may not take nine wives if
it were not for the consensus that a verse that indicated that, at least in the aftermath of war,
a man may take ‘two, three, four wives’ – given that the verse remained silent as to whether
these were indicative of four as the absolute upper limit or indicative of an aggregate of the
three numbers (2 + 3 + 4 = 9). This view is one we must take with a grain of salt, as our
discussion has amply showed, but it has its successes, just as it has its limits.
3.3 The consensus doctrine in theoretical jurisprudence

The value of this study is to show how a legal system (or a group of interlocking legal systems,
such as medieval Islamic law and modern Middle Eastern laws) fills its own gaps and where
its future may be going. It is true that Islamic law did not always look or function like a legal
system with a community of scholars bound by agreements that can be established, tested
and employed to create a foundation for consistency. And, while we have a good number
of cases where even major Muslim muftis and judges were ‘corrected’ by contemporaries
and subsequent generations of scholars for ruling against a juristic consensus, there were no
judicial institutions that could test whether consensuses are observed. There was, after all,
no supreme court for Muslim communities or even for each madhhab to function as arbiter.
Notes
1 Muhammad b. Bahadur al- Zarkashi, Al-Bahr al-Muhit fi Usul al-Fiqh, ed. A. Abu Ghudda, vol. 4
(Kuwait: Ministry of Religious Affairs, 1992), 436.
2 Ibid.
3 Ahmad b. Idris al- Qarafi and Muhammad b. Zakaryya al- Razi, Nafaʿis al-Usul Sharh al-Mahsul,
ed. ʿAbd al-Mawjud and Muwwad (Riyadh: Baz Pub., 1995).
4 Qarafi, Nafaʾis, vol. 6, 2561.
5 Qarafi, Nafaʾis, vol. 6, 2544–6.
8 Qurʾan: 4:115–16.
9 Zarkashi, Al-Bahr, vol. 4, 527–8.
10 Abu al-Maʿali ʿAbd al-Malik b. Yusuf al-Juwayni, Al-Burhan fi Usul al-Fiqh, ed. ʿAbd al-ʿAzim al-
Dib (Doha, Qatar: Matabiʿ al-Daʿwa al-Haditha, 1399/1980).
11 Juwayni, Al-Burhan, vol. 1, 688–9; art. 632–3.
12 Juwayni, Al-Burhan, vol. 1, 685–8; art. 634–5.
13 Juwayni, Al- Burhan, vol. 1, 672–3; art. 620–1.
16 Zarkashi, Al-Bahr.
21 Even the disagreement of Zahiris would not definitely be a spoiler. See Zarkashi, Al-Bahr, vol. 4,
471–4. Similar discussions are found about consensus despite the disagreement of the few (one or two).
22 Ibn Hajar al-Haytami, Al-Sawaʿiq al-Muhriqa ʿala Ahl al-Rafd wa-l-Dalal wa-l-Zandaqa (Beirut:
Muʾssasat al-Risala, 1997).
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Ahmad Atif Ahmad
23 Ibn ʿAbidin, Majmuʿat Rasaʾil Ibn ʿAbidin, vol. 1 (Cairo: M. H. Kutubi, 1325–1907), 366.
24 See for example: Ibn Qudama, Al-Mughni, ed. A. al-Hilw, vol. 10 (Riyadh: Dar ʿAlam al-Kutub,
1997), 10–11.
25 Ibn Hajar al-ʿAsqalani (d. 852/1449) (ed. M. al-Khatib), Fath al-Bari Sharh Sahih al-Bukhari (Cairo:
al-Matba’a al-Salafiyya, 1980), vol. 9, 420–4.
26 Daniel S. Lev, ‘The Supreme Court and Adat Inheritance Law in Indonesia’, The American Journal
of Comparative Law 11(2) (Spring 1962): 205–24.

Ali, Abdullah bin Hamid. ‘Scholarly Consensus: Ijmaʿ: Between Use and Misuse’. Journal of Islamic Law
and Culture 12(2) (2010).
Ibn Qudama. Al-Mughni. Ed. A. al-Hilw (Riyadh: Dar ʿAlam al-Kutub, 1997).
Juwayni, Abu al-Maʿali ʿAbd al-Malik b. Yusuf al-. Al-Burhan fi Usul al-Fiqh. Ed. ʿAbd al-ʿAzim al-Dib
(Doha, Qatar: Matabiʿ al-Daʿwa al-Haditha, 1399/1980).
Qarafi, Ahmad b. Idris al- and Muhammad b. Zakaryya al- Razi. Nafaʾis al-Usul Sharh al-Mahsul. Ed.
ʿAbd al-Mawjud and Muwwad (Riyadh: Baz Pub., 1995).
Zarkashi, Muhammad b. Bahadur al-. Al-Bahr al-Muhit fi Usul al-Fiqh (Kuwait: Ministry of Religious
Affairs, 1992).
Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Resources
in Arabic and Islamic Studies (Atlanta, GA: Lockwood Press, 2013).
182
10
Superior argument
Ahmad Atif Ahmad
The inquiry on al-taʿādul wa-l-tarjı̄h․ or al-taʿārud․ wa-l-tarjı̄h․ in Islamic theoretical jurispru-

dence addresses, in general terms, what jurists should do when they encounter in their legal
research what appear to be conflicting arguments of equal strength. Juxtaposed with this,
both within the same school of law (madhhab) and for an independent jurist (mujtahid), one
finds in Islamic juristic practice many scenarios where a jurist faces what appear to be equal
and conflicting arguments or ‘reasons’ for deciding a case or a doctrinal question one way
or another. This is a problem both Sunni and Shiʿi law systems take seriously. In modern
national laws, judges also apply rules to decide which indicators of the law trump others.
This is what is usually meant by the term ‘the conflict of laws’ and in some cases ‘jurisdic-
tion’ enquiries. This is relevant to applications of Islamic law in Muslim nations today, and
in some interesting cases, the relevance of Islamic law to a modern case under consideration
is decided via ‘conflict of laws’ mechanisms. Finally, a conflict of arguments can be adjudged
within the court hierarchy, where a higher court applies a standard by which to cancel the
argument of a lower court by means of a superior argument. This article attempts to cover
these points in a broad way.
1 A very, very brief history
1.1 Consider, first, a medieval Sunni summary of the matter

This is how Baydawi (d. 658/1260) introduces the subject.1
Could two arguments be totally equal in strength? Karkhi (d. 410/1020) says no and
others think it possible. If it is possible, then the jurist simply picks one – so said Baqillani
(d. 402/1013) and the two Jubbaʾis, Abu ʿAli (d. 303/916) and Abu Hashim (d. 321/933) – or
both arguments cancel each other out. On the first view, when a judge applies one of the
competing arguments in one of his rulings, he could not use the other position and argu-
ments in a new but identical case. In other words, he cannot swerve back and forth between
the two equal arguments. The Prophet is reported to have instructed Abu Bakr al-Siddiq
(d. 13/634) to not rule differently in what is in fact one matter.
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The question at the beginning, then, is whether such a condition is possible. If you
believe that jurists are searching for one law, God’s law, would not there have to be a suc-
cessful set of arguments by which to arrive at this law? Isnawi (d. 772/1370) takes it from
here, stating that his discussion of it falls under four queries, three on equal but conflicting
arguments and one on determining what superior argument is. The three queries on equal
argument address the presence of conflicting sources of the law that could not be eliminated
or sidestepped, i.e. to the Qurʾan and juristic consensus. The Qurʾanic verses in ostensible
conflict can only be a matter of a legist’s research that finds an instance of ‘particular’ lan-
guage in one verse and ‘general’ language in another, or an instance of abrogation, where
a subsequent verse cancels an earlier one. Juristic consensuses, similarly, do not genuinely
clash. Both the Prophet Muhammad’s reports and reasoning based on analogy, by contrast,
are subject to determining which is superior and which inferior. These are the proper subject
of superior argument.
Before delving into this discussion, let us clarify the question at hand. We have noted that
Baydawi’s text introduces the matter of conflicting but equal arguments as itself a matter of
disagreement. He reports that some legal theorists thought it happens and others did not.
What he neglected to mention, according to Isnawi, is that this discussion addresses whether
this conflict is possible when we consider the full scope of an argument. In other words,
what jurists disagreed on is whether a group of first-rate scholars could exhaust a given en-
quiry, assembling all reasonable and acceptable arguments that pertain to it, and ultimately
conclude that these arguments are both equal in strength and irreconcilable in indication.
Baydawi could have also told us something about this condition of equality-cum-conflict
of argument within and inside the same intellect – the mind of one jurist. Isnawi states that, were
he to do that, he would have told us that there was no disagreement that this condition was
possible; in fact, it may simply be too obvious and mundane. What is a bit more inscrutable,
given its theological and logical implications, is the condition of ultimate impasse, where all
the minds think equal and conflicting arguments are all there is.
Is it really possible for jurists to labour all the way to find that there are conflicting ar-
guments of equal power? Some legal theorists simply refused to think that this could take
place. Abu al-Hasan al-Karkhi and Ahmad b. Hanbal, according to Ibn al-Hajib’s reporting,
were among this group. They argued that, were this to happen, it would lead to accepting
‘contradiction’ (in Arabic, ijtimāʾ al-mutanāqid․ayn). Were jurists to make an unreasoned pick,
ignoring one argument and following the other, this would be an acknowledgement of the
presence of mere nonsense and chance, a condition completely devoid of purpose. It would
be an acknowledgement, in effect, of the presence of disorder in God’s presumably orderly
world. Were jurists to be given the liberty to choose one side that is to their liking, this would
be the rule of desire. Were the questioner to be given the option of choosing whichever
conclusion they prefer, this would lead to an equal if not a worse absurdity – the categorical
preference of permissibility and ease over responsibility and commitment. There must simply
be a superior argument, according to this camp.
Isnawi then inserts a note of clarification, taking away what appears to be the require-
ment of the fulfillment of an insurmountable task. There is no denial that arguments
leading to certainty cannot conflict; nor can an argument leading to likelihood or high
Consequences of accepting that arguments may be both equal and conflicting
Contradiction Rule of desire Disorderly universe
Figure 10.1.
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Superior argument
confidence truly conflict with one leading to certainty. What is possible is a conflict be-
tween two arguments that yield a position one may hold with high confidence, rather than
certainty.
Contrasting with the view attributed to Karkhi, the majority of legal theorists say
these equal-cum-conflicting arguments do exist. They appear to see things differently
and in a way more simply and realistically. This is reported by Razi (d. 606/1209), Amidi
(d. 631/1233) and Ibn al-Hajib (d. 646/1248). It is not difficult to imagine, so goes the
argument, that two upright reporters of what the Prophet said or did would diverge, one
reporting the presence of an event or statement and the other reporting its absence. This
group of theorists then attacked the view of those who rejected equality and conflict in
arguments. They said the logical division the rejecters consider is missing an important
possibility, the very simple possibility that the conflicting arguments be reconcilable. That
is to say, that the conflicting arguments be considered as elements or components of one
and the same argument. The jurist must, at the end of the day, apply his reasoning to this
condition, preferring one element of the argument to another or simply declining to rule
on the matter. In any case, one may acknowledge all this and refuse to say that the con-
flicting elements of an argument would all be abandoned, when they seem to lead the jurist
in different directions.
What remains is a note on the provenance of this idea that a disorderly universe must be
posited, if conflicting indicators of seemingly equal power present themselves to the mind.
Isnawi states that this idea originates from the Muʿtazili tah․sı̄n/taqbı̄h․ doctrine. This doctrine
assumes that the human mind, being able to detect the qualities that make an act ‘good’ or
‘bad’, should not find itself in an impasse, where conflicting indications of what is good or
bad are available. There simply must be a way to decide the goodness and badness of good
and bad; otherwise, this tool – the human mind – is not what we assumed it was. Isnawi gives
this quick identification of the argument’s source without a comment. His reader will take
Isnawi’s silence as a kind of sneering, given that by now, the reader will have encountered
multiple instances of attacking Muʿtazili doctrines by Isnawi, including instances of attack
on this very skeletal doctrine.
In Isnawi’s reporting, Amidi (followed by others, such as Urmawi (d. 682/1283)) ex-
plained that, in some cases, one act may bear two different rulings. An owner of 200 camels
may, for example, pay his zakat/alms by delivering four camels that are three years of age or
five camels that are two years of age. The rulings are different, but they apply to two different
acts in the natural world and do not entail an unacceptable conclusion. As for two conflicting
rulings applying to the same act, this is possible but not acceptable in the eyes of the law. In
effect, a legal convention saves the practitioner of the law from the wild world of unhinged
logical possibilities.
In Amidi’s Ihkam, the matter is presented as a matter of tarjı̄h․ or deciding what is superior
argument as an outcome of taʿārud․ or ‘conflict’ – plain and simple. Amidi stipulates that tarjı̄h․
is needed when two arguments satisfy two conditions. They each must be in conflict with
the other (the taʿārud․ condition) and be capable of indicating a conclusion (salah ․iyya). This
excludes arguments that could not lead to a conclusion, but it does not set up the matter as
an epistemological crisis per se. Conflicting indicators exist, and one may be evaluated more
favourably over the other, but one need not acknowledge that a state of equality between the
two arguments, however apparent or ostensible, is there. In other words, tarjı̄h․’s prerequisite
is simply taʿārud․ (presuming ․salāh
․iyya) not the potentially problematic taʿādul.2
Staying with laws and legal conventions and setting logic aside, we now consider practical
solutions to this condition when it seems to arise. The practical solutions are the ones we
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Ahmad Atif Ahmad
learned earlier: Some say that a pure act of choice of argument by the jurist will do. This is
the view of Abu Bakr al-Baqillani (d. 403/1013) and al-Jubbaʾis – uncle and nephew, whom
Baydawi mentioned. Others say conflicting arguments cancel out each other, and the human
act under consideration becomes permissible or neutral – the principal condition of human
activities before the law. If what is under consideration is simply a private matter in the jurist’s
life, he gets to choose. If it concerns others, he gives the questioners all options. If it is a ju-
dicial matter, he must make a decision, since he cannot leave it up to conflicting adversaries.
Once he takes a decision in one case, all similar cases must be decided similarly, because of
the Prophet’s instruction of Abu Bakr, which Baydawi cited.
1.2 The conflict of laws in one and the same school

You will have noticed in the above discussion that there were two ways to look at God’s
cosmic plan. The Muʿtazili view, as described here by an Ashʿari author, is that the human
mind must be able to assume a consistency in God’s plan for the world and for humans in
it and must be able to discern qualities in human acts that allow the jurist to judge these
acts as good or bad. The Ashʿaris have relinquished this task and acknowledged that things
sometimes do not add up, and this is part of why the divine ways are above human compre-
hension.3 While this disagreement has some consequences, it is not always consequential. In
most juristic debates, the scholars will argue practical solutions, eliminating arguments and
supporting others.
Legal knowledge is distinct from natural knowledge by its standing on manufactured
authority. If I am the lawmaker, I can say this is the law, and it does not have to be consistent
the way knowledge of nature is imagined or presumed to be. Yet a premodern jurist, unlike
a lawmaker of absolute authority, must explain his conclusions. The only meaningful crisis
of equal-conflicting legal imperatives is transferred to the inside of the jurist’s mind (if one
jurist is building a system) or to the clique of legal elites inside a legal system (as in modern
national laws, for example).
When one and the same person finds conflicting indicators or considerations leading him
in different directions, he may not be able to answer the question at all. But he may also
answer it twice. This is what we colloquially refer to as being ‘of two minds’ about some-
thing. One of the medieval jurists whose ability to apparently produce two different legal
systems in one lifetime was the founder of the school that our Isnawi followed – the Shafiʿi
school of law.
Somewhat counter-intuitively, Shafiʿi scholars argued that their school founder’s
two-doctrine school system was an indication of the strength of his scholarly mind and
religious prudence. In practice, a two-doctrine school system required more work from
the school followers, since they had to develop some tools to decide which doctrine to pick
when these are in conflict. One tool jurists use is to measure the conflicting views against
other views by the same scholar, in order to decide which one of the conflicting views is
more consistent with other views by the same jurist. As a broad principle, these scholars
said, the doctrine Shafiʿi held when he lived in Egypt, toward the end of his life, is deemed
superior to his Iraq-time views. In a few cases, approximately 19 (depending on how a jurist
counts juristic questions, since legal questions are interrelated), the old (Iraq) doctrine, when
reported with certainty, is considered superior. What complicates the matter for Shafiʿi
jurists is that an additional standard, which is ‘conformity with incontrovertible textual
evidence (hadith),’ is used to decide which of the school founder’s views carries the day. It
was an instruction by the school founder himself, Shafiʿi that is, to his followers that led to
employing this standard.
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Superior argument
1.3 Now: consider a disagreement on the Friday prayers in Jaʿfari law

In the absence of the imam, the legitimate leader of the community, Jaʿfari jurists wonder how
duties such as the Friday prayer may be fulfilled. A consensus is reported that the prayer is
obligatory, based on an apparent instruction in the Qurʾan,4 requiring good reasons for a claim
to an exception to be made.5 An opposed consensus stipulates, among other requirements,
that the permission of an upright imam is required, and draws partial support from the simple
fact that people tend to gather for bad reasons more frequently than they gather for good.6
The reason we end up with ostensibly equal and conflicting arguments, then, is that there
is no question that the presence of the imam or his deputy ( jurist) is a condition in the prayer
and there is also no question that the prayer is obligatory. The continual absence of the imam
and his deputy does hence create something of a paradoxical situation. But, of course, there
are solutions to paradoxes, which will only appear to be illusory after the solution.
Arguing the first position, that the prayer remains an obligation, the Second Martyr, Zayn
al-Din al-Amili (d. 966/1558) first acknowledges the powerful disagreement on the matter.7
Yet, he is adamant that he has the tools to resolve it. The side that argues that a ‘call to the
prayer’ (adhān) is valid only when performed by the rightful authorities does have a point. He
comes back, however, with a rebuttal:
Once a command establishes an obligation, my conclusion is established. This is based on

the consensus of all Muslims, our fellow scholars [Shiʿis] and the bulk of Muslims [Sunnis]
included. The obligation is not, in itself, contingent on the adhān or proper call to prayer.
It is simply made to appear conditional in order that the call be taken seriously – such that
some scholars stated that the adhān itself is a separate obligation. The same is true regarding
a requirement of ‘moving toward a place to perform the prayer, since it is a requirement
because it leads to a requirement. But if moving to a place to perform the prayer is a re-
quirement, the prayer itself is actually the ultimate requirement, since the act of moving
․asan) without requiring it.8
itself cannot be seen as good (h
Unlike their Sunni counterparts, Jaʿfari scholars could adjudicate disagreement, eliminate
it in effect, and show that either the equality or the conflict of the arguments is illusory.
Many of their ground rules rhyme with, when they are not mirror image of, those given by
Sunni legal theorists. In an introduction to his commentary on al-ʿAllama al-Hilli’s Summary
of the Law (Mukhtasar al-Sharaʾiʿ), Jamal al-Din Miqdad al-Suyuri (d. 826/1423) provides
a statement of method on evaluating conflicting legal dicta.9 He first states that sectarian,
often desire-bound, opinions have diverged, the correct path of the People of the House
(the scholars of authority in Jaʿfari law) being the one chosen by the author. While already
cutting the number of choices for a jurist, this fundamental turn toward specific authorities
does not eliminate all disagreement. Al-Suyuri moves on to enumerate the authorities of the
school (madhhab), from Muhammad al-Baqir to his son, the school’s eponym, Jaʿfar al-Sadiq
(d. 148/765) to al-Kazim (Musa), the fifth, sixth and seventh of the 12 leaders of the com-
munity. He warns that reporting from these authorities is not of the same quality. In some
cases, the reporting produces knowledge that is close to certain, having acquired the status
of ‘abundantly reported’ (mutawātir). In other cases, all you have to go by is a single reporter
or a handful of them. The latter, in turn, can be of different (totalling six) types. The author
essentially offers two scales, one describing the quality of the reporters, descending from the
highest (sah․ih
․), all the way to a report with deservedly blameworthy reporters (daʿı̄f ). The
other scale attends to the connectability of the chain of reporters from known and connected
(musnad) to a report whose authorities are not even fully identified (mursal).10
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Ahmad Atif Ahmad
Suyuri then addresses the different classes of legal reports and views. Pointers to favourable
evaluation of one report or view over the other are indicated by language such as ‘al-ashhar’
(ie. the more common report), ‘al-azhar’ (the more accepted in fatwa), ‘al-ashbah’ (more con-
sistent with other school doctrines), ‘al-ah․wat․’ (the safer choice to satisfy or remove personal
responsibility) ‘al-akthar’ (more common among jurists), ‘al-ansab’ (a synonym for al-ashbah)
and ‘al-awla’ (decidedly superior view, based on a certain a rationale). He then attends to the
possibility of a gridlock or the presence of conflicting and equal arguments by introducing
the term ‘taraddud’.11 He finally makes it one of the tasks of his commentary to spell out juris-
tic disagreements and the manner in which one report or view may be seen as superior over
the other (wajh al-azhariyya wa-l-ashbahiyya wa-l-as․lah․iyya) and the reasons jurists may encoun-
ter cases where deciding who is right remains unattainable (manat․iq al-taraddud).12
1.4 Come modernity

One can invite new types of heated disagreement when one considers, in a modern environ-
ment, the question of whether conflicting arguments can be of equal strength and whether
reconciling existing arguments (or data) is necessary all the time. Deciding these matters will
depend on what phenomenon one is considering. There will be no interesting disagreement
about the certainty bequeathed by a universal, sensory experience, such as deciding the exis-
tence of a flower based on observing it. But there is scientific knowledge that the image of the
sun we possess is a dated, 7-minute-old image. Sensory experience tells us something wrong
here, and we must then concede that certainty did not result from the senses.
There must be those who believe that so-called conflict of arguments leading to certainty
ought to be eliminated from serious academic research. On this view, there is no such a thing
as arguments leading to certainty, which in turn means that a conflict of two arguments lead-
ing to certainty is an imaginary problem. But I will take it that certainty remains an issue,
and moderns (philosophers and laymen) maintain the desire to reconcile arguments and keep
the faith that conflicting arguments can only lead to a temporary wonder (or crisis) that must
end after further research is conducted.
The reason these ostensibly irrelevant scientific and logical/epistemological discussions
come to mind here is that questions of what establishes human knowledge were part of the
question of how humans obtain legal knowledge, which medieval jurists are asking. Re-
member that these jurists are looking for a law that regulates human action, and this law, in
its essential design, is made by a magnificent, omniscient, omnipotent being and must reveal
itself to these human minds as they labour to extract it. Even as these jurists made distinctions
between and among types of human knowledge, including human knowledge that affects the
law, they could not imagine a whimsical universe, or a whimsical God, and a need for juristic
sleights of hand to make the world consistent.
2 The medieval abrogation and the modern

temporal conflict of laws
One of the three options to reconcile conflicting arguments is to assign the conflicting laws
they produce to different times or temporal frameworks. This applies particularly in the area
of texts. The assumption is that a subsequent text cancels out an earlier text. The Qurʾanic
texts themselves bear the possibility of abrogation, but abrogation is applicable in Sunnah
texts more frequently and abundantly.
This is one area where medieval Islamic law’s theorization of superior argument finds a
near exact equivalent in modern laws and may thus serve as a segue to modern applications
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Superior argument
of the idea of superior argument. The essence of abrogation, as we said, is that texts of later
temporal provenance cancel out texts of earlier provenance. Whether it is the Prophet’s law
or a modern legislative body’s laws, the idea is the same.
In all Sunni schools, temporary marriage was allowed. Sunnis believe that this permission
was abrogated. Jaʿfari jurists do not agree with this view.
In modern law, temporal jurisdiction of legislation may be debated. Article 917 of the
1949 Egyptian Civil Code states that,
were a person to transfer his/her property to one of his/her inheritors but keep physical
control of the property and draw benefits from it for the remainder of his/her life, the
property transfer is presumed to fall under the laws of the will – as long as no evidence
militates against this presumption.13
One clash of legal imperatives relevant to article 917 concerns its retroactive application. It is
not in disagreement that the law of gifts was extracted from personal status laws and made a
normal part of civil law proper.14 Conflicting legal imperatives, however, persisted. Does ar-
ticle 917 retroactively apply to inheritance that occurred before 15 October 1949, the date the
code became enforceable? This hinges on whether the article establishes a substantive law or
a rule of circumstantial evidentiary presumption. If the former, it does not apply retroactively
at all. If the latter, it tells the judge that when ambiguity befalls a certain property that is part
of an inheritance, where the property was given in sale or as a gift to one of the inheritors but
not delivered before the death of its owner, the judge must take the incomplete delivery as a
presumption that the property was intended by the deceased to be part of the inheritance. Its
retroactive application remained a matter of juristic disagreement.15
3 Zooming in on the modern
3.1 Conflicting legal imperatives in modern Islamic law

In his Remedies for Breach of Contract in Islamic and Iranian Law,16 S. H. Amin points to an ar-
gument by Shaykh Murteza Ansari (1781–1864) on the conditions that allow rescission of a
contract. One condition is when the fulfilment of the contract is so much of an undue burden
that it creates a mandate for ‘rescission’. In this case, two conflicting considerations of equal
power, the initial commitment created by the contract and the consideration of avoiding
undue burden, clashed. As a result, the jurists decided to consider them to be ‘null and void’ –
appealing, that is, to the idea of conflicting and equal considerations cancelling out each other.
There is nothing particularly Iranian or Jaʿfari about the idea of considering ‘undue burden’
grounds for revoking a commitment or rescinding a contractual obligation. Let us give an
example from medieval Islamic law and one from modern Egyptian law to make this case. In
medieval Sunni law, iqala (or rescinding contractual commitments) was recommended to party
A in a contract in which party B has what we call buyer’s remorse. Medieval Sunni jurists have
also considered the extent to which iqala (or rescinding contractual commitments) may involve
unacceptable modifications to the initial contract. For example, a standard permissible loan or
sale may be modified into a usurious transaction, once a rescission is conducted improperly.17
Article 147/2 in Egypt’s Civil Code states that,
should exceptional, unforeseeable conditions of a general character arise, and should

their rise lead to a condition where the implementation of a contractual obligation be,
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Ahmad Atif Ahmad
while not impossible, so burdensome for the party carrying a debt, leading to an inev-
itably and unusually large loss, the judge, taking the circumstances of the case and the
interests of both parties in the case into account, may resize or restate the obligation to
a reasonable threshold … and all disagreements against this estimate become null and
void.18
Now we go back to modern Iran. Modern Iranian jurists took the crisis of conflicting legal
imperatives and turned the crisis into an opportunity. They applied the conflict of legal
imperatives in a creative manner to solve the problem of the prohibition of usury, which
they inherited from medieval Islamic law, which seem to be un-implementable in modern
financial contexts.
Here we witness a broad application of the idea that conflicting considerations cancel
one another out. The result is a restatement of the legal obligations of those who are parties
to a contract leading to a financial obligation. Rescission of a contract and a contractual
obligation is caused by the presence of ‘undue burden’, effectively overpowering the initial
contractual commitment. Beyond this rescission, a modern Iranian lawyer, jurist and judge
all aim at a fairer or more just formula for contracts involving monetary obligations that are
affected by money’s constant loss of value.
Modern Iranian lawyers have tried to understand why dealing in usury appeared to be
so unfair in medieval markets, while prohibiting usury in modern financial markets is what
appears to be unfair. The point here is the conflict between two considerations, which also
appear to be of equal power. The first consideration is that, in a medieval loan or inadvertent
debt emanating from medieval market dealings, the lender is guaranteed a profit, while the
borrower is not. In modern market dealings, money simply loses value over time. Unless it is
invested, its value decreases. Keeping the value of a debt at the same level as its initial amount
(at the time of its transfer from lender to borrower) is, in effect, committing a degree of injus-
tice toward the lender. Modern Iranian lawyers thought that the discretion given to a judge
to implement ‘judicial remedies’ to correct an imbalance in a contract allows for a normal-
ization of reasonable interest on loans. They thus state that a contract establishing an unfair
return of the same monetary value creates a legal imperative in competition with the legal
imperative of avoiding unjust commitments and undue burdens in contractual obligations.
3.2 Superior argument in modern Egyptian civil law

The father of modern civil law in Egypt, ʿAbd al-Razzaq al-Sanhuri (1895–1971), famously
enumerated four sources of modern (civil) Egyptian law, in this specific order: 1) legislation;
2) custom and tradition; 3) the Islamic Shariʿah; and 4) natural law and the principles of eq-
uity. This is according to the language of article 1/2 (article one, paragraph two) in Egypt’s
1949 civil code.
Let us step back and explain the framework in which we are operating here. In modern
Egyptian jurisprudence, legislation by the people’s representative (The People’s Assembly or
House of Representatives) is called a foundational source of law of general reach (al-masd․ar
al-As․lı̄ al-ʿām). Religion, Islamic law, has been historically considered a foundational source
of restricted reach (al-mas․․dar al-as․lı̄ al-khās) more potent in family and probate matters than in
purely civil law matters.19 Religion, now broadly incorporating both Islamic law and other
Egyptian religious laws, has been (i.e. remains) the main source of the laws governing family
and charitable endowments. But with the advent of the 1949 civil code, it is also acknowl-
edged as a complementary source of the law (al-mas․․dar takmı̄lı̄ ) applying in all civil matters.
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Superior argument
By the same code, social customs and standards are counted as another complementary source
of the law (al-mas․․dar takmı̄lı̄ –) filling in gaps created by the absence of direct legal rules gov-
erning a case.20 The sources’ theoretically determined reach does not preclude the potential
of being equal-cum-conflicting in certain matters. We must now note that the fourth of the
four sources of the law enumerated above, namely natural law and the principles of equity,
is seen as a source of interpretation for legal codes, and it means to provide a reference to
the objectives of the law or its basic rationale or essence ( jawhar al-qanūn) rather than being a
separate source for it.21 Conflicting arguments of equal power will simply arise from friction
among the first three sources of the law: legislation, religion and custom.
Article 917 of Egypt’s Civil Code, which we have considered as an example of how con-
flict of laws may be resolved by the principle of temporal jurisdiction (later laws abrogate
early laws), gives us an example here. The article states that,
were a person to transfer his/her property to one of his/her inheritors but keep physical
control of the property and draw benefits from it for the remainder of his/her life, the
property transfer is presumed to fall under the laws of the will – as long as no evidence
militates against this presumption.22
Medieval Sunni Islamic law would consider this a case of undelivered gift, which, if admin-
istered while the owner is in full possession of his health and mental capacity, is valid and
hence excludes the purported property from the inheritance. Article 917 makes the transfer
essentially invalid. An un-delivered gift is a non-existing gift.
Conflicting legal imperatives involve medieval Islamic law’s role in modern laws in Egypt
in an array of issues. The marital contract, for example, while part of the category of contract,
is governed by special principles of Islamic legal provenance. Challenges to these principles
come in different forms and measures. Repudiating the marriage of a Muslim female to a
male, whose belonging to the Islamic faith is in question, led to well-publicized controversy
in the 1990s (known as an apostasy case, mistakenly because Egyptian law does not consider
apostasy to be an offence). In these matters, the secular commitments of the Egyptian judi-
ciary are tested once and again.
4 The idea of an appellate system

Whether it is reconciling Shafiʿi’s two doctrines, conflicting legal codes that compete for
geographic or temporal jurisdiction, or even conflicting sources of the same national law
(religious, customary and legislative), there are standards by which all conflicting elements
of legal argument can be forced into harmony. But what happens when judges disagree, not
about how to interpret a legal principle or reconcile conflicting ones, but about how to ap-
ply relevant principles to one and the same case? If you still remember the opening sections
of this essay, Isnawi paid attention to this matter from the start of his discussion of ‘superior
argument’, and he thought the solution lay in the Prophet’s instruction to Abu Bakr not to
act as two judges in the same case. In Isnawi’s discussion, we do not hear about two judges
having authority over one in the same case. Though the modern appellate system was not in
place, this condition was addressed in medieval Islamic jurisprudence. But it was addressed
as an exception to the rule, an example of judicial failure leading to judicial correction. In
the modern context, where judicial correction is normalized, a new argument is needed for
considering a supreme court’s decision juristically and legally superior to a district court’s
decision.
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Ahmad Atif Ahmad
This last segment of the essay then addresses how a hierarchy of courts adds texture to
the question of reconciling conflicting arguments and identifying superior argument. It is a
test of how conflicting arguments of equal strength are treated in modern judicial practice.
A hierarchy of courts, ascending from local to appellate to yet higher courts of cassation
and supreme courts, while political and arbitrary from a legal and epistemological stand-
point, may take care of the problem. That is, because a final word will be rendered and
made obligatory for all lower courts when a supreme or high court decides a matter about
which the low courts disagreed, the disagreement is resolved once and for all. But is this
all there is? Is law finally a wrinkle of political science, unable to provide its own defence
for its behaviour?
5 So, what have we learned?

From the material we have presented here, both of pre-national and national laws, and both
of the Sunni and Shiʿi traditions, there are four conclusions one may make with reasonable
confidence.
The first conclusion concerns the medieval Sunni tradition. The discursive legal space
(in fiqh) that is occupied by conflicting-cum-equal arguments is larger than legal theorists,
such as Baydawi and Isnawi (in us․ūl al-fiqh), have covered. Medieval usūl theorists think that
true conflict among equal arguments is limited to Sunnah and qiyās. This is where a jurist
has to work either to eliminate the equality or the conflict of the arguments. By showing
that one report (hadith) or one analogy-based argument is superior to another, the equality
is eliminated. By reconciling one with the other, the conflict is eliminated. In fiqh practice,
every evaluation of conflicting arguments follows the same pattern. When two arguments
seem to be opposed in the conclusions to which each point, either their equality or conflict must be
eliminated. The Sunni legal theory of evaluating arguments provides a point of convergence
and connection (a motherboard of sorts) for the rest of Islamic legal reasoning that attends
to legal argument.
Second, while Shiʿi juristic reasoning seems to differ significantly from its Sunni coun-
terpart (e.g. the presence of tah․sı̄n/taqbı̄h․ arguments and the absence, in theory, of qiyās argu-
ments), something of the same picture is found as to how conflicting and equal arguments are addressed,
especially when it comes to the negation of ‘equality’ among arguments. Since qiyās is either ignored
or considered not authoritative, conflict in reports (akhbār) is the focus of usūl treatments of
conflicting, equal arguments, at least since al-ʿAllama al-Hilli (d. 726/1325). In practice, a
broad battery of tools is found that assists the jurist to resolve conflicts-in-argument that may
lead to legal indecisiveness. This process also takes an intergenerational form. That is, some
arguments that made it to older works of jurisprudence are weeded out in later sources by
showing these arguments did not stand up to scrutiny. This exercise is especially true of later
(Hilli and Amili) Jaʿfari authorities, such as Miqdad al-Suyuri al-Hilli (d. 826/1423) and
the First and Second Martyrs, Jamal al-Din Makki al-Amili (d. 786/1385) and Zayn al-Din
al-ʿAmili (d. 965/1558). This process continues to operate until the modern centuries. In the
19th century, when Murteza Ansari wrote his Faraʾid al-Usul, Jaʿfari us․ūl al-fiqh continued to
offer the limited discussion on the conflict of akhbār, while the practice continued to cover
the same broad scope, and a process of revising Jaʿfari doctrines continued until our time.
The third point to make is that modern laws in the Middle East have inherited some-
thing from the medieval tradition but also developed novel principles and practices. Chief
among the latter is a new understanding of ‘abrogation’ as a manifestation of law-making
bodies’ modification of their early reasoning and laws. This led to new enquiries. Laws, in
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Superior argument
the modern sense, conflict with one another in their temporal and geographic jurisdiction.
The resolution of their conflict does not involve a decision on the relative quality of the
arguments behind these laws. The law-making bodies do engage in evaluating the merits of
arguments for the laws, but judges and lawyers simply learn how to resolve laws’ conflict based on
mechanical rules.
The fourth and last conclusion concerns the modern appellate system. The very idea
of a higher court in a stable and airtight hierarchy is a modern innovation. It does half
the work, if not all of it, in resolving how to evaluate conflicting arguments. The superior
argument today is underpinned by a political decision, which in some cases comes down to a
military decision.
Notes
1 Jamal al-Din al-Isnawi (d. 772/1370), Nihayat al-Sul fi Sharh Minhaj al-Usul, ed. Muhammad B.
Mutiʿi, vol. 4 (Beirut: ʿAlam al-Kutub, 1343/1924), 432–8; a gloss on al-Baydawi (d. 658/1260),
Minhaj al-Usul in one publication.
2 Sayf al-Din al-Amidi (d. 623/1233), Al-Ihkam fi Usul al-Ahkam, ed. ʿAbd al-Razzaq ʿAfifi, vol. 4
(Riyadh: Dar al-Sumayghi, 2003), 291.
3 Immanuel Kant’s antinomies of reason.
4 Qurʾan, 62:9.
5 Zayn al-Din b. Ali al-ʿAmili (al-Shahid al-Thani = the Second Martyr) (d. 966/1558), Rasaʾil
al-Shahid al-Thani, vol. 1 (Qumm, Iran: Markaz al-Abhath wa-l-Dirasat al-Islamiyya, 1999), 175.
6 Ibid., vol. 1, 197, 204.
7 Ibid., vol. 1, 171–250.
8 Ibid., vol. 1, 176–7.
9 Jamal al-Din Miqdad b. Abdullah al-Suyuri (d. 826/1423), Al-Tanqih al-Raʾiʿ li-Mukhtasar al-Sharʾiʿ
(a commentary on al-ʿAllama al-Hilli’s Mukhtasar), ed. A. al-Kuhkamri, vol. 1 (Qumm, Iran, n.p.,
n.d.), 8–9.
10 Ibid., 7–9.
11 Ibid.
12 Ibid., 10.
13 Hasan Kira, Us․ūl al-Qanun (Introduction to Egyptian Jurisprudence) (Cairo: Dar al-Maʿarif, 1958),
503–6.
14 Ibid., 322.
15 Ibid., 503–6.
16 Seyyed Hasan Amin, Remedies for Breach of Contract in Islamic and Iranian Law (London: Royston
Limited, 1984), 29.
17 Ibn Rushd (d. 596/1198), Bidayat al-Mujtahid wa-Nihayat al-Muqtasid, 6th edn, vol. 2 (Beirut: Dar
al-Maʿarif, 1982), 141.
18 Kira, Usul al-Qanun, 492. Kira’s discussion in this context concerns retroactive applications of laws,
especially when the new rule is a matter of binding public law, qāʿida āmira mutaʿilliqa bil-nizām
al-ʿām.
19 Ibid., 319.
20 Ibid., 332–3.
21 Ibid., 527–9. An application of these natural law principles appeared in respecting intellectual property
and patent before modern Egyptian law attended to them in legislation. Kira, Usul al-Qanun, 530.
22 Ibid., 503–6.

Amidi, Sayf al-Din Ali b. Muhammad al-. Al-Ihkam fi Usul al-Ahkam. Ed. ʿAbd al-Razzaq ʿAfifi (Ri-
yadh: Dar al-Sumayghi, 2003).
ʿAmili, Zayn al-Din b. Ali al-. al-Shahid al-Thani, or, the Second Martyr. Rasaʾil al-Shahid al-Thani
(Qumm, Iran: Markaz al-Abhath wa-l-Dirasat al-Islamiyya, 1379/1421/1999).
193
Ahmad Atif Ahmad
Kira, Hasan. Usul al-Qanun (Introduction to Egyptian Jurisprudence) (Cairo: Dar al-Maʿarif, 1958).
Isnawi, ʿAbd al-Rahim b. Hasan Jamal al-Din al-. Nihayat al-Sul fi Sharh Minhaj al-Usul. Ed. Muham-
mad B. Mutiʿi (Beirut: ʿAlam al-Kutub, 1343/1924).
Suyuri, Jamal al-Din Miqdad b. ʿAbdullah al-. Al-Tanqih al-Raʾiʿ li-Mukhtasar al-Sharaʾiʿ. Ed. A.
al-Kuhkamri (Qumm, Iran: n.d.).
194
11
Maqa‐s.id al-Shariʿah
Felicitas Opwis
Introduction
The legal discourse on the maqās․id al-Shariʿah, commonly translated as purposes, objectives
or intentions of the Shariʿah, arises out of practical considerations of finding rulings for situ-
ations unprecedented in the textual sources of Islamic law as well as theological discussions
over the nature of God and His revealed word. The Qurʾan contains numerous references
indicating that God acts purposefully and provides wisdom (e.g. Q. 23:115; 4:113; 17:39; 2:32;
4:26). Yet, questions about whether, by which means and to what extent human beings are
able to discern the divine wisdom and purpose in the revealed law occupied Muslim scholars
of law and theology for centuries. The following exposition focuses on the role and histor-
ical development of the purposes of the law in Sunni legal discourse in the pre-modern and
modern period.
Since the earliest time of Islam, the limited legal material revealed in the Qurʾan and
available from the practice of the Prophet Muhammad (hadith, Sunnah) made Muslims look
for principles to apply in the adjudication of matters not explicitly addressed in the scriptural
sources of the law. Hence, articulations of the purposes of the law are closely tied to jurists’
efforts to resolve unprecedented cases within the parameters of the revealed law and apply
scriptural rulings to changed circumstances. The notion that the divine law has been sent
down for the good (s․alāh ․) of humankind found legal expression already in the early decades
of Islam. The fourth caliph, ʿUmar (r. 13–23/634–644), for example, suspended the ․hadd
punishment for theft during times of famine and decided to keep the irrigated sawād lands of
Iraq under state control for the good of the community. Yet, in scholarly legal literature, ar-
ticulations of general principles guiding the law-finding process appear rather late. First forays
into formulating precepts that summarize the legal rationale behind a category of rulings,
without yet providing large-scale systematization, are evident from the fourth/tenth century.1
A second impetus to the legal discourse on the purposes of the law came from theology.
Debates over God’s omnipotence, whether God only does what is of benefit (mas․lah․a) for
His creation, and the moral assessment of acts influenced jurisprudents’ interpretation of
the maqās․id al-Shariʿah. Questions of the intellect’s ability to determine something as good
(h․asan) or bad (qabı̄h
․) spurred interest in formulating what God intended by revealing His
law to humankind. While members of the Muʿtazili school of theology, such as Abu Bakr
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Felicitas Opwis
al-Jassas (d. 370/980) and Abu al-Husayn al-Basri (d. 434/1044), favoured the position that
God does what is in the best interest (mas․lah․a) of His creation and that humans are capable
of determining ‘good’ and ‘bad’ independently from the revealed law, their counterparts
from among Ashʿari as well as traditionalist scholars insisted that God is not obliged to con-
sider people’s well-being and that all value judgements derive from God’s words alone.2 The
latter stance, which leaves no room for law unaided by divinely revealed guidance, fostered
scholars’ search for the maqās․id al-Shariʿah within the authoritative texts. This discourse was
articulated primarily in works dedicated to the foundations of law finding, usūl al-fiqh, in
which jurisprudents systematize the revealed law and formulate principles to apply in the
law-finding process.
1 Defining the purposes of the law and their role

in law finding in the pre-modern period
Since at least the fifth/11th century, works on legal theory closely associate the purpose of the
law with attaining people’s well-being (mas․lah․a), though there is little evidence that mas․lah․a
and its procedural equivalent istis․lāh ․ were understood at the time as technical terms repre-
senting an identifiable and stable legal procedure. The breakthrough in defining the purpose
of the law in tangible terms and linking it to a particular form of law finding comes with the
Ashʿari Shafiʿi scholar Abu Hamid al-Ghazali (d. 555/1111). He posited that mas․lah․a is the
purpose of the divine law (maqs․ūd al-sharʿ), namely to protect for humankind their religion
(dı̄n), life (nafs), intellect (ʿaql), offspring (nasl) and property (māl); whatever attains and pre-
serves these elements on the level of necessity (d․arūra), need (h․āja) and improvement (tah․sı̄n)
constitutes mas․lah․a and is intended by the Lawgiver, and whatever harms them is a mafsada,
a cause of corruption that needs to be averted.3 Al-Ghazali justified the validity of preserv-
ing these five elements of human existence on account of scriptural prohibitions and harsh
punishments related to apostasy, homicide and retaliation (qis․ās․), drinking wine, fornication
(zinā) and theft.
In al-Ghazali’s legal theory, recourse to the purposes of the law serves as a means for re-
solving cases that are not expressly decided in the scriptural sources of the law and fall outside
the deductive procedure of legal analogy (qiyās). Being in consonance with God’s intention
in revealing His law to humankind, a ruling that brings about mas․lah․a for the five protected
elements partakes in the divine purpose and, hence, enjoys religious legitimacy. Contrary to
cases arrived in analogy to scriptural injunctions, the resulting ruling derives its validity not
from a particular proof-text of the authoritative sources of the law but rather is inductively
derived on account of innumerable pieces of evidence that as a whole support the jurist’s
finding. Al-Ghazali integrated mas․lah․a into law finding by employing it like a ratio legis (ʿilla)
in analogy: a textually unattested mas․lah․a (mas․lah․a mursala) serves as ratio legis to determine a
‘new’ ruling. Yet, he restricted the use of such unattested mas․lah ․as, bestowing legal validity
only on those that affect one of the five above-mentioned elements at the level of necessity
(d․arūra), universality (kulliyya) and certainty (qat․ʿ). For example, al-Ghazali argued that in
case an infidel enemy army shields itself with Muslim prisoners of war, it is legally permissible
to violate the Qurʾanic prohibition of killing fellow Muslims (Q. 4:93; 6:151) and shoot at the
Muslim human shield when it is certain that thereby the lives of all Muslims are saved from
perdition. In contrast, al-Ghazali rejected as valid rationes legis unattested mas․lah ․as that fall
short of necessity, certainty and universality and required that they be supported by textually
authoritative evidence. He adamantly denied that mas․lah ․a constituted an independent source
of law (as․l).4
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Maqās.id al-Shariʿah
1.1 Employing the purposes of the law in analogy

After al-Ghazali defined mas․lah․a as a valid measure of the purpose of God’s law, it soon
became entrenched in legal discourse, irrespective of whether a scholar accepted the use of
mas․lah
․a in law finding or not. Henceforward, the maqās․id al-Shariʿah were intimately tied
to the concept of mas․lah․a, oftentimes one seen as an expression of the other. Credit goes to
Fakhr al-Din al-Razi (d. 606/1210) for providing the logical underpinnings of using mas․lah ․a
as ratio legis to determine new rulings. He postulated that it is known with high probability
(ghalabat al-z ․ann) that God revealed His law for the mas․lah․a of His creation. The underlying
reason or wisdom (h․ikma) of the law is to bring about mas․lah․a and avert mafsada. Further-
more, al-Razi maintained that all instances of real mas․lah․as, i.e. those that are intended by the
Lawgiver, have been revealed and, thus, are knowable even if only with probable knowledge.
Moreover, al-Razi deemed the human intellect capable of determining that a ratio legis is cor-
rectly identified by looking whether it is suitable (munāsib) for the ruling. A ruling that brings
about mas․lah ․a in that it attains benefit (manfaʿa) and averts harm (mad․arra) from the believer
is suitable and, according to al-Razi, is an expression of the underlying reason or wisdom
(h․ikma) of divine legislation. Identifying a ruling’s ratio legis on account of the underlying
reason is valid even without specific textual evidence, as al-Razi emphasized, because all real
mas․lah
․as have been considered at least in their general form ( jins) in the revealed law.5 This
intellectual move enabled al-Razi, and jurists after him, to legitimately employ unattested
mas․lah
․as as rationes legis in the procedure of analogy arguing that even though they do not
find specific mention in the texts, they are expressed in their general form, or else they would
not qualify as mas․lah․a.
1.2 Employing the purposes of the law in legal precepts (qawāʿid)

While al-Razi envisioned notions of mas․lah․a to be applied only within the realm of legal
analogy, other jurisprudents used a different approach to incorporate the purposes of the
law and mas․lah․a into law finding, namely through the area of legal precepts (qawāʿid). Legal
precepts or maxims are snappy statements that are abstracted from the corpus of legal rulings
summarizing the legal principles that guide the decision-making process. They facilitate
teaching, memorizing and practicing law. Jurists formulated such precepts since at least the
third/ninth century, though, with the maturing of Islamic law and its institutions, works
dedicated to precepts greatly proliferate starting in the sixth/12th century.6
In addition to composing multi-volume works expounding which legal principles govern
which type of legal cases, such as al-Subki’s (d. 771/1369) or Ibn Nujaym’s (d. 970/1563)
respectively entitled Kitab al-Ashbah wa-l-Nazaʾir (Book of Resemblances and Similitudes),
the inductive reasoning process also turned jurists’ attention to the most important maxims
in law finding, and thus to the objectives of the divine law. Definitions of precepts frequently
reflect the intentions of the Lawgiver to avert hardship (mashaqqa) and harm (d․arar), and to
promote benefit (nafʿ). It is said that the Shafiʿi jurist al-ʿIzz b. ʿAbd al-Salam (d. 660/1263)
reduced the whole of the divine law to a single precept – attaining mas․lah․as and averting
mafsadas.7
The Maliki jurist al-Qarafi (d. 684/1285) drew upon this maxim as arbiter in case
of conflicting legal indicants. He interpreted concepts like granting license (rukhs․a) and
blocking means to illegal ends (sadd al-dharāʾiʿ) in light of the purposes of the law. License
to transgress a divine ruling, according to al-Qarafi, is granted when following it would
lead to more harm than mas․lah․a. For example, should a person be faced with the dilemma
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Felicitas Opwis
of either starving or eating carrion, the mas․lah ․a of adhering to the divine prohibition of
eating carrion (mayta) is outweighed by the mas․lah․a of saving one’s life. Arguing that the
purpose of the law is to attain mas․lah․a, al-Qarafi also expanded the interpretation of the
concept of sadd al-dharāʾiʿ. In addition to justifying the prohibition of legal means for
illegal ends, he applied it also to allow the use of illegal means when they result in at-
taining a prevalent mas․lah․a. For instance, al-Qarafi permitted paying ransom for Muslim
prisoners of war, despite the common rule that benefiting the enemy is prohibited, due
to the greater mas․lah․a entailed in freeing the Muslim captives. 8 Within the framework
of legal precepts, mas․lah․a and the purposes of the law are considered primarily when
conflicting rulings and/or competing principles of law finding apply to one case. Then,
attaining the Lawgiver’s objective receives priority over opposing, though legally legiti-
mate, considerations.
Despite entering the realm of legal precepts, a common feature of pre-modern interpre-
tations of the maqās․id al-Shariʿah is jurists’ focus on individual legal cases. The Lawgiver’s
intentions are primarily discussed with reference to particular cases as opposed to applying
them consistently to all areas of law or expounding a particular section of law in light of the
divine intent to attain the believers’ mas․lah ․a. Exceptions are articulations on the maqās․id al-
Shariʿah by Najm al-Din al-Tufi (d. 716/1316) and Abu Musa al-Shatibi (d. 790/1388). These
two jurists formulated comprehensive theories of the purposes of the law and their role in law
finding. However, neither of their interpretations left any influence to speak of on subsequent
generations of Muslim jurisprudents until their work was ‘discovered’ at the end of the 19th
century. The Hanbali jurist al-Tufi suggested to take attaining mas․lah․a and averting mafsada
as an overriding consideration in all legal decisions unless a ruling was explicitly stated in the
authoritative texts or concerned matters of worship (ʿibādāt). Hence, al-Tufi argued that in
cases in which jurists disagree on the precise interpretation of the textual evidence (i.e. the
majority of cases), the purpose of the law to achieve mas․lah․a, which al-Tufi deemed rationally
discernible, receives priority. In al-Tufi’s legal theory, reliance on the purposes of the law
serves not only to accomplish legal change but also to overcome divisions among schools of
law as well as inner-madhhab disagreement.9
The most comprehensive articulation of how mas․lah․a and the maqās․id al-Shariʿah guide
the law-finding process comes from the Andalusian Maliki scholar al-Shatibi. Al-Shatibi
proposed a hierarchy of legal evidence based on their epistemic value – the more general
and universal statements are known with a higher degree of probability (or with certainty)
than statements that are specific and particular. Emphasizing the early part of the Qurʾan,
al-Shatibi argues that the Meccan suras contain the general message of Islam in which the
universal sources of the law are laid down, with the Medinan suras as well as the Sunnah
constituting the particulars of the law that elucidate, specify, qualify or complement the
Meccan revelation. Building on al-Ghazali’s definitions and categories, he understood at-
taining mas․lah․a and averting mafsada at the level of necessities, needs and matters of improve-
ments as the universal sources of the law, and therefore certain and immutable. In contrast,
the specific rulings of the Qurʾan and the prophetic practice constitute particulars that are
probable in their epistemic value and thus amenable to change according to circumstances.
When, in the law-finding process, a particular ruling stands in opposition to the universal
source to attain mas․lah․a, the universal receives priority. However, al-Shatibi exempted from
the dominance of the purposes of the law those scriptural rulings that constitute a concession
(rukhs․a) or a specification (takhs․ı̄s․), that pertain to acts of worship (ʿibādāt), to acts that oc-
curred or potentially happened during the lifetime of the Prophet as well as the continuous
practice of the early Muslim community.10 Al-Shatibi’s interpretation of the purposes of the
198
law greatly enhances their importance in the law-finding process, yet at the same time it
questions long-established epistemological hierarchies, upsetting the commonly held priority
of specific textual evidence over general principles.
As mentioned, neither al-Tufi’s nor al-Shatibi’s interpretations of the purposes of the
law and their holistic integration into all aspects of law finding receive attention by other
jurisprudents until the early 20th century. Up to the modern period, maqās․id al-Shariʿah
were predominantly understood and employed in analogy via mas․lah․a mursala as ratio legis,
in legal precepts or when weighing (tarjı̄h․) the validity of conflicting rulings in accordance
with the divine legal intent. Although one finds modifications and refinements to the
definitions and categories formulated by al-Ghazali, jurisprudents generally accepted that
mas․lah․a and the maqās․id al-Shariʿah are not independent sources of law, and that mas․lah․a is
defined as preserving the five essential elements of religion, life, intellect, offspring and
property on the level of necessity (d․arūra), need (h ․āja) and improvement (tah․sı̄n) – even if
jurists differ on the rank order of these elements and some substitute offspring with hon-
our (ʿird․).
The purposes of the law to attain mas․lah․a and avert mafsada were, and still remain,
important tools for jurists to expand the legal edifice and accommodate legal change in
Islam. They were often used to arrive at unprecedented rulings and at the same time to
justify them – an analytical conflation of means and ends that Muslim jurisprudents rarely
acknowledge. The extent to which legal change can be achieved depends primarily on how
the purposes of the law are defined as well as how they are employed in the law-finding
procedures. Defining the maqās․id al-Shariʿah as preserving the five necessities and applying
mas․lah․a as ratio legis for legal cases not directly addressed in the textual sources enables jurists
to incorporate such cases into the fold of the divine law. At the same time, it prevents the
established legal edifice and its hermeneutics from being overturned and the substance of
the law altered in any major way. Integrating the purposes of the law into legal precepts to
order large sections of law or to justify the application of legal principles puts the focus on
the outcome achieved by implementing God’s revealed law. It allows for greater flexibility
in addressing changing environments than employing mas․lah․a in analogical reasoning, yet
opens the door for overriding legal rulings derived from the textual sources of the law in
the name of the divine purpose of the same and thereby highlights tensions between the
letter and the spirit of the law.
2 Interpreting the purposes of the law in the modern period

The onset of modernity initiated far-reaching changes in all sectors of society and trans-
formed significantly the way Islamic law was produced and applied in society. Increasing re-
liance on codified law and legal statutes, accompanied by the rise of the nation-state with its
exclusive claim on the sphere of law, as well as the expansion of the educational sector beyond
the ʿulamāʾ and the traditionally taught sciences, gave rise to calls for re-thinking Islamic law.
An important aspect of reformist legal thought focused on opening ‘the gate of ijtihād’, inde-
pendent reasoning when scriptural sources are silent or ambiguous, in order to enhance the
flexibility of Islamic law to address the changed environment and retain its relevance under
the onslaught of Western-inspired law. Ijtihād is also that area of law in which the application
of mas․lah․a and the maqās․id al-Shariʿah are discussed. Reform-oriented scholars of the early
20th century, such as Jamal al-Din al-Qasimi (1866–1914) and Muhammad Rashid Rida
(1865–1935), publicized the legal theories of al-Tufi and al-Shatibi in the periodical al-Manar.
Their objective was to confirm the compatibility of Islam with reason, return to the spirit of
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Islam, and enhance the responsiveness of Islamic law to contemporary conditions. Fighting
against secular legislation, Rashid Rida advocated to make mas․lah․a the basis of legislation,
which he hoped would establish truth and justice in society.11
While early reformers like al-Qasimi and Rashid Rida championed al-Tufi’s interpreta-
tion of the maqās․id al-Shariʿa, which simplified procedures of law finding without overturn-
ing the hermeneutics of legal interpretation, other jurisprudents harshly criticized al-Tufi’s
articulation as utilitarianism akin to the theories of Bentham and Mills and accused it of
changing divine rulings arbitrarily for seemingly rational benefit.12 The increasing margin-
alization of Shariʿah in the legal systems of the newly emerging nation-states in the first half
of the 20th century led jurisprudents to pursue other avenues to strengthen Islamic law in
society. Many reform-oriented jurists sought to preserve the traditional legal edifice while
also enhancing the adaptability of Islamic law.
Turning away from the ‘traditional’ way of law finding, dominated by analogical reason-
ing and recourse to legal precepts, jurists’ search for suitable methods to address the current
legal needs focuses on the maqās․id al-Shariʿah and mas․lah․a as guiding standards in representing
an Islamic alternative to Western-inspired or imported laws. While the first decades of the
20th century still saw only modest discussions about the intentions of the law, with Rashid
Rida’s efforts in al-Manar and his own work Yusr al-Islam spearheading the discourse, after
the 1940s numerous works on the subject matter appeared.13 Among the most influential
articulations remain those of Muhammad al-T ․ ahir ibn ʿAshur’s (1879–1973), who specifically
applied the objectives of the law to the modern period. Also important for the dissemination
of interpretations of mas․lah․a were ʿAbd al-Wahhab Khallaf (d. 1956), Muhammad Saʿid Ra-
madan al-Buti (d. 2013) and ʿAllal al-Fasi (1910–1974).14
More recently, a new wave of publications built upon these authors’ works, commented
on their thought and advanced the discussion. Notably, Arabic no longer represents the pre-
dominant language of the discourse on the maqās․id al-Shariʿa, and significant contributions
come from scholars who received educational credentials outside the traditional curriculum
of the ʿulamāʾ – reflecting the globalization and democratization of access to knowledge.
Among prominent participants in the maqās․id al-Shariʿah discourse one finds a wide variety
of scholars, ranging from Yusuf al-Qaradawi, Ismaʿil al-Hasani, Ahmad al-Khamlishi, Jasser
Auda, Jamal al-Din ʿAtiyya to Adis Duderija, to name but a few.15
Although most scholars today base their interpretation on concepts and definitions of
pre-modern jurists, in particular al-Ghazali and al-Shatibi, they depart from them by adapt-
ing mas․lah․a and the maqās․id al-Shariʿah to their own environment. Despite the wide range
of interpretations, a common factor is their focus on the maqās․id instead of mas․lah․a. In the
pre-modern period most jurisprudents focused on mas․lah ․a as a tool to derive legal rulings
and as a criterion to judge their correctness. The larger framework of the purposes of the law
was discussed mainly to justify the integration of mas․lah․a in law-finding procedures. Juris-
prudents of the 20th and 21st centuries often take the opposite approach by first expounding
on the objectives of the divine law and then discussing how to implement these objectives
through procedures that attain mas․lah․a and avert mafsada. The close association between
mas․lah․a and the purposes of the law has brought about the term often used in secondary
scholarship, maqās․id-cum-mas․lah․a or maqās․idı̄ approach.16 Khallaf ’s (in-)famous statement that
‘wherever one finds mas․lah․a, there lies God’s legislation’17 reflects the attitude that identifying
that a ruling entails mas․lah․a (however defined) makes it an expression of the divine law. Since
it is impossible to do justice to the vast contemporary literature on the maqās․id al-Shariʿa,
the following sections present broad tendencies in the debate, exemplifying trends and ap-
proaches in reference to a few representative scholars.
200
2.1 Expanding the definition of the maqās. id al-Shariʿah

Since the second half of the 20th century, expositions on the purposes of the law exhibit a
vocal critique of al-Ghazali’s definition and categories of the maqās․id al-Shariʿah and mas․lah․a.
Although al-Ghazali had faced criticism for his position that the purpose of the law is to
preserve the five necessities, it was primarily directed at the number or selection of the
necessities – frequently citing honour (ʿird․) instead of or in addition to progeny (nasl).
In contrast, many contemporary authors criticize al-Ghazali’s definition of the purposes
of the law as too narrow and too focused on the individual believer to capture the divine legal
intent. This sentiment is epitomized by the Moroccan jurist Ahmad al-Khamlishi who states
that ‘it is insufficient today to confine oneself and take as reference point for ordering society
and relations among individuals the maqās․id, or five higher mas․lah․as (al-mas․ālih․ al-ʿulyā), that
al-Ghazali set forth’.18 Scholars, such as Ibn ʿAshur, al-Qaradawi and Jamal al-Din ʿAtiyya
argue that defining the purposes of the law as protecting the five necessities accentuates the
maşlah
․as of the individual and prevents from looking at society, the ummah, the state and
human relations more broadly.19
Revisiting the definitions and number of necessities, today’s scholars broaden the inter-
pretation of the five necessities and expand the elements that the law intends to protect. For
example, Ibn ʿAshur argues that the purpose of preserving the intellect (h ․ifz
․ al-ʿaql) goes be-
yond prohibiting the consumption of alcohol and includes more generally preventing harm
to the mind, such as from opium, hashish and heroin. Others, like al-Buti and ʿAtiyya, in-
clude under the protection of the intellect also state censorship of the media.20 Yet, reference
to safeguarding the necessities are also used for establishing positive rights. Al-Qaradawi,
for example, states that the textual sources provide many more positive instances that en-
courage the protection of the intellect than only the negative prohibition against drinking
wine; as evidence he refers to the frequent encouragements in the Qurʾan and Hadith to seek
knowledge (t․alab al-ʿilm).21 This interpretation is taken one step further by ʿAtiyya to argue
for mandatory education and development of a scientific mindset.22 Al-Khamlishi maintains
that the Qurʾanic punishment for theft (Q. 5:38) does not merely aim at protecting a per-
son’s property but at preserving public safety, people’s security and peace of mind.23 He also
advances another line of criticism of al-Ghazali’s interpretation of the purposes of the law
by objecting to counting the protection of property (māl) among the purposes of the law,
contending instead that the Qurʾanic verses that deal with property nowhere command the
preservation of property (al-muh․āfaz ․a ʿalā al-māl). To the contrary, al-Khamlishi says that
people’s desire to accumulate and preserve property destroys today’s society and deprives it of
the value of moderation (qanāʿa), solidarity (takāfūl) and mercy (rah․ma).24
Rejecting a narrow definition of the purposes of the law, scholars focus on values that ex-
press an individual’s relationship to society. Ibn ʿAshur argues that by defining the maqās․id in
terms of the individual, one excludes important divine objectives, such as equality (musāwā)
and freedom (h ․urriyya), which belong as much to the fundamental purposes (maqās․id as․liyya)
of the Shariʿah as do the preservation of the five necessities. That the definition of maqās․id al-
Shariʿah needs to be expanded is echoed by al-Qaradawi. He maintains that just as relevant, or
even more so, among the purposes of the divine law are the preservation of freedom (h․urriyya),
․uqūq al-insān).25
equality (musāwā), fraternity (ikhāʾ), solidarity (takāful) and human rights (h
Since the second half of the 20th century, Muslim scholars increasingly turn away from
mas․lah․a as a procedural tool for resolving cases. They interpret the essential necessities in light
of today’s relationships between the individual and society, and interpret the implementation
of the maqās․id al-Shariʿah within the context and experience of the modern nation-state.
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Felicitas Opwis
Thus, one finds the divine purposes of the law translated into entitlements and rights of the
individual citizen. For instance, Ismaʿil al-Hasani proposes that contemporary society is in
great need of including among the essential necessities (d․arūriyyāt) also the right to freedom
of expression, to political association, and to elect and remove rulers as well as the right
to employment, food, housing, clothing and medical treatment.26 In a similar fashion, al-
Khamlishi counts among the higher purposes (al-maqās․id al-ʿulyā) of the law individual free-
dom as well as social, economic and political rights. These rights find expression for example
in the ability to participate in running public affairs (al-musāhama fı̄ tasyı̄r shuʾūn al-umma),
which al-Khamlishi justifies by reference to Qurʾan 42:38 ‘who (conduct) their affairs by
mutual consultation’.27 For al-Khamlishi, the expanded definition of the purposes of the law
is part of his project to re-define the role of independent reasoning (ijtihād) for Islamic law
and to overcome what he sees as legal stagnation ( jumūd).28
2.2 System-approach to the maqās. id al-Shariʿah

Among more recent publications on mas․lah․a and the purposes of the law one finds works that
may be called ‘system-approach’. Their authors try to provide a holistic approach to ordering
human life on the basis of mas․lah․a to realize God’s purposes in revealing His law.29 The work
of Jamal al-Din ʿAtiyya exemplifies this trend. In his book Towards Realization of the Higher In-
tents of Islamic Law, ʿAtiyya comprehensively presents the debate over the objectives of the law
and the number and elements of the essential necessities. He enumerates 24 essential purposes
of the law, which he classifies into four interrelated realms pertaining to the individual, the
family, the ummah and humanity in general.30 For each intention, he provides a definition,
how it can be achieved and what is connected to it. For example, the first purpose of the
divine law in the realm of the individual is, according to ʿAtiyya, the preservation of human
life, which means to protect life from harm, damage to the body and death. It is achieved, he
states, by providing security in the form of prohibitions of murder, assault and suicide as well
as enforcing the laws of retaliation. In addition to the ‘traditional’ interpretation, ʿAtiyya in-
cludes under preserving life also the basic human needs of food, clothing and shelter as well as
protection against mortal dangers, such as fire, drowning, car accidents and radiation. Beyond
protecting the physical well-being of the body, ʿAtiyya extends the preservation of life also to
psychological and spiritual needs. He points out that protecting personal freedom and dignity
is not simply complementary to this objective of the Lawgiver but, because without them life
cannot be preserved, they belong to the level of needs and improvements respectively.31
In the realm of the family, ʿAtiyya understands the essential purpose as ordering the
relations between the sexes through marriage, polygamy and divorce; preserving the spe-
cies through regulating procreation; establishing harmony, affection and compassion among
couples; and ordering the family institutionally and financially. These latter two objectives
ʿAtiyya interprets in terms of the financial rights and obligations laid out in Islamic personal
status and inheritance law.32 At the level of the ummah, ʿAtiyya views the purposes of the
law to reflect its distinction from non-Muslim communities. Hence, the law’s objectives
address conceptions of the caliphate (khilāfa), leadership (imāma), consultation (shūrā), jihād,
establishing justice through the judiciary and solidarity.33 When discussing the fourth realm
of the purposes of the law, ʿAtiyya posits that the universal legal rulings of the divine law are
intended to be embraced by all people based on reason and logic. These universal principles
include mutual understanding and cooperation; realizing the vice-regency of humans on
earth by, for instance, environmental protection, fighting crime, and agricultural, industrial
and service-related development; achieving world peace based on justice; protecting human
202
rights; and disseminating the Islamic message. Implementing such universal principles is the
goal of Muslim foreign policy and international relations.34
As evident, jurisprudents of the modern period interpret the purposes of the law differ-
ently than their predecessors. They move away from reducing God’s intentions by revealing
His law to preserving the five necessities of human existence, as defined by al-Ghazali and
commonly accepted among jurists for centuries. The discourse moves away from under-
standing mas․lah ․a and the maqās․id al-Shariʿah in terms of the individual within the context of
empire towards today’s relationships between the individual and global society within the
context of nation-states. Instead of focusing on mas․lah․a as a procedural tool for resolving
cases unaddressed in the textual sources of Islamic law, scholars expand the scope of the ma-
qās․id al-Shariʿah. Hence, they interpret the purposes of the law in light of collective values,
including among them justice, equality, freedom, human rights, political participation and
equal opportunities, which often are deemed inalienable, God-given rights. These universal
objectives of the law are not tied to individual statements in the authoritative texts but derive
their validity from an inductive reading of the whole of the revealed message.
3 Concluding reflections
Mas․lah․a and the maqās․id al-Shariʿah have always been an important avenue to affect legal
change in Islamic law. They often serve to arrive at unprecedented rulings and at the same
time to justify them – an analytical conflation of means and ends that is rarely acknowledged
by Muslim jurisprudents. The extent to which legal change is achieved depends primarily
on how the purposes of the law and mas․lah ․a are defined as well as on how they are applied
in law-finding procedures. Defining the purposes of the law narrowly as preserving the five
necessities and applying mas․lah․a as ratio legis for legal cases not directly addressed in the textual
sources enables jurists to incorporate such new cases into the fold of the divine law. At the
same time, it prevents the overturn of the established legal edifice and its hermeneutics, sav-
ing the substance of the law from being altered in any major way. Integrating the purposes of
the law into legal precepts to order large sections of law or justifying the application of legal
principles puts the focus of law finding on the outcome intended by God’s revealed law. Novel
situations are evaluated as to how much they conform with the purposes of the law, and thus
enhance legal flexibility and adaptability of the law to the ever-changing environment.
The shifts in interpreting the maqās․id al-Shariʿah in the modern period, namely towards
abstraction, focus on society and a system-like approach, open up possibilities for Islamic law
but also pose challenges. Understanding mas․lah․a and the maqās․id al-Shariʿah in abstract and
community-oriented terms facilitates a legal system that is adaptable according to place and
time. Universal divine purposes are realized according to context, and, hence, permit a variety
of particular rulings and policies. This provides jurists with flexible solutions to unprecedented
situations that are in line with the objectives of the divine law. It, thus, allows Islamic law to be
applicable in different contexts, and makes change an integral part of the legal system.
The move towards more abstract communal purposes, however, makes it all the more dif-
ficult to define them precisely. Proclaiming that the divine purposes are universal is poten-
tially empty without providing tangible substance and meaning.35 The unresolved tension
between universalism and subjective interpretation of what these universals mean, including
an agreed upon definition of what constitutes mas․lah ․a in concrete terms and its relationship
to the textually explicit rulings in Qurʾan and Sunnah engenders controversy as well as
abuse in the name of the divine intent. Different scholars interpret the maqās․id al-Shariʿah
very differently. For example, Adis Duderija and Jamal al-Din ʿAtiyya both identify as divine
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Felicitas Opwis
․ma) and ‘repose’ (sakı̄na). Yet

objectives for the family ‘affection’ (mawadda), ‘compassion’ (rah
Duderija interprets these purposes as evidence for a gender-egalitarian Islamic family law,
whereas ʿAtiyya employs them to assert traditional gender hierarchies.36 Such differences in
interpretation provide opportunities for innovative application of Islamic law yet may just as
well lead to authoritarian exploitation in the name of God’s intentions by state institutions
or vigilante.
3.1 The maqās.id al-Shariʿah as public policy

Another observation about the intense focus on the purposes of the law is that it approaches
an ‘ideology’. The maqās․id al-Shariʿah are no longer debated in connection with the sources
of the law or methods of law finding, but are used as an ideology for policy and action. The
onus to put the purposes of the law into practice is put on the state, by establishing policies,
laws and institutions that protect the necessities and realize God’s objectives for humankind.
This shift reflects the changed role of law in the modern nation-state and the state’s ex-
clusive claim on the sphere of law. It is no longer the individual jurist who has to decide
whether a particular ruling or course of action agrees with the purposes of the Lawgiver, but
it is the state and its functionaries that are responsible for realizing them, whether it is policies
to prevent the outbreak of epidemics or providing mandatory education. In this respect, the
maqās․id al-Shariʿah are akin to what Ibn Taymiyya (d. 728/1328) called siyāsa sharʿiyya, gov-
ernance in accordance with the divine law.
Yet, employing the maqās․id-cum-mas․lah․a approach as a type of siyāsa sharʿiyya remains at
present rather vague. Largely absent from contemporary discussions are questions as to who
exactly in a state legal system has the ability and the right to determine the purposes of the
Shariʿah – trained ʿulamāʾ or secularized state legislators? So far unsatisfactorily addressed are
the difficult questions of modern states, such as citizens with diverse religious a ffiliations –
without creating an unequal dhimmı̄ status for non-Muslims and crying apostasy at Muslims
who exercise religious freedom.37 No consensus has been reached on how to apply the di-
vine purpose of legal equality to gender. Likewise, how to implement the particulars of the
Qurʾanic text in those cases where Muslims’ attitudes are changing, such as towards execut-
ing the ․hudūd punishments, still has to be resolved.
Just as important, questions of the limits of the reach of the nation-state and its legal in-
stitutions into the behaviour of its citizens (from legislation to enforcement), that is the line
between ‘legal’ and ‘moral’ or between ‘criminal offence’ and ‘moral infraction’, has rarely
been explored in any serious manner. Zaman pointedly remarks about Yusuf al-Qaradawi’s
proposal to consider mas․lah․a and the purposes of the law in all areas of modern society that
thereby ‘the distinction between sin and crime, and between moral and legal infractions,
collapses’.38
Nevertheless, the attention that scholars devote to the objectives of Islamic law and the
innovative interpretations they articulate offer new avenues of accomplishing legal change
and giving Shariʿah a role and place in the modern world.39
Notes
1 Cf. Necmettin Kızılkaya, ‘An Outline of the Historical Evolution of Qawāʿid Literature in Islamic
Law’, American Journal of Islamic Social Sciences 28 (2011): 76–105 (see pages 83, 88 and 91).
2 Presenting the intricate positions of Muʿtazili and Ashʿari scholars towards human ability to iden-
tify the maqās․id al-Shariʿah is beyond the scope of this chapter. Main trends and ideas are presented
204
in George F. Hourani, Islamic Rationalism: The Ethics of ʿAbd al-Jabbār (Oxford: Clarendon Press,
1971); Majid Fakhry, ‘Justice in Islamic Philosophical Ethics: Miskawayh’s Mediating Contribu-
tion’, Journal of Religious Ethics 3 (1975): 243–54; Felicitas Opwis, Mas․lah․a and the Purpose of the Law:
Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century (Leiden: Brill, 2010), 27–32.
3 Abu Hamid Muhammad al-Ghazali, al-Mustasfa min ʿIlm al-Usul, ed. Hamza b. Zuhayr Hafiz, 4
vols ( Jedda, Saudi Arabia: Sharikat al-Madinah al-Munawwara li-l-Tibaʿ wa-l-Nashr, 1993), 2:
481–2.
4 Al-Ghazali, al-Mustasfa, 2: 482, 487–95 and 502–3; Opwis, Mas․lah․a and the Purpose of the Law,
65–88.
5 Fakhr al-Din Muhammad b. ʿUmar b. al-Hasan al-Razi, Al-Mahsul fi ʿIlm Usul al-Fiqh, 2 vols (Bei-
rut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 2: 319–32, 389–92, 480–2 and 578–81; Opwis, Mas․lah․a
and the Purpose of the Law, 96–131.
6 For an overview of legal precepts, their development and application in Islamic law see Kızılkaya,
‘An Outline’; Wolf hart Heinrichs, ‘Qawāʿid as a Genre of Legal Literature’, in Studies in Islamic Legal
Theory, ed. Bernard G. Weiss (Leiden: Brill, 2002), 365–84; Mohammad Hashim Kamali, ‘Legal
Maxims and Other Genres of Literature in Islamic Jurisprudence’, Arab Law Quarterly 20 (2006):
77–101; Mohammed Khalil, ‘The Islamic Law Maxims’, Islamic Studies 44 (2005): 191–207; and
Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal
Law (New York: Cambridge University Press, 2014).
7 Heinrichs, ‘Qawāʿid as a Genre of Legal Literature’, 375.
8 Ahmad b. Idris al-Qarafi, Sharh Tanqih al-Usul fi Ikhtisar al-Mahsul fi al-Usul (Cairo: Matbaʿat Kulli-
yyat al-Sharifa, 1381/1961), 85–7, 415–16 and 448–50.
9 Al-Tufi presented his interpretation of mas․lah․a in a work on hadith. The relevant text has been
edited by Mustafa Zayd, al-Maslaha fi al-Tashriʿ al-Islami (Cairo: Dar al-Fikr al-ʿArabi, 1384/1964),
206–40, see in particular 232–40; cf. also Opwis, Mas․lah․a and the Purpose of the Law, 200–46.
10 Ibrahim b. Musa al-Shatibi, al-Muwafaqat fi Usul al-Shariʿa, ed. ʿAbdullah Diraz, 4 vols (Cairo: Dar
al-Fikr al-ʿArabi, n.d.). For short accounts of al-Shatibi’s theory see Wael B. Hallaq, A History of
Islamic Legal Theories: An Introduction to Sunnı̄ Us․ūl al-Fiqh (Cambridge: Cambridge University Press,
1997), 162–206; Opwis, Mas․lah․a and the Purpose of the Law, 247–333.
11 Muhammad Rashid Rida, Yusr al-Islam wa-Usul al-Tashriʿ al-ʿAmm (Cairo: Maktabat al-Salam
al-ʿAlamiyya, 1984), 153.
12 Cf. Badran Abu al-ʿAynayn Badran, Usul al-Fiqh al-Islami (Alexandria: Muʾassasat Shabab al-Jamiʿa,
1984), 213.
13 For an overview of the thought of several jurists of the 20th century, i.e. the early ‘wave’ of writing
on mas․lah․a, see Felicitas Opwis, ‘Mas․lah․a in Contemporary Islamic Legal Theory’, Islamic Law and
Society 12 (2005): 183–223.
14 Muhammad al-Tahir Ibn ʿAshur, Maqasid al-Shariʿah al-Islamiyya (Tunis: al-Sharika al-Tunisiyya li-
l-Tawziʿ, 1978), trans. (into English) as Ibn Ashur: Treatise on Maqasid al-Shariʿah, trans. (from Arabic)
and annot. Mohamed el-Tahir el-Mesawi (London: The International Institute of Islamic Thought,
1427/2006) – references are to the Arabic edition; ʿAbd al-Wahhab Khallaf, Masadir al-Tashriʿ al-Islami
fi-ma la Nassa fih, 6th edn (Kuwait: Dar al-Qalam li-l-Nashr wa-l-Tawziʿ, 1414/1993); Saʿid Ramadan
al-Buti, Dawabit al-Maslaha fi al-Shariʿah al-Islamiyya, 4th edn (Beirut: Muʾassasat al-Risala, 1402/1982);
ʿAllal al-Fasi, Maqasid al-Shariʿah al-Islamiyya wa-Makarimuha (Rabat: Matbaʿat al-Risala, 1979).
15 See Yusuf al-Qaradawi, Dirasa fi Fiqh Maqasid al-Shariʿah: Bayna al-Maqasid al-Kulliyyah wa-l-Nusus
al-Juzʾiyya (Cairo: Dar al-Shuruq, 1427/2006); Ismaʿil al-Hasani, Nazariyyat al-Maqasid ʿinda al-
Imam Muhammad al-Tahir ibn ʿAshur (Herndon, Virginia: International Institute of Islamic Thought,
1415/1995); Ahmad al-Khamlishi, Wijhat Nazar, 4 vols (Rabat: Dar Nashr al-Maʿrifa, 1998 (vol.
2), 2000 (vol. 3), 2002 (vol. 4)); Jamal al-Din ʿAtiyya, Nahwa Tafʿil Maqasid al-Shariʿah (Damascus:
Dar al-Fikr, 2001), trans. as Gamal Eldin ʿAtiyya, Towards Realization of the Higher Intents of Islamic
Law: Maqās․id al-Shariʿah: A Functional Approach, trans. (from Arabic) Nancy Roberts (London: In-
ternational Institute of Islamic Thought, 1428/2007) – references are to the English translation;
Jasser Auda, Maqasid al-Shari'ah as Philosophy of Islamic Law: A Systems Approach (London: Interna-
tional Institute of Islamic Thought, 1429/2008); Adis Duderija, ‘Maqās․id al-Sharı̄ʿa, Gender Non-
patriarchal Qurʾān-Sunna Hermeneutics, and the Reformation of Muslim Family Law’, in Maqās․id
al-Sharı̄ʿa and Contemporary Reformist Muslim Thought, ed. Adid Duderija (New York: Palgrave Mac-
millan, 2014), 193–218; Adis Duderija, ‘A Case Study of Patriarchy and Slavery: The Hermeneutical
Importance of Qurʾānic Assumptions in the Development of a Values-Based and Purposive Qurʾān-
Sunna Hermeneutic’, in Maqās․id al-Sharı̄ʿa and Contemporary Reformist Muslim Thought, 219–45.
205
Felicitas Opwis
16 Cf. Adis Duderija, ‘Introduction’, in Maqās․id al-Sharı̄ʿa and Contemporary Reformist Muslim Thought,
1–11; David Johnston, ‘A Turn in the Epistemology and Hermeneutics of Twentieth Century Us․ūl
al-Fiqh’, Islamic Law and Society 11 (2004): 233–82.
̣
․ aythuma¯ wajadat al-mas․lah․a fa-thumma sharaʿa Allah’, Khallaf, Masadir al-Tashriʿ al-Islami, 90, 101
17 ‘H
and 160. Khallaf was severely criticized for this statement by al-Buti (Dawabit al-Mas․lah․a, 12).
18 Al-Khamlishi, Wijhat Nazar, 2: 126 and 158; for a detailed critique of the necessities as defined by
al-Ghazali, see 3: 15–18.
19 Such criticism is voiced explicitly as well as implicitly by Ibn ʿAshur (Maqasid al-Shariʿa, 78, 93 and
136), al-Qaradawi (Dirasa, 25–30) and ʿAtiyya (Towards Realization, 85).
20 Ibn ʿAshur, Maqasid al-Shariʿah, 80; al-Buti, Dawabit al-Maslaha, 252–3; ʿAtiyya, Towards Realization,
120.
21 Al-Qaradawi, Dirasa, 29.
22 ʿAtiyya, Towards Realization, 120 and 203.
23 Al-Khamlishi, Wijhat Nazar, 3: 15–16 and 19.
24 Ibid., 3: 16.
25 Ibn ʿAshur, Maqasid al-Shariʿah, 95–9 and 130–5; al-Qaradawi, Dirasa, 28.
26 Al-Hasani, Nazariyyat al-Maqasid, 299.
27 Al-Khamlishi, Wijhat Nazar, 2: 126. The Qurʾan translation is Yusuf Ali.
28 The notion of a solidified or stagnant Islamic law and Islamic thought is expressed several times in
al-Khamlishi’s work, see e.g. Wijhat Nazar, 2: 126 and 152, 3: 10, 54 and 57.
29 The work of ʿAtiyya, Auda, and Bin Sattam are examples of the system approach; yet, they vary
greatly in terms of mastery of the pre-modern discourse as well as the solutions they put forward,
with, for example, Ibn Sattam’s articulations resembling more a self-help book than scholarly con-
tribution (Abdul Aziz Bin Sattam, Sharı̄ʿa and the Concept of Benefit: The Use and Function of Mas․lah․a
in Islamic Jurisprudence (London: I. B. Tauris, 2015).
30 ʿAtiyya, Towards Realization, 116–49.
31 Ibid., 119.
32 Ibid., 124–31.
33 Ibid., 131–41.
34 Ibid., 142–9.
35 Cf. Sherman A. Jackson, ‘Literalism, Empiricism, and Induction: Apprehending and Concretizing
Islamic Law’s Maqās․id al-Sharîʾah [sic] in the Modern World’, Michigan State Law Review (2006):
1469–86, at 1479, 1480–2 and 1485.
36 Adis Duderija, ‘Maqās․id al-Sharı̄ʿa, Gender Non-patriarchal Qurʾān-Sunna Hermeneutics’, 206
and 215; ʿAtiyya, Towards Realization, 124–31. Ibn ʿAshur’s emphasis on the divine objective of
equality also does not extend to gender (cf. Maqās․id al-Sharı̄ʿa, 95–9).
37 Discussing the Tunisian thinker al-Ghannushi, Karim Sadeq attempts to employ the purposes of
the law as overarching principles under which religious freedom and equality of all citizens can
be exercised. He envisions the maqasid al-Shariʿah to serve akin to constitutional principles (Karim
Sadeq, ‘Mas․lah․a and Rashid al-Ghannushi’s Reformist Project’, in Maqās․id al-Sharı̄ʿa and Contempo-
rary Reformist Muslim Thought, 151–75).
38 Muhammad Qasim Zaman, ‘The ʿUlama of Contemporary Islam and the Conceptions of the
Common Good’, in Public Islam and the Common Good, ed. Armando Salvatore and Dale F. Eickel-
mann (Leiden: Brill, 2004), 129–155, at 134–5.
39 Western scholarship not rarely portrays Islam as antithetical to modernity and modernization. For
a brief overview of such views, see Deina Abdelkader, ‘Modernity, the Principle of Public Welfare
(mas․lah․a) and the End Goals of Sharı̄ʿa (maqās․id) in Muslim Legal Thought’, Islam and Muslim–
Christian Relations 14 (2003): 163–74.

ʿAttia, Jamal al-Din. Towards Realization of the Higher Intents of Islamic Law: Maqās․id al-Shariʿa: A Func-
tional Approach, trans. (from Arabic) Nancy Roberts (London: International Institute of Islamic
Thought, 1428/2007).
Duderija, Adis (ed.). Maqās․id al-Sharı̄ʿa and Contemporary Reformist Muslim Thought (New York: Palgrave
Macmillan, 2014).
206
Ghazali, Abu Hamid Muhammad al-. Al-Mustasfa min ʿilm al-Usul. Ed. Hamza b. Zuhayr Hafiz, 4 vols.
( Jeddah, Saudi Arabia: Sharikat al-Madina al-Munawwara lil-Tibaʿ wa-l-Nashr, 1993).
Hourani, George F. Islamic Rationalism: The Ethics of ʿAbd al-Jabbār (Oxford: Clarendon Press, 1971).
Ibn ʿAshur, Muhammad al-Tahir. Maqasid al-Shariʿah al-Islamiyya (Tunis: al-Sharika al-Tunisiyya li-l-
Tawziʿ, 1978).
Ibn Ashur. Treatise on Maqasid al-Shariʿa, trans. (from Arabic) and annot. Mohamed El-Tahir El-Mesawi
(London: The International Institute of Islamic Thought, 1427/2006).
Jackson, Sherman A. ‘Literalism, Empiricism, and Induction: Apprehending and Concretizing Islamic
Law’s Maqās․id al-Sharîʾah [sic] in the Modern World’. Michigan State Law Review (2006): 1469–86.
Khamlishi, Ahmad al-. Wijhat Nazar, 4 vols (Rabat: Dar Nashr al-Maʿrifa, 1998 (vol. 2), 2000 (vol. 3),
2002 (vol. 4)).
Kızılkaya, Necmettin. ‘An Outline of the Historical Evolution of Qawāʿid Literature in Islamic Law’.
American Journal of Islamic Social Sciences 28 (2011): 76–105.
Opwis, Felicitas. ‘Mas․lah․a in Contemporary Islamic Legal Theory’. Islamic Law and Society 12 (2005):
183–223.
Opwis, Felicitas. Mas․lah․a and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to
8th/14th Century (Leiden: Brill, 2010).
Opwis, Felicitas. ‘New Trends in Islamic Legal Theory: Maqās․id al-Sharı̄ʿa as a New Source of Law?’
Die Welt des Islams 57 (2017): 7–32.
Qaradawi, Yusuf al-. Dirasa fi Fiqh Maqasid al-Shariʿah: bayna al-maqasid al-kulliyya wa-l-nusus al-juzʾiyya
(Cairo: Dar al-Shuruq, 1427/2006).
Qarafi, Ahmad b. Idris al-. Sharh Tanqih al-Fusul fi Ikhtisar al-Mahsul fi al-Usul (Cairo: Matbaʿat Kulli-
yyat al-Sharifa, 1381/1961).
Razi, Fakhr al-Din Muhammad b. ʿUmar al-. Al-Mahsul fi ʿIlm Usul al-Fiqh, 2 vols (Beirut: Dar al-
Kutub al-ʿIlmiyya, 1408/1988).
Shatibi, Ibrahim b. Musa al-. Al-Muwafaqat fi Usul al-Shariʿah. Ed. ʿAbdullah Diraz, 4 vols (Cairo: Dar
al-Fikr al-ʿArabi, n.d.).
207
12
Legal pluralism in Sunni
Islamic law
The causes and functions of
juristic disagreement
Ahmed Fekry Ibrahim
Introduction
The term used to describe legal pluralism in the primary sources of Islamic law is ikhtilāf,
which means ‘disagreement’ and usually refers to disagreements among jurists over points of
substantive law. In Twelver Shiʿism, juristic disagreements are permitted in the absence of the
Imam, when religious authorities may legitimately hold different positions on points of law.
In Sunni Islamic law, the majority of jurists came to accept legal disagreements (with a few
exceptions, as we shall see below) as an expression and manifestation of legal pluralism, so
long as the doctrine in question is not one over which scholars agreed at any given time,
constituting ‘consensus’ (ijmāʿ), a source of Sunni Islamic law, albeit not in Twelver Shiʿism,
the second largest Islamic sect. Consensus assumes that once a given generation unani-
mously agrees on a legal doctrine, this consensus forecloses future hermeneutic freedom to
re-interpret the sources. Yet despite the dominance of the doctrine of consensus, pluralism
was still maintained in some cases through hermeneutic manoeuvres or simply because some,
albeit few, jurists did not accept the validity of consensus as a source of law. Consensus was
one way to create unity out of legal hermeneutic and historical circumstances so flexible and
diffused as to allow for unlimited legal pluralism in theory.
In this chapter, I focus on Sunni Islamic legal pluralism, a phenomenon that resulted at
least partly from the history of Islam and the relationship between jurists and the state. In
the early Islamic period, a tension existed between the state and jurists due to the trauma of
the early Muslim civil wars in 656–661 and 680–692, which led to the accession to power
of rulers who were considered illegitimate or at least impious by many scholars. In the Sunni
Islamic imaginary, the Umayyad dynasty did not live up to the heritage of the Prophet
(d. 632) or his first four successors, when temporal and religious authority was less clearly
bifurcated. As early as the eighth and ninth centuries under the Abbasids, there was hostility
among many scholars to state intervention in matters of law and theology, as evidenced by
the jurists’ position on Abbasid attempts to centralize Islamic law and remove legal plural-
ism, as well as on the Qurʾan Inquisition of 833–848.1 The trauma of the Inquisition in the
collective Islamic imaginary and the failure of the Abbasid state to impose one theological
208
Legal pluralism in Sunni Islamic law
doctrine in a manner similar to Byzantine interventions in Christological debates would

make it hard for future Islamic states to make claims to theological or legal orthodoxy. These
events would help give rise to a unique theory on the relationship between the state and
religious scholars in Sunni Islam.
During the 11th and 12th centuries, the relationship between state and scholars would
incrementally grow into a systematic theory proffering a division of labour, whereby the state
was able to legislate in limited domains that did not in theory contradict the jurisprudence of the
jurists, but it was the state that enforced the law of the jurists, from whence it derived its own
legitimacy.2 Certainly legal pluralism (a function of juristic disagreement) pre-dated the emer-
gence of this theory. What this theory did was enable the legal pluralism that existed as early
as the second half of the seventh century – only decades after the early I slamic conquests of the
630s in the Near East and long before the articulation of the theory of Islamic g overnance – to
exist without sweeping state intervention. It thus fell upon jurists to determine the content
of Islamic law. Absent a rigid, clerical hierarchy that could impose one uniform code across
pre-modern Muslim societies, jurists balanced the requirements of justice and legal predictabil-
ity with the epistemic nature of Islamic legal authority, historically drawn from the individual
jurist’s personal hermeneutic engagement with the sources, known as ijtihād.
This unique politico-legal context gave rise to potentially unlimited legal pluralism and
uncertainty. Aware of the impracticability of extreme legal pluralism, and as a result of the
florescence of Islamic jurisprudence, jurists gradually limited interpretive freedom (ijtihād)
over the course of the 11th to the 13th centuries by arguing for the dearth of legal skills and
scholars capable of wide interpretive freedom.3 Despite the jurists’ efforts to rein in legal
pluralism through the limits they placed on ijtihād, Sunni Islamic law retained much of its
pluralism in the four extant schools, in addition to intra-school doctrinal pluralism.
This article addresses legal pluralism in Sunni Islamic law by exploring its causes as un-
derstood by both modern Western historians and pre-modern Islamic sources, the debates
about the validity of juristic disagreements among legal theorists, and disagreements over
the utilization of legal pluralism to achieve social and economic objectives. In addition to a
discussion of juristic disagreements in legal theory, I also address the different approaches to
juristic disagreements in substantive legal manuals, a topic that is intimately related to the
legal theoretical debate about the validity of juristic disagreements and the ontology of truth.
After examining the causes of juristic disagreements and whether or not they are justified
from the standpoint of the ontology of truth, I discuss the utilization of legal pluralism in
pre-modern Islamic courts.
Before we discuss the causes of legal pluralism, a word about the terms I use to refer to
legal plurality is in order. Legal pluralism suggests the equal validity of different laws that are
applicable in the same geographical space, whereas juristic disagreements do not necessarily
assume an equal normative weight to such disagreements. In other words, juristic disagree-
ments could either be rejected as non-normative, simply non-legal or such disagreements
could be accepted as equally valid articulations of the law. What I argue in this essay is that
juristic disagreements were debated and conceptualized by the majority of pre-modern Mus-
lim jurists as equally valid articulations of the law (in the sense of legal pluralism) since there
was no central authority to pronounce one view as the law and reject all others. Differently
put, juristic disagreements were translated through epistemological debates into a strong
ethos of legal pluralism, as we shall see below, rendering the two terms synonymous when
describing the views of the majority of Sunni jurists. Only a small minority of jurists rejected
legal pluralism outright, but as we shall see below, this position died out early on in Islamic
legal theory.
209
Ahmed Fekry Ibrahim
1 Causes of legal pluralism

The earliest sources of Islamic law (eighth and ninth centuries) attribute juristic disagree-
ments to the hermeneutic activities of jurists and those of earlier generations, as well as to the
practice of the Prophet and early Companions as preserved in reports passed down from one
generation to another (later known as hadith). While emphasizing the role of the personal
reasoning (ijtihād) of jurists, as evidenced by the discussions of disagreements among specific
legal scholars, early Muslim jurists also cited regional variations that resulted from the domi-
nance of specific doctrines in certain regions, due to the dispersion of Companions carrying
the Prophet’s legacy to the far corners of the newly conquered lands in the seventh century.
It was the dispersion of the Prophet’s legacy, as well as the hermeneutic engagement of jurists
with this legacy, that led to juristic disagreements, rather than external Byzantine or Sasanian
influences, for instance. According to Ibn Abi Hatim al-Razi (d. ca. 327/938–9), Malik re-
portedly abandoned a prior doctrine he had held after learning a Prophetic tradition reported
through the Egyptian al-Layth b. Saʿd (d. 175/791), hitherto unknown to him. According
to Ahmad b. al-Husayn al-Bayhaqi (d. 458/1066), al-Shafiʿi told Ibn Hanbal that the latter,
along with other hadith scholars, were more knowledgeable about hadith than al-Shafiʿi and
asked that they inform him of sound Prophetic reports whether they be Basran, Kufan or
Syrian, so that he can incorporate them in his legal doctrines. This perception that the early
differences among the schools were partially caused by accessibility to various iterations of
the memory of the Prophet as retained in the hadith literature would continue throughout
Islamic history. According to the 18th-century subcontinent scholar Shah Walyullah al-
Dihlawi (d. 1176/1762), one of the reasons for juristic disagreement is that some sound Pro-
phetic reports had not reached the Successor generation, so they had to rely on their personal
reasoning (ijtihād), or follow different Companions.4
Early Islamic legal sources often assume a level of geographical unity as they make refer-
ences to the views of Kufans, Basrans, Meccans, Syrians, Medinans or the Iraqis. Thus, Ibn
Hanbal (d. 241/855) was reported on the authority of his son ʿAbdullah to have said that if
someone were to follow the people of Kufa on date wine, the people of Medina on music
and the people of Mecca on mutʿa marriage, he or she would be a sinner.5 This assumes that
certain regions retained unique positions on points of law. These references led the 20th-
century Islamic legal historian Joseph Schacht to assume a geographical nature to what he
calls the ‘ancient schools’.6 Owing to Schacht’s view that the Prophetic tradition literature
was largely fabricated to support various legal positions, he attributed juristic disagreements
to regional differences. These differences resulted from the interaction between Islamic law
and the pre-Islamic legal traditions of Arabia, new modes of administration in lands under
Islamic rule, borrowing from neighboring civilizations such as the Byzantine Empire and
scholarly differences resulting from divergent modes of interpretation.7 Although Schacht
agrees with Muslim jurists on the presence of geographical trends, the latter emphasized the
hermeneutic dimension, which was restricted to the scholarly community, over the socio-
cultural, which was shaped by the more profane concerns of state and society.
The causes of juristic disagreements in Western historiography were thus attributed to a
number of factors, including divergent pre-Islamic regional cultures and early Islamic ad-
ministrative and social practices, that is, the interaction of state and society, as well as her-
meneutic differences resulting from scholarly disagreements over the interpretation of the
sources. The thesis that some differences were geographical in nature, whether to be found
in early Islamic sources or in Western historiography, suggests that there were two types
of juristic disagreements in the formative period of the ‘ancient schools’ – intra-regional
210
disagreements and inter-regional disagreements. Intra-regional differences resulted from

hermeneutic considerations and the personal authority of certain jurists, whereas at least
some of the inter-regional differences resulted from administrative, social and legal structures
and practices pre-dating Islam.
Wael Hallaq, emphasizing the hermeneutic through the ‘personal’ authority of various
jurists in different regions in the formative period, retorted that differences were in fact not
regional but personal, thus implicitly privileging the hermeneutic, and therefore Islamic,
over the regional, that is, the extra-Islamic. He challenges the presence of any doctrinal or
methodological similarities within any region to justify Schacht’s use of the term ‘ancient
schools’.8 Hallaq uses the diversity within each region – which Schacht does not at all deny,
as he acknowledges, for instance, ‘the variety of doctrines within the great geographical di-
visions’,9 – as evidence that there were never regional schools.
One could, pace Hallaq, find a common core of doctrines as in the case of the practice
(ʿamal) of the people of Medina as described by Malik, where most jurists of Medina agreed
(a regional consensus of sorts) on many points of law represented by the practice of the
community without ruling out the existence of internal doctrinal differences on other legal
questions. Similarly, one could also glean a certain methodology attributed to Abu Hanifa
and his companions in Kufa in the work of his student al-Shaybani (d. 189/805), in which the
latter claims that Abu Hanifa and his companions engaged in systematization through the use
of analogical reasoning and reports (of the Prophet and Companions). In fact, according to
al-Shaybani, these elements are the reason that people followed the opinions of Abu Hanifa
and his companions over those of the earlier generation of jurists such as Ibrahim al-Nakhaʿi
(d. 96/715) and al-Hasan al-Basri (d. 110/728). In other words, Abu Hanifa and his compan-
ions (who represent the early ‘regional’ schools) had a leading methodology that made their
legal opinions attractive enough to be followed.10 Be that as it may, Hallaq’s critique should
encourage us to think of geographical trends of juristic disagreements, rather than fully
developed schools at this early stage, with the caveat that the geographical and the personal
were not mutually exclusive.
If we subscribe to the thesis that there was a core of doctrines that represented the practice
of some regions as well as disagreements within these regions brought about by hermeneutic
differences, then judges must have followed this common core or the proto-consensus of
the city on some issues and exercised their own legal reasoning (ijtihād) on points of dis-
agreement. This picture tallies well with the practice of Medina in Malik’s (d. 179/795)
methodology.11 These geographical trends explain the jurists’ use of terms to describe the
legal orientations of the Basrans, Kufans or Medinans, despite their full awareness of the in-
dependent voices of different regions on many points of law. As representatives of the schools
of Kufa and Medina, Abu Hanifa (d. 150/767) and Malik were important voices among many
others of their cities. By the ninth century, their authority would be singled out as excep-
tional through a process of reimagining and authority construction designed to manage some
of the regional doctrinal and methodological differences by appealing to the unique personal
authority of these jurists.12
What is at stake in this debate over the development of the so-called ‘ancient schools’ is
that emphasizing the geographical lends credence to Schacht’s general assumption of a sig-
nificant influence of Byzantine and Sassanid legal cultures on Islamic law, while emphasiz-
ing the personal situates much of the doctrine of Islamic law more safely within an Islamic
hermeneutic milieu. However, neither side of the debate has claimed that the two causes
of juristic disagreements, that is the hermeneutic and regional, are mutually exclusive. Few
historians of Islamic law would dispute the claim that some of the differences resulted from
211
Ahmed Fekry Ibrahim
local practices pre-dating Islam, while others were the fruit of the intellectual and legal
disputations of the great centres of Islamic learning in the first two centuries after Prophet
Muhammad’s death (d. 11/632), such as Kufa, Basra, Damascus, Baghdad and Fustat. This
reality of juristic disagreements led to a debate about the ontology of legal truth, with some
legal theorists justifying or narrowing areas of legal pluralism.
2 Debates about the validity of legal pluralism in legal theory

The earliest sources of Islamic law show a contested view toward juristic disagreement and
its concomitant legal pluralism. To al-Shafiʿi (d. 204/820), such pluralism is to be expected
as part of the process of ijtihād, exerting one’s effort and reflection to reach a legal rule. By
its very definition, ijtihād cannot be based on apodictic evidence because if there was an
unambiguous textual source, there would be no need for either effort or reflection. Ijtihād
only deals with cases in which the proof texts are not clear, and therefore al-Shafiʿi arguably
held the view that knowledge of whether or not the result of the mujtahid’s (the person who
exercises ijtihād) reasoning on a point of law reflects the truth in the mind of God is not
accessible to jurists with any level of certainty, since the realm of ijtihād is necessarily that of
probability.13
In the late eighth and ninth centuries, a group of Muʿtazilis did not allow for any prob-
ability in law, presuming that legal evidence should always be apodictic. These proponents
of legal certitude included the Zahiris, Shiʿis and Muʿtazili theologians such as al-Asamm
(d. 202/816) and al-Marisi (d. 218/833). In Sunni Islamic law, this group, which rejected
legal pluralism outright, eventually died out. Almost simultaneously, traditionalists, who
put forward an agenda centred on purifying Islamic law from non-Islamic influences by
focusing on Prophetic reports, criticized juristic disagreements. In their estimation, such
disagreements were largely the result of the extensive utilization of ‘personal reasoning’
(raʾy), a form of ‘practical reason’ used to deal with questions unaddressed by the Qurʾan.
The traditionalists, who were fallibilists (more on this in the following paragraphs), argued
that if jurists abstained from using non-textual sources such as human reasoning, including
analogical reasoning, there would be few juristic disagreements and therefore less space for
legal pluralism.14
After al-Shafiʿi’s time, jurists operating in the tenth to the thirteenth centuries, drew a
distinction between rules whose proofs are apodictic, for which there is only one correct
mujtahid and one truth, and rules that are based on non-apodictic evidence, wherein there
was much disagreement among legal theorists. In the absence of apodictic evidence, is there
one truth or multiple truths? In other words, is every mujtahid correct in whatever legal
rule she or her reaches through his or her legal reasoning if the textual sources are not clear?
One group of legal theorists, the infallibilists, assumed that in this case, God has made multi-
ple truths available corresponding to the different views of the mujtahids, and therefore every
one of them has reached one of God’s truths. This position entailed accepting all juristic
disagreements, so long as the evidence is non-apodictic. This view of juristic disagreement
represented a strong valorization of legal pluralism. Another group were fallibilists who as-
sumed that there is only one truth in the mind of God, and therefore only one mujtahid is
correct in her or his ijtihād. In other words, each mujtahid can increase the probability of his
or her ijtihād corresponding to the one Truth in the mind of God by exerting more effort in
trying to discover this truth.15
Within the fallibilist position, there were different approaches to the scope of legal issues
that are unknowable. For some, the scope of legal issues over which there is only probable
212
knowledge was expanded to include practically all actual areas of disagreement among the
four Sunni schools. In other words, even though there is only one truth in the mind of God,
this truth cannot be known with certainty to us humans, and therefore, this position closely
resembles the multiplicity of truth doctrine in that it valorizes legal pluralism, equating it
with actual juristic disagreements.
Other fallibilists narrowed the scope of such points of law that are unknowable to a min-
imum due to their legal methodology, which assumed that many of the opinions of jurists
were simply incorrect. According to them, truth was indeed knowable in the majority of cases
of actual disagreement, opining that many juristic disagreements are not justified. This camp
includes jurists such as the Zahiri Ibn Hazm (d. 456/1063), Ibn ʿAbd al-Barr (d. 463/1071),
Ibn Taymiyya (d. 728/1328) and Ibn Qayyim al-Jawziyya (d. 751/1350). According to some
iterations of this position, every Muslim jurist and even layperson should aspire to know this
truth. In fact, Ibn Taymiyya explicitly criticized jurists who equated the unknowability of
truth with actual juristic disagreements, reasoning that some cases of juristic disagreement
were not justified since there was clear evidence supporting one position. Under this concep-
tualization, only a limited number of existing juristic disagreements carry normative weight,
thus limiting, albeit not foreclosing, legal pluralism. By drastically narrowing the scope of
probability or unknowability, Ibn Taymiyya set himself apart from the dominant practice
of his time. The dominant position of Sunnism of the 13th century onwards was that while
there is only one correct view in the mind of God, humans cannot know it with certainty so
long as the evidence is not apodictic. Actual juristic disagreements themselves were used as
an indication that the evidence is not apodictic, and therefore this doctrine justified existing
juristic disagreements, equating them with normative legal pluralism.
In the course of the systematization of the debate over the ontology of legal truth in the
tenth to the 13th centuries – a process partly driven by the dominance of Ashʿari theology –
al-Shafiʿi’s heritage was claimed by fallibilists and infalliblists, with both sides projecting
their own contradictory positions onto their eponym. By contrast, most jurists counted Abu
Hanifa, Abu Yusuf and al-Shaybani among the infalliblists.16
3 Functions of legal pluralism

Despite the acceptance of juristic disagreements among the earliest jurists as valid articula-
tions of the law, this legal pluralism was sometimes a source of anxiety owing to its potential
misuse. As early as the ninth century, jurists realized that while disagreements may result
from valid hermeneutic engagement with the sources, the laity were prone to manipulate
them to achieve worldly gains.17 This tension led to a spectrum of views on how the commu-
nity should manage these disagreements.
Unlike the proponents of legal certitude (e.g. the early Muʿtazilis of Baghdad), both the
fallibilists and the infallibilists accommodated legal pluralism, though the scope depended on
the different orientations within these positions. The infallibilists’ position offered the stron-
gest justification of legal pluralism, while fallibilist scholars such as Ibn Taymiyya allowed for
narrower areas of probability and therefore fewer acceptable cases of legal pluralism. Like Ibn
Taymiyya, earlier traditionalists such as Ibn Hanbal had an aversion to juristic disagreements
not only on account of their source: whimsical non-textual ‘opinion’, but also owing to the
profane functions that they could serve.18 Juristic disagreements, in their estimation, were
used by both jurists and the laity to circumvent the divine law when people picked and chose
different doctrines that fit their whims. According to them, this was a sign of corruption, a
pragmatism that is unbecoming of the divine law.
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Ahmed Fekry Ibrahim
Certainly, al-Shafiʿis’ infallibilism does not necessarily entail the permission of the
laity’s picking and choosing of juristic views pragmatically, yet it is a precondition for
the acceptance of legal pluralism and its concomitant pragmatic functions. By contrast,
the view that completely rejects probability in legal matters, attributed to early Muʿta-
zilis such as Bishr al-Marisi and al-Asamm, forecloses such pluralism and eclecticism.
Although infallibilism and certain versions of fallibilism may act as prerequisites for the
acceptance of pragmatic forum selection (i.e., choosing between different schools), the
question of whether Muslims could pick and choose from the range of juristic disagree-
ments a view that suits their secular needs offers no clear-cut correspondence to a jurist’s
position on the question of the multiplicity or unity of truth. An infallibilist like al-
Ghazali (d. 505/1111) did not allow pragmatic eclecticism,19 even though his position that
there are multiple truths lends itself readily to permitting the laity to pick and choose
pragmatically.
Another position that is conducive to the permission of pragmatic eclecticism is the falli-
bilist position that there is only one truth that cannot be known with certainty and that the
realm of unknowability corresponds to actual legal disagreements in the Sunni schools. All
the supporters of pragmatic eclecticism came from these two camps, while most opponents
came from the fallibilist position that narrowed the scope of unknowability and viewed most
cases of legal disagreements negatively. Those who were minimalist in defining the scope of
unknowability discouraged people from choosing opinions based on what suits their needs,
obligating all jurists, and sometimes even the laity, to exercise ‘preponderance’ (tarjı̄h․) in ju-
ristic disagreements to weed out the ‘wrong’ views. Despite these patterns, the utilization of
legal pluralism to accommodate profane social needs through forum selection does not map
perfectly onto the fallibilist–infallibilist distinction.
During the time of al-Shafiʿi, and despite his arguably infallibilist position, he, along with
his contemporaries, was opposed to the laity’s pragmatic choices of forum. However, the
evidence points to the practice of pragmatic eclecticism as early as the ninth century from
the polemical discourse of traditionalists who described such pragmatism as a sign of sin or
even disbelief. Thus, the utilization of regional differences in the seventh to the ninth cen-
turies between Medina, Kufa, Basra, Damascus and Fustat to achieve pragmatic objectives
was soundly rejected by jurists with no minority position that one can reconstruct from the
available sources. We can call this position the formalist approach, as it relies on the process
of formal reasoning to weigh different juristic views against one another (tarjı̄h․),20 using legal
hermeneutics to determine which rule is the best articulation of the divine will. These for-
malists accepted disagreements on points of law in varying degrees, so long as they resulted
from following the proper rules of legal hermeneutics. According to these formalists, choices
could only be driven by methodological, hermeneutic considerations, rather than a focus on
the legal result. In a word, the formalists emphasized the process of hermeneutic engagement
itself regardless of the resulting disagreements, so long as the choice is not driven by a prag-
matic, result-based approach.
The competing position was a pragmatic approach 21 that was concerned not with the pro-
cess of formal reasoning but with the legal result itself. In the formative period of Islamic law,
the formalist approach dominated in juristic discourse, albeit not in practice as the polemics
themselves suggest. It was not until the 13th century that the dominant juristic discourse
shifted to the pragmatic approach, partly to justify existing court practices.22 Having dis-
cussed the causes and functions of juristic disagreements, in what follows I examine some
examples of how these theoretical approaches (drawn from tomes of legal theory) played out
in manuals of comparative law and in actual court practice.
214
4 Approaches to legal pluralism in substantive legal discourse
4.1 Fallibilist formalism: the preponderance (tarjı‐h∙) approach

By way of illustration, I will mention two examples of fallibilist scholars who encouraged
the formalist exercise of preponderance albeit for different objectives, namely Ibn Hazm
(d. 456/1063) and Ibn Rushd (d. 595/1198). Ibn Hazm, similar to traditionalists such as Ibn
Hanbal or Ibn Taymiyya, was a fallibilist who narrowed the scope of acceptable juristic
disagreements. His position was shaped by his views on taqlı̄d, ijtihād and the role of the
layperson in law making. Ibn Hazm explains why he wrote his magnum opus al-Muhalla by
saying that his intention was to explain the causes of disagreement among jurists with the aim
of ‘correcting’ (tash․ı̄h․) them in order to reach the truth (al-h․aqq). Being a literalist (Zahiri),
he in theory only accepted the Qurʾan and the hadith as valid sources of law. Unlike many
traditionalists, one of Ibn Hazm’s objectives was to demonstrate the invalidity of analogical
reasoning as a source of law. Explaining his approach to the hadith literature, Ibn Hazm
stated that he only used a sound report as evidence for a given position and only contradicted
a report when it was weak or abrogated.23
Ibn Hazm’s methodology entails reproducing the evidence in order to ‘verify’ that a
given view is indeed based on sound textual sources as opposed to the whims of jurists. It
is essential that any reader, whether a layperson or a jurist, is able to reproduce the process
of verification (the reproduction of textual evidence), which, according to Ibn Hazm and
other like-minded jurists, was required of every Muslim if they were to protect themselves
from the snare of taqlı̄d (blind following). In Ibn Hazm’s anti-clericalism, even a layperson
is capable of reading the textual proofs supporting legal rulings or at least she or he can have
someone read these textual proofs to them to ascertain that the rulings are indeed God’s law.
On substantive legal issues, Ibn Hazm placed the evidence before the reader and engaged in
both hermeneutic analysis and hadith criticism to counter the views of his opponents. The
objective of his text is twofold: to provide verification to the laity, who need to exercise ittibāʿ
(adherence to the Qurʾan and Sunnah) rather than blindingly follow the views of jurists, and
to show the invalidity of opposing positions.24
Ibn Rushd, an Andalusian polymath and a practising judge, wrote Bidayat al-Mujtahid
wa-Nihayat al-Muqtasid as a comparative work of juristic disagreement designed to provide
jurists with the methodological tools to understand why disagreements among jurists exist,
in order to enable them to come up with juristic opinions for new cases. Some of these dis-
agreements resulted from different analogies, conflicting Prophetic reports, or varying inter-
pretations of the textual sources. According to him, differences of opinion are inevitable due
to the nature of legal hermeneutics and the different ways in which analogical reasoning can
operate. Despite his general following of the Maliki school, Ibn Rushd occasionally exercised
preponderance among the different views, privileging Hanafi over Maliki positions on some
points of law.25 In other instances, he devised new ijtihād, going against the available corpus
of juristic disagreements.26 Ibn Rushd walked the reader through these varying hermeneutic
modes in order to assist her or him in exercising ijtihād on new cases. Unlike Ibn Hazm,
although Ibn Rushd disagreed with some jurists and assumed that his own ijtihād is closer in
terms of probability to the truth, he did not seek to invalidate these disagreements. In other
words, Ibn Rushd’s fallibilism accepts a wider range of disagreements than Ibn Hazm’s. De-
spite their varying emphases on the range of acceptable disagreements, both approaches agree
that the exercise of preponderance, that is, a choice based on evidence rather than the social
function of the legal result, should drive comparative jurisprudence.
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Ahmed Fekry Ibrahim
4.2 The pragmatic approach

The approach of Ibn Hazm and Ibn Rushd contrasts sharply with that of the 14th-century
Shafiʿi scholar ʿAbd al-Rahman al-Dimashqi, a practising judge in the Levant under the
Mamluk sultanate. Al-Dimashqi was concerned with the legal result of juristic disagree-
ments, rather than determining preponderance (tarjı̄h․) based on an assessment of the evidence
supporting various juristic positions. In 780/1378, al-Dimashqi wrote a book on juristic
disagreements entitled Rahmat al-Umma fi Ikhtilaf al-Aʾimma (Differences among the Imams
are a Blessing for the Community), designed to enable students to learn only the doctrines of
the schools without any need for legal reasoning. The objective of the text was not to point
out the invalidity of other opinions nor to convince the reader to follow the author’s opinion
as the only correct opinion, as was Ibn Hazm’s objective; nor was it to help jurists exercise
ijtihād in new situations, as was the case with Ibn Rushd. It was rather meant to assist stu-
dents and judges in navigating legal pluralism so that they may know the substantive law of
the four schools to be able to use this legal pluralism pragmatically to serve people’s various
needs. This would also be the objective of ʿAbd al-Wahhab al-Shaʿrani (d. 973/1565), except
that he would develop a theory to justify such pragmatism. According to al-Shaʿrani’s Kashf
al-Ghumma, legal pluralism was divinely ordained, for God created two levels of the law: one
is strict and the other lenient. In order to convince his opponents, the formalists, that all the
views of the four Sunni schools can be selected by laypeople pragmatically, he proceeded to
show that all these opinions were based on valid evidence, including sound traditions.27
The objective of al-Shaʿrani’s work was the exact opposite of that of Ibn Hazm, for the
latter sought to show the invalidity of many of the views of jurists in the four Sunni schools.
Al-Shaʿrani explained in his Mizan that God created legal disagreement in order to address
the diversity of people with varying degrees of moral and physical strength. Laypeople, for
instance, unlike elite scholars were, according to this typology, in a constant state of moral
weakness and, therefore, they were addressed by God with the less stringent rulings. Follow-
ing his teacher, al-Suyuti (d. 911/1505), al-Shaʿrani was an infalliblist, a minority position
among jurists in the Mamluk and Ottoman periods. The objective of pragmatists, such as
al-Dimashqi and al-Shaʿrani, was to facilitate certain court transactions.28
These two approaches to juristic disagreement competed in juristic discourse throughout
the Mamluk and Ottoman periods, but the pragmatic approach dominated court practice.
Despite its dominance, one can also see examples of the formalist approach in Ottoman
Egyptian courts on the question of child custody, for instance.29 In the modern period, jurists
and legislators in colonial and post-colonial Muslim nation-states would rely on doctrinal
eclecticism within the legal pluralism of Sunnism (known as takhayyur and talfı̄q) to accom-
modate new conceptions of the family, childhood, womanhood and human rights.30
Conclusion
The unique relationship between the state and religious scholars in Islam, born of the his-
torical events of the early centuries of Islam, was one of tension and a division of labour,
limiting the state’s ability to dictate the law top-down, much less centralize it in such a way
as to remove legal pluralism. Jurists were in theory responsible for developing the law in iso-
lation from the workings of the state, while the state developed administrative and criminal
laws that were not addressed by jurists. The lack of a rigid hierarchy of religious authority
in Sunni Islam and the epistemic nature of this authority meant that jurists could not com-
pletely supplant legal pluralism, despite their efforts to create a more predictable and efficient
216
legal system. These efforts included the jurists’ placement of limits on the interpretive free-
dom of individual jurists over the course of the 11th to the 13th centuries by arguing for the
dearth of skilled jurists in their times and privileging the collective interpretations of the
four Sunni schools over individual hermeneutic engagements. Certainly, this was a process
of shifting the emphasis from the individual to the group, rather than a complete annihilation
of the former, in order to balance the need for legal predictability – which was needed due to
the extreme legal pluralism characteristic of the first three centuries of Islam – with individ-
ual epistemic authority. The resulting system retained much of its pluralism in the four Sunni
schools, as well as intra-school doctrinal differences and arguments.
After laying out the historical institutional underpinnings of legal pluralism, I discussed
causes of juristic disagreements from the perspective of both pre-modern Muslim jurists and
modern Western historians. Both sides agreed, despite Hallaq’s critique, that geographical
differences existed in the early period of Islamic law, but each side emphasized different
causes. Muslim scholars of the pre-modern era often argued that such differences were mostly
the result of hermeneutic engagement with the textual sources or due to the dispersion of
Companions carrying the legacy of the Prophet after the Islamic conquests of the Near
East. Many Western scholars, while accepting differences resulting from hermeneutic and
methodological geographical differences, placed more emphasis on the pre-Islamic profane
practices of Byzantine and Sassanid societies and administration.
The reality of juristic differences gave rise to an important legal theoretical debate about
whether or not legal rules should be based on probable or apodictic proofs. In the late eighth
and ninth centuries, a group of Muʿtazilis supported legal certitude, rejecting legal plural-
ism in law as a consequence of their rejection of the possibility of basing laws on probable
proofs. This group died out in Sunni legal theory. By the tenth to the 13th centuries, most
legal theorists assumed that some legal rules are based on apodictic proofs, in which case
they contended that no disagreement is permitted. They disagreed, however, over whether
in the case of legal rules based on probable proofs, there is one truth in the mind of God
(fallibilists) or as many truths as there are legal disagreements (infallibilists). The infallibilist
position was the most conducive to accepting the manifestations of legal pluralism as equally
valid articulations of the divine law. Within the fallibilist position, there were two different
approaches: one assumed much more juristic agency in discovering this truth through the
examination of evidence and relying on the textual sources, rather than human reasoning.
The other fallibilist approach assumed that even though there is only one truth in the mind
of God, its knowledge is not accessible to us, and therefore from our human perspective, all
existing juristic disagreements are equally valid since we have no way of adjudicating among
these options. This approach dominated Sunnism by the 13th century.
Another question that arises from the issue of juristic disagreements is whether or not
they can be utilized pragmatically to accommodate changing social and individual needs.
Despite the practice of pragmatic eclecticism within Sunnism’s legal pluralism, some jurists
followed a formalist approach whereby they considered hermeneutic engagement as the main
adjudicator on juristic disagreements. Others were legal pragmatists, allowing the legal result
itself to drive the choice of a given juristic view from among the four Sunni schools. While
the formalist approach dominated juristic discourse until the 13th century, the pragmatic
approach came to compete with formalism in juristic discourse thereafter. Yet in practice,
pragmatism exercised complete dominance over Mamluk and Ottoman courts in the medie-
val and early modern periods. I have given examples of both the formalist and pragmatic ap-
proaches in the works of renowned scholars such as Ibn Hazm, Ibn Rushd, ʿAbd al-Rahman
al-Dimashqi and al-Shaʿrani. The fallibilist al-Shaʿrani developed an ingenious theory to
217
Ahmed Fekry Ibrahim
justify forum and doctrinal selection, a practice that was taking place widely in the courts of
his time. This evolution of Sunni legal pluralism and the debates about pragmatic forum and
doctrinal selection would be utilized in the modern codification of Islamic law, where the
modern nation state would utilize this traditional tool in order to create Islamic statutes that
are compatible with new discourses of family, womanhood, childhood and human rights.
Notes
1 Dimitri Gutas, Greek Thought, Arabic Culture: The Graeco-Arabic Translation Movement in Baghdad
and Early ʿAbbāsid Society (2nd–4th/8th–10th Centuries) (London and New York: Routledge, 1998),
75–83; Ahmed Fekry Ibrahim, Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse,
NY: Syracuse University Press, 2015), 35–36.
2 ʿAli ibn Muhammad Mawardi, The Ordinances of Government: A Translation of al-Ah․kām al-Sult․āniyya
wʼ al-Wilāyāt al-Dı̄niyya, trans. Wafaa Hassan Wahba (Reading: Garnet Publishing, 1996).
3 Ahmed Fekry Ibrahim, ‘Rethinking the Taqlı̄d Hegemony: An Institutional, Longue-Durée Ap-
proach’, Journal of the American Oriental Society 136:4 (2016): 808–12.
4 Ibn Abi Hatim al-Razi, Al-Jarh wa-l-Taʿdil, ed. ʿAbd al-Rahman b. Yahya al-Yamani (Beirut:
Dar al-Kutub al-ʿIlmiyya, 1953), 1:31–2; Ahmad b. al-Husayn al-Bayhaqi, Manaqib al-Shafiʿi li-l-
Bayhaqi, ed. al-Sayyid Ahmad Saqr (Cairo: Dar al-Turath, 1970), 1:528; Shah Wallyullah Dehlawi,
Al-Insaf fi Bayan Asbab al-Ikhtilaf, ed. ʿAbd al-Fattah Abu Ghudda, 3rd edn (Beirut: Dar al-Nafaʾis,
1986), 42–4; Jonathan Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oxford:
Oneworld, 2009), 27–9.
5 Ahmad b. Hanbal, Masaʾil al-Imam Ahmad Ibn Hanbal Riwayatu Ibnihi ʿAbdullah Ibn Ahmad, ed.
Zuhayr al-Shawish (Beirut: al-Maktab al-Islami, 1981), 449; Abu Muhammad al-Hasan b. ʿAli
b. Khalaf al-Barbahari, Sharh al-Sunna, ed. ʿAbd al-Rahman b. Ahmad al-Jumayzi (Riyadh: Dar
al-Minhaj, 2005), 116.
6 Joseph Schacht, An Introduction to Islamic Law (Oxford and New York: Clarendon Press, 1964),
28–36; Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press,
1967), 7–10; Noel James Coulson, A History of Islamic Law (Edinburgh: Edinburgh University
Press, 1962), 36–52.
7 Schacht, An Introduction to Islamic Law, 19–22; Coulson, A History of Islamic Law, 27–8, 50–2;
Schacht, The Origins of Muhammadan Jurisprudence, 6–10.
8 Schacht, An Introduction to Islamic Law; Schacht, The Origins of Muhammadan Jurisprudence; Chris-
topher Melchert, The Formation of the Sunnı̄ Schools of Law, 9th–10th Centuries C.E. (Leiden and
Boston, MA: Brill, 1997), 32–47; Wael B. Hallaq, ‘From Regional to Personal Schools of Law? A
Reevaluation’, Islamic Law and Society 8:1 (2001): 1–26; Jonathan E. Brockopp, ‘Competing The-
ories of Authority in Early Mālikı̄ Texts’, in Studies in Islamic Legal Theory, ed. Bernard G. Weiss
(Leiden and Boston, MA: Brill, 2002), 3–22; Jonathan E. Brockopp, Early Mālikı̄ Law: Ibn ʿAbd
Al-H․ akam and His Major Compendium of Jurisprudence (Leiden and Boston, MA: Brill, 2000); Jona-
than E. Brockopp, ‘Interpreting Material Evidence: Religion at the “Origins of Islam”’, History of
Religions 55:2 (2015): 121–47; Patricia Crone, Roman, Provincial, and Islamic Law: The Origins of the
Islamic Patronate (Cambridge and New York: Cambridge University Press, 1987).
9 Joseph Schacht, The Origins of Muhammadan Jurisprudence, 7.
10 Ahmed Fekry Ibrahim, ‘Rethinking the Taqlı̄d-Ijtihād Dichotomy: A Conceptual-Historical
Approach’, Journal of the American Oriental Society 136:2 (2016): 290–1; Muhammad b. al-Hasan
al-Shaybani, Al-Asl, ed. Mehmet Boynukalın (Beirut: Dar Ibn Hazm, 2012), 12:102.
11 Yasin Dutton, The Origins of Islamic Law: The Qurʾan, the Muwat․․taʾ and Madinan ʿAmal (Richmond,
Surrey: Curzon Press, 1999).
12 For an excellent analysis of the construction of authority that accompanied the formation of schools,
see Wael B. Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge
University Press, 2001).
13 Muhammad b. Idris al-Shafiʿi, Al-Risala, ed. Ahmad Muhammad Shakir (Beirut: Dar al-Kutub
al-ʿIlmiyya, 1940), 2:476–505; Ahmed Fekry Ibrahim, ‘Rethinking the Taqlı̄d-Ijtihād Dichotomy:
A Conceptual-Historical Approach’, Journal of the American Oriental Society 136:2 (2016): 287–8.
14 Abu Muhammad al-Hasan b. ʿAli b. Khalaf al-Barbahari, Sharh Al-Sunna, ed. ʿAbd al-Rahman b.
Ahmad al-Jumayzi (Riyadh: Dar al-Minhaj, 2005), 35–40, 90–116.
218
15 Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta,
GA: Lockwood Press, 2013), 262–72; Ibrahim, Pragmatism in Islamic Law, 49–60.
16 Zysow, The Economy of Certainty, 262–72; Ibrahim, Pragmatism in Islamic Law, 49–60.
17 Ahmad b. Hanbal, Masaʾil al-Imam Ahmad Ibn Hanbal Riwayatu Ibnihi ʿAbdullah Ibn Ahmad, ed.
Zuhayr al-Shawish (Beirut: al-Maktab al-Islami, 1981), 449; Abu Hamid al-Ghazali, Al-Mustasfa
min ʿIlm al-Usul, ed. Hamza b. Zuhayr Hafiz (Medina, Saudi Arabia: Sharikat al-Madina al-
Munawwara li-l-Tibaʿa, 1992), 4:154 –5.
18 Ibrahim, Pragmatism in Islamic Law; Ibn Hanbal, Masaʾil al-Imam Ahmad ibn Hanbal Riwayatu Ibnihi
ʿAbdullah ibn Ahmad, 449.
19 Ibrahim, Pragmatism in Islamic Law, 3.
2 0 Tarjı̄h․ is a hermeneutic process by which jurists weigh the evidence relating to a legal problem
to determine which opinion has the strongest evidence. The function of tarjı̄h․ after the rise
of schools was to reduce legal pluralism within each school and, less commonly, across school
boundaries. Once a preponderant opinion is selected by the leading authorities of a given school,
it becomes its collective articulation of the law both in court adjudication and fatwa-giving. On
tarjı̄h․, see further Hallaq, Authority, Continuity, and Change, 147–66; Sherman Jackson, Islamic
Law and the State: The Constitutional Jurisprudence of Shihāb Al-Dı̄n Al-Qarāfı̄ (Leiden and Boston,
MA: Brill, 1996), 83–9; Ulrich Rebstock, ‘A Qād․ ı̄’s Errors’, Islamic Law and Society 6:1 (1999):
1–37, at 10–11.
21 On formalism and pragmatism, see Daniel A. Farber, ‘The Inevitability of Practical Reason:
Statutes, Formalism, and the Rule of Law’, Vanderbilt Law Review 45 (1992): 533–59; Richard
Rorty, ‘The Banality of Pragmatism and the Poetry of Justice’, Southern California Law Review 63
(1990–1989): 1811; Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986); B. Z.
Tamanaha, ‘Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Soci-
olegal Studies, and the Fact-Value Distinction’, American Journal of Jurisprudence 41:1 (1996): 315–55;
Richard A. Posner, ‘Pragmatic Adjudication’, Cardozo Law Review 18 (1997–1996): 1–20; Richard
A. Posner, The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990).
22 Ibrahim, Pragmatism in Islamic Law, 63–104.
23 Abu Muhammad ʿAli b. Ahmad b. Saʿid b. Hazm, Al-Muhalla, ed. Muhammad Munir Dimashqi
(Cairo: Idarat al-Tibaʿa al-Muniriyya, 1933), 1:2.
24 On verification of juristic opinions, see Ibrahim, ‘Rethinking the Taqlı̄d-Ijtihād Dichotomy:
A Conceptual-Historical Approach’; Ibn Hazm, Al-Muhalla, 10:235–9.
25 Muhammad b. Ahmad b. Muhammad b. Ahmad b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-
Muqtasid, 6th edn (Beirut: Dar al-Maʿrifa, 1982), 1:1–30; Yasin Dutton, ‘The Introduction to Ibn
Rushd’s Bidāyat al-Mujtahid’, Islamic Law and Society 1:2 (1994): 188–205.
26 Wael B. Hallaq, ‘Murder in Cordoba: Ijtihād, Iftāʾ and the Evolution of Substantive Law in Medi-
eval Islam’, Acta Orientalia 55 (1994): 55–83; b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid,
402–3.
27 Ahmed Fekry Ibrahim, ‘The Codification Episteme in Islamic Juristic Discourse between Inertia
and Change’, Islamic Law and Society 22:3 (2015): 35–48; Ahmed Fekry Ibrahim, ‘Al-Shaʿrānı̄’s
Response to Legal Purism: A Theory of Legal Pluralism’, Islamic Law and Society 20:1–2 (2013):
110–40; Jalal al-Din al-Suyuti, Jazil al-Mawahib fi Ikhtilaf al-Madhahib (Cairo, n.d.), al-Azhar,
http://www.alazharonline.org.
28 Ibrahim, ‘The Codification Episteme’, 35–48; Ibrahim, ‘Al-Shaʿrānı̄’s Response to Legal Purism’;
al-Suyuti, ‘Jazil al-Mawahib fi Ikhtilaf al-Madhahib’.
29 Ahmed Fekry Ibrahim, Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth
Century, (Cambridge, UK: Cambridge University Press, 2018).
30 Ibrahim, Pragmatism in Islamic Law, 167–229.

Dutton, Yasin. The Origins of Islamic Law: The Qurʾan, the Muwat․․taʾ and Madinan ʿAmal (Richmond,
Surrey: Curzon Press, 1999).
Hallaq, Wael B. Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge University
Press, 2001).
Hallaq, Wael B. Sharı̄ʿa: Theory, Practice, Transformations (Cambridge and New York: Cambridge Uni-
219
Ahmed Fekry Ibrahim
Ibrahim, Ahmed Fekry. Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse, NY:
Syracuse University Press, 2015).
Krawietz, Birgit. ‘Cut and Paste in Legal Rules: Designing Islamic Norms with Talfiq’. Die Welt des
Islams 42:1 (2002): 3–40.
Rapoport, Yossef. ‘Legal Diversity in the Age of Taqlı̄d: The Four Chief Qād․ ı̄s under the Mamluks’.
Islamic Law and Society 10:2 (2003): 210–28.
Schacht, Joseph. An Introduction to Islamic Law (Oxford and New York: Clarendon Press, 1964).
Tucker, Judith E. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley:
University of California Press, 1998).
Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta,
GA: Lockwood Press, 2013).
220
13
Interpreting Islamic law
through legal canons
Intisar A. Rabb
Introduction: the study of legal canons (Qawāʿid fiqhiyya)

Islamic legal canons are interpretive principles that represent varied conceptions of Islamic
law and its values, as they developed over time and space. Scholars of Islamic law – both me-
dieval and modern – have typically defined these legal canons narrowly, as general principles
governing many particular cases, and used to derive related Islamic legal rulings.1 I consider
this definition narrow because it does not take into account the extratextual origins of or
presuppositions behind many legal canons, or the ways in which some canons operate outside
of the textual confines of Islamic law (qua legal rulings) and instead help structure its system.
Moreover, I argue that, historically, Muslim judges and jurists used certain interpretive tools
to construct Islamic law’s institutions – legal, judicial and governing—and to promote certain values
or policies over others. In short, closer study of a more capacious understanding of Islamic
law – drawing on insights from comparative theories of interpretation – shows the reach and
significance of Islamic legal canons to be much broader than the existing literature suggests.
Having emerged at the start of Islam’s history in the seventh century, Islamic legal canons have
played a major role in the construction of Islamic law, broadly construed, ever since.2 The canons
come from both the classical enumeration of four foundational sources (Qurʾān, Sunna, consensus
and reasoning) and from juristic and judicial practices addressing local disputes, responding to
political authority and reflecting social-cultural norms. Throughout Islam’s history, judges and
jurists have used legal canons not only to restate Islamic law, but to construct it. In the process,
they deposited into the corpus of canons their ideas of valid interpretive and procedural principles,
social-moral values, and the scope of their own power vis-à-vis other institutional actors.
Studying legal canons may well be essential to understanding Islamic law itself because the
canons offer a wide-angled lens through which scholars can examine the history of Islamic law
in terms of substance and procedure, textual and contextual bases for the law, and hidden values
governing the law and its institutions. This lens can also bring into focus the understudied laws,
procedures and institutional actors who regularly deployed legal canons to shape Islamic law,
historically. That focus can in turn sharpen the conventional image of textual origins of Islamic
law to reveal the contours of its extratextual bases. Legal canons spotlight an undeniable degree
of judicial discretion, interpretive diversity and legal change permeating Islamic law. They rep-
resent key tools by which jurists argued with respect to notions of equity, necessity or rational
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Intisar A. Rabb
presumptions to produce or justify novel rulings that changed over time, often for discoverable
social-institutional reasons to the legal historian or comparative lawyer. All told, approaching
Islamic law with an eye on the role that legal canons played in constructing it can help jurists
and legal historians chart a fuller and more textured picture of Islamic law.
Enterprising jurists in the Muslim world have taken up this study in recent decades to
some degree. But they also complain that attempts to define and classify Islamic legal canons
have not been precise or comprehensive – to the detriment of the field.3 I too have com-
plained of the problem with respect not only to internal discussions of Islamic law by the ju-
rists, but also to external arguments among historians and lawyers.4 I did not seek to remedy
the lack underlying my complaint when first made. I seek to remedy it now.
This essay explores the types and functions of legal canons in the construction and inter-
pretation of Islamic law, historically. It first examines the textual and other sources of legal
canons. It next presents a comprehensive rubric – drawing on classical Islamic categories and
modern American theories of interpretation – that attempts to outline what I have identified
as five major categories of Islamic legal canons. It concludes with ideas for further study of
this emerging field in areas of legal history, legal theory and comparative law.
1 Origins and sources of Islamic legal canons

Islamic legal canons appeared right at Islam’s inception and circulated during the ‘founding
period’ of the seventh to tenth centuries, and their influence and reach expanded thereafter in
central Islamic lands. On the use of ‘founding period’ to refer to what other scholars have called
Islam’s “formative period” during the first three centuries (‘early founding period’) or the next
two (‘late founding period’), see my Doubt in Islamic Law, 8–9 and n. 15. The available sources
from the founding period provide firm evidence of their presence and circulation if not clear at-
tribution or textual provenance, which jurists would elaborate later. According to the later jurists
writing on the subject, the canons have textual sources that parallel the foundational sources of
Islamic law: the Qurʾān, Sunna, consensus and certain forms of legal reasoning. Less recognized
by these jurists but no less important is that Islamic legal canons also come from a number of
extratextual or ‘extrinsic’ sources for Islamic law: judicial practice, interpretive presumptions and
even foreign legal norms.5 This section explores each.
1.1 Textual sources: Qurʾan and hadith

Some Islamic legal canons are present in the text of the Qurʾan itself. The Qurʾan is the
primary source for Islamic law, even though its law-related verses are a minor portion of the
full text. Of some 6,000 verses, only about 500 have explicitly legal content. Of those, most
deal with ritual law and acts of devotion, such as rules for prayer and pilgrimage. That leaves
approximately 190 verses that address non-ritual aspects of law.6 Some of those verses spec-
ify what later scholars took to be legal canons. For example, one verse commands Muslims
to ‘honor all contracts’.7 Jurists treated that statement as a legal canon governing the law of
contract and financial transactions.8
Islamic legal canons are also present in the corpus of hadith reports. Of the thousands of
statements attributed to the Prophet and other early Muslim leaders, or ‘founding figures’,
some hadith reports came to be labelled legal canons (and vice versa: some canons came to
be labelled hadith reports). An example is the no harm report – later called the no harm canon –
which was unanimously attributed to the Prophet, in both Sunni and Shiʿi law. It commands
that there be ‘no harm and no retaliatory infliction of harm’.9 Another prophetic report-as-
legal canon, which echoes the Qurʾanic canon on contracts, is the contractual condition canon,
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Islamic law through legal canons
stipulating that ‘Muslims must honor contractual conditions’.10 A third canon of this type,
also attributed to the Prophet, is the doubt canon, requiring judges to ‘avoid criminal punish-
ments in cases of doubt’.11 Attributions to the Prophet sometimes came after circulation of the
canon, as I have detailed in this case: the doubt canon was canonized through early citation
and use in judicial practice then textualized through later attribution to the Prophet.12
While it is significant to note that not all of the reports verifiably go back to the Prophet,
and that some are attributed to him only after the founding period – neither of these facts
stymied the use of legal canons. Put differently, the authenticity of a prophetic attribution
did not determine the authoritativeness of a legal canon during the founding period. The
requirement of chains of transmission (isnād) linking the Prophet to the articulation of a
canon as a measure of authenticity was a feature of textualism that came much later in the
development of Islamic law – around the fourth century, at the end of the founding period.
Moreover, the need for documenting and authenticating a proper chain of transmission to
verify the textual-genealogical provenance of hadith reports did not always apply to legal
canons during the founding period. In short, questions of textual authenticity for canons
became something of a textualist preoccupation long after the early period in which canons
were in regular use. Thus, even when a minority of dissenting Muslim jurists raised issues of
provenance and authenticity, as did Ibn H ․ azm, for example, in challenging the doubt canon,
most judges and jurists used legal canons nonetheless.13 In fact, the canons circulating during
the founding period were often a matter of common juristic knowledge and judicial practice.
Were these canons, then, a part of the Sunna? Jurists after the founding period concerned
with questions of origins and authenticity sometimes attributed these canons, as otherwise
unattributed legal opinions, to the Prophet directly – likely reasoning that they were his
word or rational corollaries to it. It is in this way that some legal canons came to be consid-
ered foundational texts.14
1.2 Interpretive sources: consensus and legal reasoning

The second two sources of Islamic legal theory are interpretive, in that they help jurists de-
termine which rulings are authoritative; and the legal canons follow this division. The first
interpretive source is ‘consensus’, by which early Muslim jurists designated authoritative rul-
ings by reference to the view of a majority view on an issue not covered by the foundational
texts or on which there was more than one opinion circulating. In step with this notion, a set
of Islamic legal canons express a ‘consensus’ (or majority agreement) of jurists on interpretive
rules to resolve contested issues that Islam’s foundational texts alone did not clearly resolve.
We can call these interpretive rules ‘consensus canons’.
Some examples of consensus canons, or agreed-upon interpretive rules, are in order. A
key consensus canon is the plain meaning canon, directing judges and jurists to ‘make no inter-
pretation in the face of clear text’.15 This canon required judges to apply the plain meaning
of foundational texts (ostensibly the Qurʾan and hadith reports, but in practice, also many
more norms and rulings that came to be regarded as foundational and therefore as texts). This
canon begs the question as to when texts are to be counted as foundational and when plain
meaning is in fact plain. A simple example illustrates the point: in their classical jurispru-
dence, Muslim jurists labelled agreement of a majority of jurists (or the lack of overwhelming
dissent) on an issue ‘consensus’, and they further defined opinions that carried that label to be
foundational texts (nas․․s). Now the plain meaning canon implies that the absence of clear text
calls for interpretation. But the jurists’ expansion of text to include early majority opinions
called consensus meant that they had narrowed the scope of interpretation to matters beyond
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Intisar A. Rabb
the plain meaning of the Qurʾan and hadith as well as their own earlier interpretations. In
this way, later interpretation becomes subordinate to or foreclosed by early interpretation.
In contrast to the restrictive import of the plain meaning canon, other consensus canons of-
fered jurists considerable leeway in interpreting the foundational texts, however expansive they
came to be. The no harm canon, contractual condition canon and doubt canon are examples of such in-
terpretive consensus canons. In the face of significant ambiguities, these canons provided judges
and jurists with tools to resolve questions of when harm is permissible, whether particular
contractual stipulations are valid, and whether and how state officials were to enforce or avoid
criminal punishments. Muslim writing after the founding period, when these consensus can-
ons were widely used, attributed these canons to the Prophet, turning them into texts as well.16
The second interpretive source is legal reasoning, and refers to varied types of reasoning –
from analogy (for Sunnis) to practical reasoning (for Shi’is). The lion’s share of legal can-
ons were not products of consensus, but represented these varied types of legal reasoning.
Formally, Sunni jurists accepted only text-based analogical reasoning, while Shiʿi jurists
appealed to practical reasoning and rejected analogy. But their respective works of juris-
prudence and body of legal canons indicate that both Sunni and Shiʿi jurists appealed to
extratextual sources as well. For example, Sunni writings accept canons that might fairly
be considered equitable principles – allowing the use of necessity (d ․arūra), equity (istih
․ sān or is-
tis․lāh․ ), or certain presumptions to derive new rulings.17 Likewise, later Shiʿi works articulate
sets of canons that range from what they call procedural principles (us․ūl ʿamaliyya) and standards
of reasonable people (sı̄rat al-ʿuqalāʾ) to other norms that go beyond the four corners of a text.18
These canons could, and did, differ from school to school, jurist to jurist.
Alongside consensus canons, these ordinary canons typically serve as gap-filling rules, de-
signed to guide interpretation when the text runs out. For example, jurists might use them to
resolve an important question of substantive law: whether the Islamic law of contract recognizes
local exchange transactions as valid sales despite their divergence from ordinary Islamic contract
forms and despite silence on the issue in the foundational sources. The custom canon addresses
that scenario: it specifies that ‘custom has legal authority’ in the absence of a relevant text. This
canon – sometimes together with a contractual condition canon – affirms the validity of local forms
of exchange transactions and accompanying conditions or implied rights.19 Other gap-filling
canons are interpretive rules, such as the canon against superfluity instructing jurists and judges that
‘giving meaning to a text is better than rendering it superfluous’.20 The sources I have examined
show how these and other legal canons significantly shaped juristic and judicial interpretation in
Islamic law, both mirroring and expanding the foundational sources of Islamic law.
1.3 Extrinsic sources: procedural and societal norms

Not all canons come directly from Islamic law’s textual or interpretive sources, even in cases
in which the tradition maintains that they otherwise should. This section sketches a few of
the extratextual sources of Islamic legal canons, and thus of Islamic law.
1.3.1 Judicial practice: precedents and procedures

Judges and jurists expressed many precedents and procedures in Islamic law through le-
gal canons elaborated through judicial practice, common-law style. For instance, the
central-most organizing principle for classical sharı̄ʿah courts is the evidence canon, allocating
burdens of proof: ‘the claimant has the burden of proof, and the respondent may swear
an oath of denial’.21 To be sure, virtually all jurists attribute this canon to the Prophet
224
uhammad (as part of a longer statement in one of the decisions from his own judicial
M
practice). But – as was typical for legal canons – various legal actors filled out the contours
of this skeletal rule through judicial practice and juristic deliberation in ways that far out-
stripped any explicit prophetic directive. To be sure, to say that judges and jurists elaborated
legal canons through judicial practice is not to say that the canons did not have roots in early
practice or even statements of the Prophet or other early authorities in the understanding of
these same canon-elaborating interpreters. But it is to say that they later came to conceive
of legal canons as drawing on elements from early Islamic history as well as elements arising
from the later history of Islamic legal interpretation and judicial practice.
In a similar vein, the single most important procedure for deciding criminal cases is the doubt
canon. This canon requiring judges to ‘avoid criminal punishments in cases of doubt’ emerged
and expanded through judicial practice as well.22 As detailed at length my book, Doubt in Islamic
Law, the doubt canon also reflected value-laden forms of judicial authority and morality.23 Judges
used the canon at times in opposition to, or in cooperation with, political rulers; and in some
instances the canon reflected moral anxieties about harsh punishments. For example, in an
eighth-century episode of its use, the prominent Abbasid judge and jurist Abū Yūsuf reportedly
relied on the doubt canon to absolve the caliph’s son of punishment for a sex crime.24 He also ad-
vised the caliph to apply the doubt canon more broadly in a treatise written to provide guidance
on taxation and other areas of public law over which the caliph wielded authority (including
criminal law).25 Like many procedural canons, the doubt canon was not known as a hadith during
the founding period, but rather it became a hadith text in the eyes of later jurists keen on adducing
textual supports for their claims. The doubt canon was nevertheless authoritative as a basis for
deciding cases of criminal law and changed dynamicallyn throughout Islam’s history.26
All of these canons proved central to the definition and construction of early Islamic law
and procedure.27 What is important to note is that, regardless of textualist claims, the mean-
ing and application of these canons, and thus the meaning and application of the Islamic law
of procedure, often came from common law-like judicial practice.
1.3.2 Practical principles: presumptions and governance norms

Within the first two centuries of Islam’s advent, the small community formed during the Proph-
et’s time quickly spread from Medina to towns in places as far-flung as Iraq, Iran and Central
Asia to the east, and as far as Andalusia and Sicily to the west. As new cases and controversies
arose, so did legal canons suited to serve the changing needs of a rapidly expanding community.
H․ anafı̄ jurists led the development of legal canons literature.28 Abū H ․ anı̄fa’s disciple
Muh․ ammad al-Shaybānı̄, for example, announced that ‘every matter made permissible by
ownership or marriage cannot be made impermissible except by dissolution of ownership
or marriage’.29 His statement was a canon giving form to a general standard for determining
the law of social relations and transactions, and it aligned with a general presumption of permis-
sibility, stipulating that ‘transactions are presumed permissible’.30 Both of these formulas are
examples of reason-based presumptions used to render Islamic law operable, packaged in the
form of legal canons.
As another example, Abū Yūsuf, operating in the same H ․ anafı̄ circle, generated a le-
gal canon to allocate power between judicial and political authorities. This canon accorded
authority over ‘discretionary penalties to the caliph in proportion to the seriousness of
the crime or lack thereof ’, as determined by judges or jurists in individual cases. 31 During
the reign of the caliph Hārūn al-Rashı̄d in the eighth century, Abū Yūsuf had debated vigor-
ously with fellow H ․ anafı̄ jurists about the permissible scope of discretionary penalties. Some
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Intisar A. Rabb
of these jurists set the upper limit of punishment at less than the lowest fixed criminal law
penalty of 40 lashes, some at up to 75 lashes, and some at no cap all.32 Abū Yūsuf ’s canon
merely represented his stance on the issue. The canon did not itself resolve the debate with a
rule, but rather, it provided judges and jurists with a standard to address problems of punish-
ment in novel, individual cases.33 Abū Yūsuf ’s statement is a good example of a governance
canon – a principle by which he as a jurist allocates power among Islam’s rather diffuse insti-
tutional actors. On its face, the canon confers power on the political authorities to determine
the extent of discretionary punishments. But the jurist generating and applying the canon has
assumed the power to make that very power-allocating determination.34
The founding figures from the other schools of law – Sunni and Shiʿi schools alike – developed
myriad other legal canons based on the practical needs of adjudication. The legal treatises writ-
ten by Shāfiʿı̄, Mālik, Abū H
․ anı̄fa’s associates, and Ibn H
․ anbal, as well as Abū Dāwūd, and all of
their disciples are replete with legal canons. For instance, Shāfiʿı̄’s Kitāb al-Umm includes 30–50
legal canons, and Mālik includes a sizeable number in his Muwat․․taʾ.35 Similarly, legal canons are
abundant in early Shiʿi law, especially from collections of reports and notebooks attributed to
the disciples of the Prophet as well as to ʿAlı̄, Jaʿfar al-S․ādiq and other Imams.36 These works all
include several of the most widespread canons – such as the previously mentioned no harm canon,
the evidence canon and the doubt canon – which are thus on display as playing an instrumental role
in the definition and construction of Islamic law during its founding period.
1.3.3 External borrowing: regional and foreign law norms

In addition to legal canons that originated in judicial practice and practical need among the
Muslims of the H ․ ijāz, Iraq and surrounding lands, other canons may have had regional origins
in the Late Antique Near Eastern or Roman laws that governed before the people of the region
became ‘Muslim’.37 One such canon is the paternity canon, which assigns paternity to a husband
for offspring from marriages in the following formulation: ‘the child belongs to the [marital]
bed: al-walad li-l-firāsh’. The meaning and origin of this Islamic canon are much debated, but
it correlates with a well-known Roman canon: ‘pate rest quem iustae nuptiae demonstrant: The
father is he who is married to the mother’.38 Joseph Schacht, a leading scholar of Islamic law as
a relatively new field for early 20th-century America and Europe, hypothesized that the correla-
tion between the two canons (he calls them ‘legal maxims’ – following earlier, now displaced,
usage in English-language scholarship on Roman law alongside E nglish and American law39)
implied causation and concluded that Muslims borrowed the canon from Roman law.40 In so
saying, he ignited heated scholarly debate on the possible origins of this ‘Islamic’ canon. Some
scholars argued that Schacht’s theory of Roman law-borrowing was unlikely, even if formally
possible.41 Others suggested that the Islamic version of the canon originated in pre-Islamic
Arabian law or came from a Jewish law principle in the Babylonian Talmud.42 Perhaps most
notably, one scholar asserted that the canon was sui generis ‘Islamic’, on the grounds that it
deliberately opposed pre-Islamic Arab norms for paternity disputes.43 Notwithstanding correla-
tions between the Islamic paternity canon and others, it was not Jewish or Roman law norms
that would have been circulating in seventh-century Mecca, which was rather isolated. In-
stead, he demonstrates that Arab norms were circulating, where judges evaluated physiognomy
rather than marriage to determine paternity.44 The Islamic norms came to oppose the Arab
ones.45 To this day, scholars debating the issue have not arrived at a definitive conclusion about
the origins of Islam’s paternity canon. However, the debates confirm that jurists used the canon
during the first century of Islam’s history and that (as with the doubt canon) they later regarded it
as a hadith – attributing it to the Prophet likely to bolster its authority and use as a legal canon.
226
It stands to reason that some Islamic legal canons originated in local norms. That much is
consistent with other features of law and governance now regarded as Islamic. For example,
other historians have identified governance structures that Islamic law absorbed as the em-
pire spread.46 They have also highlighted various judicial rulings and juristic opinions that
are only explained by the weight that local customs bore on the construction of and diver-
sity within Islamic law. In that vein, they have identified arguments internal to Islamic law
that support the use of custom in resolving questions of Islamic law – in fact best expressed
through a universal custom canon: ‘custom has legal authority’.47 Yet to determine when and
from where Islamic law may have borrowed specific legal canons from Roman, Sassanian or
Near Eastern norms requires more work.48
Canons that come from various types of legal reasoning and from other extratextual sources
serve as gap-filling presumptions, tie-breakers, or clear statement rules – all designed to
guide interpretation when the text runs out.49 This first section has classified these canons
according to their textual and extratextual origins, whether explicit or implicit. The next
section classifies them according to their functions.
2 Major categories of Islamic legal canons

Once Islamic legal canons were freely and widely circulating during Islam’s early founding
period, jurists began to collect them as a separate (third) genre of Islamic law, beginning
around the fourth/tenth century.50 They classified these legal canons according to three
broad categories: interpretive, substantive and universal. In coming up with these categories,
they relied on the organization of the two existing, well-recognized genres of Islamic law:
jurisprudence (us․ūl al-fiqh), according to which they identified a set of interpretive canons, and
substantive law ( fiqh), according to which they identified a set of substantive canons. To that
two-part classification, they added five universal canons, which they designated as a set of
agreed-upon, overarching principles or values derived inductively by examining the spirit of
Islamic law on the whole as drawn from the aggregate rulings.
Recent scholarship on Islamic legal canons follows these same traditional divisions, more
or less.51 An example is the treatment of Muh․ ammad S․idqı̄ al-Būrnū, who has compiled the
most extensive encyclopedia of legal canons in Sunni law. He divides canons roughly into
these same categories – interpretive, substantive and universal. In line with some strands of
earlier scholarship, he sub-divides the substantive canons into universal, general and specific.
Exceptionally, he further develops his own classification of canons with respect to their
sources, to which I have appended labels in parentheses for ease of reference:
1) canons that restate foundational texts (textual-source canons);

2) canons restating legal principles purportedly based on consensus or formal legal reason-
ing (interpretive-source canons);
3) canons restating legal principles derived by means of equitable principles such as istih․ sān,
is․․tilāh, istis․․h āb (equity or extratextual-source canons).52
Left uncategorized by scholars of interpretation and legal canons are a number of procedural
and other principles that feature in medieval Islamic legal literature but that have been not
fully assessed in modern literature. Assessing these uncategorized canons is essential to out-
lining the full range and functions of canons in Islamic law, particularly in light of evolving
theories of interpretation in comparative legal theory more generally.53
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Intisar A. Rabb
My approach seeks to outline a comprehensive classification of Islamic legal canons that

incorporates the traditional categories and adds new ones to capture previously uncategorized
canons. To that end, I classify Islamic legal canons according to their sources, applications and
functions, historically.54 Specifically, I assess traditional and contemporary treatments of Islamic
legal canons by category and function, and inform that assessment with comparative insights
from statutory interpretation theory developed in recent American law literature on the func-
tion of canons. In deference to traditional Islamic law treatments, I first present substantive
canons and interpretive canons, following the classical model’s internal structure and that of most
contemporary scholars writing on the subject. That is, like Burnū, Burūjirdı̄ and other scholars
who follow the classical divisions, I organize the Islamic legal canons according to the bi-partite
division of Islamic law into substantive rulings ( fiqh) [substantive canons] and interpretive rules
(us․ūl al-fiqh) [interpretive canons]. Also following their practice, I append the universal canons to
the category of substantive canons, and assess the interpretive canons with respect to their source
and function into textual canons, source-preference canons and extratextual canons. I then divide the
remaining canons that fall outside of the two main classical categories by institutional function,
classifying them in the terms of new categories as procedural, governance or structural canons.
This functional analysis is where my treatment diverges from existing treatments. I com-
bine insights from recently developed theories of statutory interpretation with classical treat-
ments of Islamic legal interpretation to outline a fuller account of the form and function of
Islamic legal canons. Until recently, scholarship on legal canons was insufficiently theorized
to allow for accurate or precise understandings of what canons were doing in American law, or
rather the ends to which legal actors understand and deploy them – from judges to executive
and congressional actors – as presented in their own decisions, legislation and rule-making, and
self-conscious assessments through interviews and scholarly writing. Scholarship over the past
40 years and increasingly so in the past ten years, however, has grown to identify and debate
the various functions that canons perform. This fairly sophisticated and growing scholarship on
statutory interpretation in US law invites a more sophisticated engagement in Islamic law. Ap-
plying insights from that literature to Islamic legal literature, my principal argument is that, in
addition to encapsulating substantive rulings and policies of classical Islamic law, Islamic legal
canons – like American legal canons – performed both interpretive and institutional power-
allocating functions in ways that express identifiable structural and value-commitments in
various Islamic contexts, even though the origins and institutional settings are quite different.
The new categories that I propose do not change the content or operation of Islamic le-
gal canons. Rather, these categories allow us to better classify and assess them, functionally,
expanding on the existing accounts articulated in the traditional sources of Islamic law for
jurists, judges and executive-administrative actors as they changed over time.
2.1 Substantive canons: universal, general, specific

Substantive canons elaborate basic substantive principles of law as concise restatements that
function as guidance to judges and jurists in the form of presumptions, tie-breakers or
clear statement rules to aid in the interpretation and application of rulings in major areas of
Islamic law. These canons often reflect aggregated legal rulings and thus value judgements
about privacy, property, social morality and the like. In addition, these canons are drawn
from both foundational texts and societal norms as understood by early Muslim jurists and
judges.55 The jurists writing about the legal canons as a genre divided them into three types:
(1) a small set of universal canons said to apply to all of Islamic law, almost as policy propositions;
228
(2) a larger set of thousands of general canons that have wide application but that tolerate some
exceptions (and thus include a subset of limited ( juzʾı̄) legal canons that nevertheless are
general enough in scope to include in this category);
(3) even more specific canons that apply to particular subject areas of law with a more limited
scope.
2.1.1 Universal legal canons (qawāʿid fiqhiyya kulliyya)

Muslim jurists typically identified this set of five canons on which all legal schools agree,
both Sunni and Shiʿi, as of universal application:56
(1) Harm is to be removed: al-d․arar yuzāl.

( 2) Custom is legally authoritative: al-ʿāda muh․ akkima [or: muh․ akkama].
(3) Hardship requires accommodation [of strict legal rules]: al-mashaqqa tajlibu al-taysı̄r.
(4) Certainty is not superseded by doubt: al-yaqı̄n lā yazūlu bi-l-shakk.
(5) Acts are to be evaluated according to their purposes: al-umūr bi-maqās․idihā.57
Rather than directly resolving cases, these canons tend to encapsulate the presumed purpose
or spirit of the law, in ways distinct from discussions of the five so-called universal objec-
tives (maqās․id al-sharı̄ʿa) of Islamic law.58 The two concepts are often confused.59 Historically,
Muslim jurists have treated the five universal canons as broad interpretive rules, similar to mod-
ern statements of statutory purpose or policy, meant to guide or constrain judicial interpreta-
tion in choosing between conflicting or ambiguous Islamic legal rulings for particular cases.
They derived these canons inductively, from an aggregate view of legal rulings elaborated
during the founding period. Thereafter, these jurists sought to apply these canons to most
areas of law, and to deductively elaborate general principles to construct new legal rulings.
By contrast, they discussed the five universal objectives as broad ethical values. They similarly
derived these objectives from reasoned deliberation on the corpus of Islamic law, but did so in
a more far-ranging way. To be sure, the five universal objectives initially emerged specifically
from reflections on Islam’s criminal laws, as jurists extracted a set of public values to explain
or justify the ends that Islam’s harsh criminal punishments were meant to serve.60 Yet, these
same jurists historically treated these universal objectives more as philosophical norms that
explained rather than guided the general thrust of Islamic law.61 That is, they treated universal
objectives more in the realm of legal philosophy, one step removed from the legal interpre-
tation to which substantive legal canons more directly applied. Unlike the universal canons,
the universal objectives were ideal for explaining legal rulings and judicial decisions retro-
spectively but were inapplicable or unenforceable as a basis for crafting or challenging either.62
That said, the two sets of principles, universal canons and universal objectives, converge on
a single expression that some medieval jurists held was the principle that underlies all of the
Sharı̄ʿah, and that several modern jurists have suggested be used to evaluate and reform
Islamic law.63 Islamic law, and the canons and objectives that express it, were to serve an
overarching purpose of promoting human welfare.64
2.1.2 General legal canons (qawāʿid fiqhiyya [juzʾiyya])

A large set of principles, ranging in the thousands,65 form the bulk of Islam’s substantive legal
canons. These canons often restate settled doctrines of law in various subject areas of Islamic
law, including ritual law, commercial transactions and criminal law. They also mirror the
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Intisar A. Rabb
two types of legal rulings in Islamic law: declaratory rulings (ah ․ kām wad․ʿiyya) and injunctive
rulings (ah․ kām taklı̄fiyya).
Canons restating declaratory legal rulings address the validity or legal status of a partic-
ular act, allowing a judge or individual to determine whether an act is either permissible or
of neutral value, or whether instead it falls on a scale of valid, defective or invalid/void – as
applied to the proper way to perform prayer or to fast in ritual law, or to form a contract
or conclude a sale in commercial law. An example of a canon that restates a ritual law-
declaratory legal ruling concerns the validity of ritual-completion (qāʿidat al-farāgh). It spec-
ifies that prayer, ablution or other ritual acts are to be deemed valid once completed, even
if there was doubt about whether each component was accurately or adequately performed.
This canon helps direct an individual legal agent’s attention to ritual performance with a
focus on the intention rather than the technicalities and encourages that agent or his associ-
ates to avoid continuously second-guessing the validity or method of performing religious
rites.66 A commercial law example, along similar lines, is the severability canon, specifying that
‘a defective condition does not void a contract’.67
Canons restating injunctive legal rulings address the legal classification of a particular act
or duty along the scale of obligatory, encouraged, permissible (legal), discouraged, and impermissible
or prohibited (illegal). An example of a canon that restates a ritual law-injunctive legal ruling is
the intoxicant canon, stating that ‘every intoxicant is prohibited’.68 Another example of a re-
statement of a commercial law-injunctive legal ruling is the limited-goods sale canon, stating
that ‘everything good that the law discourages eating, it discourages buying and selling’.69
In my review of canons historically, I find that these canons often reflect the societal
values, social attitudes and regional preferences of scholars elaborating particular areas or
schools of law. Furthermore, many of these canons are only enforceable to the extent to
which a local authority or judge deploys them. Notably, not all of these canons are considered
subjects of law on modern, secular definitions. The canons related to ritual law or ethical
norms (such as fair treatment of parents), for example, may be called ‘religion canons’, and
are typically individual-regarding and unenforceable by legal actors. But I include them here
because Muslims jurists included them in the corpus of Islamic law and its legal canons, and
moreover, because they very much considered them ‘law’ in the sense that they originated
with a divine Legislator and, in Muslims’ understanding, carry the potential for reward and
punishment – if not this-worldly, then other-worldly.70
2.2.3 Specific legal canons (dawābit fiqhiyya, us ūl71)

˙ ˙ ˙
A related set of subject-specific substantive legal canons or simply specific canons include restatements
and presumptions of more limited and sometimes disputed scope than the general substantive
legal canons above. Many of these specific canons often qualify the general canons. And many
of them are often subject to intra-school and inter-school contestation. One scholar distin-
guishes the general canons from specific canons by defining the latter as rules that are ‘limited
and constrained, whether by a general principle, a definition, mention of a measure, specifica-
tion of specific categories, conditions, legal causes [to which it applies], or other limitations’.72
Examples are plentiful. One example has been mentioned before:73 the paternity canon,
which applies narrowly to a specific issue of family law and stipulates that ‘the child be-
longs to the [marital] bed: al-walad li-l-firāsh’, that is, that paternity is assigned based on the
known marital relationship of the mother of a child notwithstanding an unknown or con-
tested father.74 Judges could use this canon to make determinations about paternity, from
which would flow judicial rulings on child custody, inheritance and other issues. An example
230
of a specific substantive canon that modifies a general substantive canon is the corollary to the
well-known commercial law canon stating that ‘Muslims [are to] honor contractual stipula-
tions: al-muslimūn ʿinda shurūt․ihim’. This general canon for interpreting contracts is modified
by a specific canon clarifying that a contractual condition is valid only if it does not go against
the Qurʾan or Sunna. An example of a contested specific canon has to do with the property law
principle stating that ‘whoever destroys property is liable for its replacement: man atlafa shayʾan
fa-ʿalayh ․damānuh’. Most schools of law agree on the validity of this canon.75 But note that it
violates an early H ․ anafı̄ ruling against liability for destruction of property that structured to
confer purely charitable or public benefit: ʿadam ․damān al-manāfiʿ.76 Another disputed canon
had to do with the legal status of slave women: were they in a type of marital relationship with
their masters? Whereas the textual sources stipulate consent to effect this type of relationship,
some early jurists and most later jurists ignored the textual rule and presumed consent, and thus
assumed that a marital relation existed to render sexual relations between masters and slaves
licit.77 Falling in the latter camp, the famous Judge Shurayh ․ decided a case relying on the
contested canon that the sale of a slave woman effects her divorce.78 Betraying the tenuous nature
of the canon, this same judge is said to also have once ruled on the basis of the related canon
specifying that marriage is in the hands of the master, and divorce in the hands of the slave.79
Two general notes bear mention about the form and function of these substantive le-
gal canons. First, like the general substantive canons, the specific substantive canons often
reflect the societal values, social attitudes and regional preferences of scholars elaborating
particular areas of Islamic law within their chosen school or within their particular area of
subject-m atter of expertise. Second, and importantly, substantive canons in one area of law
often operate alongside different substantive canons in other areas of law, both general and
specific. For instance, medieval Muslim judges sometimes invoked the family law paternity
canon alongside the criminal law doubt canon. In some instances, the juxtaposition of these
two canons resulted in judicial avoidance of punishments for a husband’s unproven and du-
bious allegations of adultery against his pregnant wife. That is, when deploying both canons,
judges concluded that, even though a husband might accuse his wife of marital infidelity,
without certain proof of such infidelity, the paternity canon bound the judges to ascribing
paternity to the husband and the doubt canon directed them to avoid punishment against the
wife.80 In this case, use of the canons perhaps counter-intuitively tended towards fewer im-
positions of legal duties or punishments, and often left less room for judges to intervene in the
rights of individual legal agents. More generally, a judge’s selection of multiple canons guided
interpretation even though it did not always constrain or determine it.
2.2 Interpretive canons

Interpretive canons guide judges and jurists on how to interpret foundational texts when
devising legal rulings (ah․ kām) that might be included in a fiqh treatise, as well as on how
to interpret the law and facts when issuing opinions on novel legal questions in response to
petitions or (fatwās) via decisions in court cases. Unlike substantive canons, which jurists
sometimes direct ordinary lay people to use in guiding their actions, interpretive canons are
specifically designed to guide legal experts on formulating scholarly opinions and rulings
in their move from general jurisprudence to substantive law.81
Interpretive canons cover what may be called textual canons (linguistic rules for how to
interpret texts), source-preference canons (source-specific principles governing how to weight
different types of foundational texts in instances of potential conflict), and extrinsic canons
(presumptions for how to rule in cases of silence). Examples of each follow.
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Intisar A. Rabb
2.2.1 Textual canons

Of the interpretive canons, textual canons instruct jurists and judges on how to interpret Islam’s
foundational texts (Qurʾan and Sunna – which, recall, may include an expansive definition
of hadith reports that countenanced changes over time) to derive the ‘ordinary meaning’ or
‘objectified intent’,82 based on common-sense rules of Arabic grammar and style. For exam-
ple, there is the literal meaning canon (read: ordinary meaning, in my view) instructing judges
to adopt the literal [or ordinary] meaning over the figurative unless there is an indication otherwise.83
Such canons can be informed by competing, or more accurately, qualifying canons. As
suggested by the literal meaning canon itself, the general import of a legal text or statement is to
be qualified when there is cause to diverge from the literal (or ordinary) meaning in particular
areas of law, such as contract law or the law of oaths. An example is a subsidiary principle to the
universal canon on the authoritativeness of custom that is itself a specific canon:84 literal meaning
is superseded by customary norms.85 For example, if someone swears an oath that he will never ‘set
foot in’ a particular person’s house, and then only technically sets his foot in that house without
actually entering, he will not be liable for performing an act of expiation that Islamic ritual
law would otherwise require for breaking an oath. This is because, customarily, the expression
‘set foot in’ means actually entering a place and presumably staying for some time, so the law
attends to that ordinary, customary meaning over the literal meaning of the statement.86 As
another example, someone renting a house is held to the default, implied conditions and rights
of doing so, even if those conditions are not explicitly stipulated in a contract. This is, again,
goes according to custom that gives cause for diverging from the text or for interpreting the
text to make sense where it is silent.87
These canons reflect classical Arabic linguistics governing grammar and customary usage.
These linguistics rules, in form, were – like legal canons – elaborated during the founding period
and further codified in the fourth and fifth centuries in works of jurisprudence and legal canons.88
2.2.2 Source-preference canons

Also among the interpretive canons are source-preference canons. These canons specify how
judges and jurists should choose among multiple and/or conflicting sources addressing the
same legal issue. In other words, these canons suggest how to weight different types of
sources, such as the canons privileging foundational texts over interpretive rules,89 custom over con-
tract90 and the first-in-time opinion over another equally valid opinion.91
Such canons help guide the judge or jurist’s task of interpretation by providing rules of
thumb for considering a hierarchy of sources given the wide interpretative discretion they
wield in the frequent absence of text or, alternatively, the presence of multiple or conflicting
texts. The canons’ attempt to guide or constrain discretion reflects the jurists’ aspirational
values of divine legislative supremacy, while at the same time, they reveal the prominent role
of custom and other extratextual sources of decision-making in Islamic law.92
For example, custom can sometimes supersede the text according to some jurists. To be
sure, most jurists maintained that every jurist and judge was obliged to privilege text over cus-
tom. But Abū Yūsuf disagreed, espousing the view that the doctrine of istih ․ sān (equity) really
meant accommodating custom in ways that made it necessary to sometimes reject text (tark al-
nas․․s). Far from seeing this notion as extra-legal, he considered the incorporation of equity into
Islamic law a recognition of custom’s role in constructing it, and explained that istih ․sān rulings
were both legal and justified precisely ‘because custom was considered’.93 The compilers of
the Mecelle adopted this position, emphasizing legal canons that carve out a significant role for
custom and that accommodate changes in the law based on changes in time and place.94
232
2.2.3 Extrinsic-source canons

The third in the category of interpretive canons is a set of extrinsic canons – canons that ref-
erence extratextual sources, ones extrinsic to the traditional theory of Islamic legal sources.
This set of canons refers to presumptions and other principles of interpretation in matters
where the foundational texts – with their expansive meaning, including the Qurʾan and
Sunna as well as consensus, textual canons and source-preference canons that are all consid-
ered hadith – yield absurd results or no result at all. In Sunni law, extrinsic canons also in-
corporate jurisprudential ‘sources’ in the lexicon of authors of us․ūl al-fiqh that reflect what we
might call equitable principles, such as, istis․lāh․, istih․sān and istis․․hāb, as well as, again, custom.95
Applications of these canons are also plentiful. The universal legal canon specifying that
custom has legal authority and the related canon, stipulating that there is no bar on changes in legal
rulings with changes in the times often produced different legal rulings where jurists believed that
their interpretations, by reference to these canons together, would better give effect to the
law than strict adherence to the text.96 Consider, for example, that the Qurʾan specifies eight
categories of zakāt recipients – the once-mandatory poll tax that typically now operates like a
tithing that is religiously obligated on individual Muslims.97 One of these categories, muʾallafat
qulūbuhim, included people to whom the Prophet reportedly gave money to attract them to
Islam – those who needed more material incentive. Despite the explicit Qurʾanic text, the
second caliph ʿUmar cancelled out this category, reasoning that, because Islam had success-
fully been established as a religion and a political community, the law’s rationale and thus the
law itself – albeit specified in the text of the Qurʾan – no longer applied.98 Two centuries later,
Abū Yūsuf also announced changes to the rule of zakāt. He disagreed with the practice of giv-
ing each category of recipients one eighth of the zakāt funds, based on his determination that
government workers should receive reasonable amounts rather than pre-mandated (Qur’anic)
amounts that may or may not meet their needs. He thus wrote in his treatise on tax law, Kitāb
al-Kharāj that the decision as to the precise amount was to be determined by the caliph rather
than the jurists interpreting the foundational texts, as it had been before.99
The category of extrinsic-source canons also includes general legal presumptions in both
Sunni and Shiʿi law that operate as default rules in cases of silence of the law. Sunni law, for
example, specifies a presumption of permissibility for transactions, and a presumption of impermis-
sibility for devotional acts or in matters of sexual ethics.100 Likewise, Shiʿi law includes a set
of procedural presumptions designed to guide jurists in instances of doubt about a legal ruling.101
Like Sunni jurists, Shiʿi jurists maintain that these presumptions, or canons, are borne from
an aggregation of the texts about which they have deliberated to extract a general principle.
They further acknowledge that such rational presumptions are part and parcel of the disci-
pline of jurisprudence (us․ūl al-fiqh), but nevertheless treat them as legal canons because of the
way they function as default rules in cases of textual silence or ambiguity.102
As default rules, these presumptions-as-canons reflect a particular ‘theology of delega-
tion’.103 Those who accept them, based as they are more on reason and logical deductions
than on text, believe that, while God is the supreme Legislator, jurists have the authority,
discretion and duty to interpret Islamic texts. For them, these canons serve gap-filling or
tie-breaking functions when the text runs out. The jurists applying them believe themselves
to be agents of the law endowed with the knowledge and training to consider and resolve
complex questions of law and ethics, and thus to be in derogation of these God-given facul-
ties by not exercising reason. In their view, morality is outlined by the divine Lawgiver, and
its parameters in the world are defined by reasoned deliberation and sometimes applications
of Islamic law. By contrast, those who reject these canons, including some H ․ anbalı̄s as well
as most Z ․ āhirı̄ and Akhbārı̄ jurists, adopt a doctrine of non-delegation. Believing that God
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Intisar A. Rabb
is the sole Legislator, and that legislation starts and stops with a limited set of foundational
texts, they maintain that God designated a ruling for every situation in the world. They
further believe that law and morality are determined by existing rules elaborated within
Islam’s foundational texts and that the job of the technically trained jurist or hadith scholar
is to discover them.104
The importance of these theories to the entire concept of Islamic law – that of divine leg-
islative supremacy and of the theology of delegation – cannot be understated.105 They go to both
structure and interpretation of Islamic law, and form the epicentre of the explosive disagree-
ments from which extend the fault lines dividing jurists in camps that diverge on major ap-
proaches to interpretation (in debates between textualists versus purposivists) and according
to concepts of the role of reason in defining Islamic law (in debates on law and morality).
2.3 Procedural canons: evidence and judicial proceedings

A third set of canons are well-recognized principles that often emerged from judicial practice
to form the Islamic law of procedure: the procedural canons. These canons are typically undif-
ferentiated from the substantive legal canons in much of the existing literature on Islamic legal
canons. But it is clear that these canons were historically subject to separate treatment among
judges and jurists deploying them and in judicial manuals, even when often combined with
other rulings in works of substantive law or jurisprudence. As a consequence of their rather
rough classification historically, procedural canons are even more understudied than their
larger set of Islamic legal canons, even though they are essential to the operation and full un-
derstanding Islamic law.
These canons comprise three types: evidentiary canons that regulate the laws of proof,
judicial procedure canons that advise litigants on how to properly bring cases and that advise
judges on how to adjudicate them, and judicial conduct canons governing judges’ conduct and
their institutional relationship to other authorities. Some of these canons, like the doubt canon,
implicate all three types.
2.3.1 Evidentiary canons

Evidentiary canons are sometimes connected to a handful of foundational texts instructing
judges on the evidence required for initiating or proving claims and on the allocation of
burdens of proof for deciding cases. At the same time, these canons incorporate the far more
prevalent phenomenon of judge-made evidentiary procedures: extratextual presumptions
devised to guide judicial decision-making where text-based guides are lacking.
The best-known text-based evidentiary canon is the principle placing the burden of proof
on the plaintiff: the burden of proof is on the claimant and the respondent may swear an oath of de-
nial.106 A supplementary canon is rooted in customary usage is the presumption that written
evidence is as probative as oral testimony.107 A list of related presumptions establish that the status
quo or any judicial determination remains in effect until and unless some evidence establishes
the contrary:
• The default (presumption) is to preserve the status quo [unless evidence is presented to establish the
contrary].108
• The legal determination established at one point in time remains in effect so long as there is no
evidence establishing the contrary.109
• A judge is to issue decisions that affirm the preexisting status of a claim [unless evidence is presented
to the contrary].110
234
These stipulations are limited by another presumption specifying that a prerequisite to rec-
ognizing the status quo or existing legal status of an act as valid is that it not be harmful.111
Lest these presumptions-as-canons leave the impression that Muslim jurists seek through
Islamic law to maintain the status quo, exclusively, other evidentiary canon indicate accom-
modation of legal change.112 One evidentiary canon specifies that rights once duly established
become the new status quo that the law then protects, whoever possesses a right or claim has
exclusive rights to its enjoyment, until probative evidence establishes the contrary.113 Other evidentiary
canons sometimes create mechanisms to expand judicial discretion – again, against main-
taining the status quo. The doubt canon is a case in point. This canon – in addition to being a
substantive canon governing applications of criminal law and an interpretive canon govern-
ing definitions of it – is a principle recognized in every school, and it became a tool by which
judges and jurists asserted the authority to define doubt, and therefore substantive criminal
law as well as the laws of evidence and procedure for criminal law.114
Evidentiary canons could also be the procedural manifestation of specific canons unique
to a particular legal school. Consider, for example, the contested canon reflecting the H ․ anafı̄
principle permitting court translation without verification – stipulating that ‘a translator’s
statements are to be accepted’.115 Consider, too, the disputed canon that a judge may rule on
the basis of a single witness if he knows of the witness’s reliability.116 Finally, consider the
presumptions permitting certain types of circumstantial evidence as bases for valid legal rul-
ings.117 For instance, in some schools of thought, if someone leaves an empty house afraid and
confused, with a blood-stained knife in hand, and someone else enters the house and sees a
slaughtered person in the house, there is little doubt that the one who exited was the killer.
The law need not speculate on alternate or far-fetched possibilities (ih․timālāt wahmiyya), such
as the idea that the person might have committed suicide.118 This ruling is of course in direct
contradiction to classical applications of the doubt canon, which prohibited guilty determina-
tions as a matter of law on similar facts. In fact Ibn al-Qayyim and other jurists recounted
an early ‘case’ with almost precisely those hypothetical facts to construct and justify the
doubt canon itself.119 Such divergent canons dovetailed with a judicial push among H ․ anafı̄s
and Shāfiʿı̄s to permit reliance on judicial knowledge, or ‘judicial notice’, drawing on other
disputed legal canons among early Muslim jurists.120 The divergence between these canons
shows that they are sometimes school- or jurist-specific, and signal the extent to which evi-
dentiary canons can be discretion-conferring.
Still other evidentiary canons may constrain discretion, directing judges on how to
make a determination in cases of conflicting evidence. For example, one civil law eviden-
tiary canon stipulates that contradictory evidence does not suffice as probative.121 Thus, for ex-
ample, Islamic law contains the generally agreed-upon rule, that if two witnesses provide
and then retract their testimony, neither instance of testimony is probative.122 (Notably,
this canon did not apply to most criminal contexts, which was governed by the doubt
canon – which liberally permitted retractions, on the basis of which criminal liability was
dropped.)123
All these canons reflect changing societal norms and customs about proof, social cohe-
sion and the scope of judicial discretion. The last of these elements is bound by the differing
parameters of interpretive leeway afforded by a particular jurist or school’s theology of dele-
gation, as noted above: how much authority did the divine Legislator delegate to qualified
human agents to decide matters of law and ethics? In debates about presumptions and other
extrinsic-source canons of Islamic law, judges and jurists frequently defined the parameters
of these larger questions only implicitly as they exercised what they perceived to be the scope
of their own discretion to resolve cases and to assign legal or moral culpability elsewhere.124
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Intisar A. Rabb
2.3.2 Judicial procedure canons

Judicial procedure canons address rules governing the courts or litigants’ appearances before judges,
including issues of standing, competence, or the sufficiency of a case or controversy to entitle
a person with a grievance to petition a court in the first place. These canons also guide deter-
minations of personal status and accompanying rights and obligations – where distinctions in
classical Islamic law often revolved around identitarian features of a person’s background such
as gender, minority, competence, religion, freedom, lineage, and even wealth or class.
Unlike the evidentiary canons, most of the judicial procedure canons are not codified in the
legal canons literature even though jurists frequently discuss and apply them in their opinions.
Examples include rules that stipulate different outcomes based on the status of the legal subject:
• Canons governing non-Muslim and women legal actors in medieval Islamic lands: A
Muslim will not be given the death penalty for the death of a non-Muslim;125 non-Muslim testi-
mony is accepted for cases involving non-Muslims;126 and canons reflecting rulings stipulating
two women’s testimony for that of one man.127
• Canons governing slave law: The rule of retaliation does not apply to slaves.128
• A canon governing status hierarchies: the elite-leniency canon – Instructing judges to over-
look the misdemeanors of high-status offenders.129
While Islamic law in theory espoused values of egalitarianism, justice and human welfare,
these canons reflect many early attitudes suggesting that proponents of Islamic law histor-
ically adopted competing values. In particular, these divergent canons suggest that status
hierarchy, gender discrimination, and religion-based rights or personal jurisdiction were to a
certain extent uncontroversial norms in medieval and early modern Islamic societies.
2.3.3 Judicial conduct canons

Judicial conduct canons detail rules governing judges themselves in circumstances that require
them to self-regulate, such as controversies giving rise to recusal, the need to consult expert
jurists when uncertain about the applicable legal ruling, and appropriate mechanisms for
a judge or his deputies to resolve cases and execute judgments. For instance, early judges
and jurists articulated various principles prohibiting judges from deciding cases when angry,
requiring judges to consult expert jurists to clarify ambiguous substantive law rulings, and
enumerating behaviour for which a judge could be removed from his position ‘for cause’.130
This area is perhaps the least well developed in the legal canons literature. Most of these
canons are found in the judicial conduct literature (adab al-qād․ı̄), judicial biographies (akhbār
al-qud․āt) and in historical chronicles.
2.4 Governance canons

Governance canons are principles that reflect and encapsulate in some measure the varied the-
ories of Islamic public law and political-legal authority (siyāsa sharʿiyya). They address such
matters as the authority to set and enforce rules of criminal law, taxation, war and the like. In
American law, governance canons ‘apportion institutional responsibilities, where the Court
sets forth the duties of umpires (courts) and other players (agencies and legislators) in the on-
going elaboration of statutory schemes’.131 In Islamic law, these canons apportion institutional
responsibilities among the principal institutions and actors in medieval Muslim societies:
courts, judges, and caliphs. They also create avenues for issuing pardons or equitable judg-
ments outside of the four corners of Islamic law’s textual sources, and they sometimes impose
236
constraints on one institution in favour of another on the basis of core values of morality,
theology of delegation, or legislative supremacy.
Examples include the following:
• Canons allowing delegation of legal authority to the political ruler to resolve contested
issues of law (for instance, the canon stipulating that it is for the imam to determine the extent
of discretionary penalties in proportion to the severity of the crime).132
• Canons laying down default rules to resolve cases where there is no legal ruling or con-
tractual agreement to resolve a claim otherwise (for instance, the canon specifying that
whoever dies without a will and no heirs, his money goes to the public treasury);133 and
• Canons imposing power constraints on the political ruler vis-à-vis individual rights (for
instance, the canons stating that the imam may not take anything from the possession of an in-
dividual unless there is a well-known entitlement to do so,134 and that [government] relations with
the people should be based on the public interest135).
Later iterations of a new set of governance canons arose in the Ottoman Empire, when state-
appointed jurists attempted to create a new school of Islamic law that would merge classical
Islamic law with Ottoman statutes or kanuns. Ahmet Cevdet Paşa, the leader of the project that
resulted in the Mecelle (the Ottoman Commercial Code) – which began with a codification
of 99 canons followed by individual articles that drew on Islamic commercial law – was the
unsuccessful proponent of this attempt.136 New governance canons also appear in contempo-
rary legislation in Muslim majority countries. Contemporary scholars studying these types of
canons call them legislative canons (qawāʿid qānūniyya) and define them as ‘the principles of social
organization that explain the relationship of the state to the people’.137 In all three periods,
(early) medieval/classical, Ottoman and modern, it is notable that these governance canons
are typically derived from local political-legal norms, not from Islam’s foundational texts.138
2.5 Structural canons

A final category is structural canons. This term is a label for general principles or legal canons
that both reflect and construct the political-institutional structures in early Islamic contexts. The
foundational texts designate no specific religious, constitutional or judicial structures. Nor
do those texts govern the separation of or interplay of relations between actors within those
institutions. Instead, they presage a feature of interpretation that Professor William Eskridge
and other scholars have observed even in modern contexts with constitutions that do establish
(typically three) major branches of government along with a separation of powers: namely, that
American judges deploy legal canons and use interpretation more broadly to allocate power.139
Similarly, I argue that Muslim judges and jurists historically deployed structural canons to allocate
power between the institutions that they simultaneously helped construct. This arrangement featured
in medieval Islamic law even more so than in modern contexts, such as that of the United
States or Muslim-majority constitutional countries, where state-law foundational texts (in
the form of constitutions and basic laws) purport to define institutions and therefore provide
a textual baseline.
The examples from Islamic history are plentiful, and relate to every major institution –
courts, caliphs and jurists – and they reflect the unique features of Islamic law, from its legal
pluralism to its diffused structures. One example will suffice to show how jurists deployed
structural canons to bolster the authority of the courts, given Islamic law’s radical legal plu-
ralism among the jurists. According to what we might call a finality canon, a decision based on
judicial interpretation cannot be reversed simply by a different interpretation.140 For example, if a judge
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Intisar A. Rabb
has adjudicated a dispute on the basis of his own interpretation, that is, in the absence of a clear
text, and then retires, another judge looking into the matter who comes to a different conclu-
sion may not reverse the first judge’s ruling. Provided that the initial decision does not violate
any of the rules governing valid interpretation, a mere difference of opinion on the part of the
new judge cannot justify a reversal. This canon, often attributed in Sunni literature to the sec-
ond caliph, ʿUmar, is backed by judicial practice. Jurists justifying this canon argue that, in his
capacity as a judge, ʿUmar reportedly ruled in ways contrary to his predecessor, Abū Bakr, but
did not attempt to declare the first caliph’s ruling invalid because he understood that his own
interpretation was not necessarily better and that both were equally valid.141 Contemporary
Islamic law scholars reflecting on such episodes explain that this canon creates a notion of judi-
cial finality. If one rule was allowed to cancel another, there would be nothing to stop a second
reversal or infinite number of reversals, and thus there would no stability or finality of judicial
decisions in Islamic law.142 In this way, medieval Muslim judges and jurists used legal canons to
define the powers of the courts and other institutions. That is, through interpretation generally
and the use of legal canons specifically, these legal actors both defined the power of varied legal
and governing institutions individually and allocated power among them collectively.
3 New directions for the study of Islamic legal canons

After a long period of largely neglecting the study of legal canons, Islamic law scholarship
recently has corrected course.143 Hossein Modarressi suggested almost three decades ago that
studying Islamic law without legal canons might actually block avenues for ‘grasping the
nature of Islamic law and legal interpretation both historically and in the contemporary
world’.144 I agree. In the time since, the literature on legal canons has vastly expanded, in
the Muslim world and otherwise.145 But much is still to be done. Below, I detail areas where
Islamic legal canons are ripe for study and meaningful contribution to fields of legal history,
legal theory and comparative law.
3.1 Islamic legal history: medieval and modern

Although conventional accounts of Islamic law give legal canons short shrift, this essay illustrates
that canons played a prominent role in various aspects of Islamic law’s theory and practice, among
jurists, judges, teachers and more. Jurists frequently incorporated legal canons into their works
of substantive law and jurisprudence. Through legal canons, they offered restatements of settled
or disputed legal policies, provided rationales for their opinions, and derived new rulings for
novel cases.146 Judges also used legal canons in courts. Through regular use of the legal canons,
they resolved cases, helped allocate power and constructed an Islamic law of procedure. Teachers
regularly appealed to legal canons to instruct students of Islamic law in traditional educational
settings on the major presumptions and precepts of Sharı̄ʿah as well as how jurists constructed
them.147 All of these features make the genre of Islamic legal canons ripe for study towards un-
covering more robust definitions of Islamic law and legal history, medieval and modern.
Most existing scholarship on legal canons, including my own, has focused on particular
aspects of their development in medieval history. The bulk of the attention has been given
to the ways in which legal canons make up the Islamic laws of procedure and precedent (for
example, the evidence canon) or express certain values or customary norms (for instance, the
paternity canon or custom canon) that encapsulated certain Islamic legal rulings historically.148
Yet, it is no understatement to say that Islamic law cannot be fully understood without
understanding the essential features and functions of legal canons. Incorporating legal canons
238
into the study of Islamic law means recasting Sharı̄ʿah as both substance and procedure, and
it points to ways in which aspects of both were contingent on changing institutional and
cultural contexts. To that end, this section sketches the modern history of Islamic legal
canons, and briefly considers related developments in law, politics and scholarship in the
majority-Muslim world today.
From a legal historical perspective, the modern history of Islamic legal canons was largely
defined by the 19th- and 20th-century codification and constitutionalization of Islamic law,
as first symbolized by the 1869 Mecelle. These efforts emerged from a period of colonialism
or reform driven by encounters of global powers with the majority-Muslim world (primarily
in the Middle East and North Africa, South and Southeast Asia, and sub-Saharan Africa).
Each development had effects on the local conceptualization and application of Islamic
law. Codification limited the dynamic tradition of the jurists and changed the system of legal
education. Constitutionalism incorporated Islamic law as state law, which often balanced
against liberal values and structural norms that differed from the public values and gover-
nance structures in pre-modern Islamic societies. And continued foreign influence had the
unintended effect of inflating the appeal of a version of classical Islamic law that bore little
knowledge of or resemblance to the historical doctrines and practice.149 American and Eu-
ropean dominance evoked a sense of nostalgia among many legal and political actors among
20th-century Muslim-majority countries that had recently become independent. These ac-
tors sought to return to an imagined golden era when Muslims were sovereign over their
own affairs and lived peaceably, prospering under a system undergirded by classical Islamic
legal norms. Often, these actors sought a return by incorporating what has been dubbed
‘Sharı̄ʿah clauses’ into their new constitutions and Sharı̄ʿah-compliant criminal, commercial
and family law codes. The clauses incorporated Islamic law as state law without defining it,
and the codes attempted to codify historical features of Islam’s substantive laws without un-
derstanding them.150 All largely ignored the legal canons.
From a political and governance perspective, the failure to consider the history and use of
legal canons in modern conceptions of Islamic law can help explain some of the problems of law
and politics in the modern Muslim world. Among many of those agitating for a return to the
past, Islamic law amounts to a medieval snapshot that is all substance, no procedure. Elsewhere,
I have critiqued this resurgence of Islamic law in politics based on originalist visions of Sharı̄ʿah
that cite the authority of the founding period but in fact exhibit poor understandings of both
law and history from that period and afterwards.151 Such nostalgic modernists and Islamists are
often neither lawyers nor historians. They tend to be unfamiliar with Islamic law beyond basic
texts, snapshots of which do not include informed perspectives on Islamic law as it developed
with respect to (a) particular institutional structures and medieval social mores, (b) substance
as it interacted with and was partially defined by procedure, and (c) all three genres of Islamic
law – substantive law, jurisprudence and legal canons. Familiarity with each are necessary to
inform internal-practical as well as external-historical conceptions of Islamic law.
From the perspective of the community of Islamic law scholars, the last century-and-a-
half has seen increased scholarly attention to legal canons in direct contrast to its decline in
the state. Jurists aware of the existence and value of legal canons have increasingly empha-
sized their importance for understanding Islamic law historically and perhaps for adjusting
classical Islamic law to contemporary times. Through their writings, these canons-conscious
scholars have made a particularly full-throated defence of the legal canons over the last
40 years or so. In Sunni circles, most modern developments have tended to emerge from
Mālikı̄ and H ․ anbalı̄ law.152 More recently, Shāfiʿı̄s and H
․ anafı̄s have turned to the study of
legal canons as well.153 In Shiʿi circles, contemporary jurists have started to re-examine the
239
Intisar A. Rabb
legal canons highlighted in the 18th and 19th centuries (with the return of the rationalist
approaches to legal interpretation) with increased vigour in the 20th and 21st centuries.154
And other contemporary scholarship has recently featured studies on legal canons literature
from Ibād․ ı̄s and other schools of Islamic law, including attention to intra- and inter-school
comparison within Islamic law, and intellectual and social histories of Islamic law.155
With renewed interest in Islamic law for both scholarly and public purposes, perhaps the
history of Islamic legal canons has become as relevant again as it is essential to understand-
ing Islamic law. Over the past decade, certain state institutions in Iran, Egypt and a handful
of other Muslim-majority countries have paid close attention to legal canons, sometimes
including them in codes and court decisions. In several more Muslim-majority countries,
legal education has re-incorporated legal canons in the study of Islamic law. In almost every
country, whether Muslim-majority or not, legal canons play a sizeable role in jurists’ opin-
ions (fatwas) issued by non-state-affiliated experts on Islamic law.156 These developments
underscore the continued scholarly relevance and reach of the history of Islamic legal canons.
3.2 Islamic legal theory: interpretation and legal change

In Islamic legal theory, legal canons and the jurists who deployed them historically per-
formed varied functions depending on the particular juristic or scholarly approach. From the
standpoint of jurists who use legal canons in their rulings (from an internal perspective), the
canons bear both descriptive functions and prescriptive functions. That is, jurists use them
sometimes to identify and describe past rulings in order to justify old laws and sometimes as
guides to help them generate new laws. From the standpoint of legal history and academic
theories of Islamic law and society (from an external perspective), legal canons can also reveal
the extent to which jurists and judges, reflecting changing societal norms, played a role in
defining the content and structures of Islamic law through interpretation, dynamically.
Descriptively, legal canons will be instrumental for developing positive theories of Islamic
law and legal process. Legal canons expose scholars to various subjects of Islamic law, and
organize individual rulings under general principles that obviate the rather impossible task
of assessing every single ruling in what has been called the excessively casuistic nature of
Islamic law.157 The canons provide keys for exploring the social, political and jurisprudential
rationales behind the opinions of judges, muftis and other legal arbiters that often produce
legal change.158 And the canons provide a common legal grammar for comparing different in-
terpretive processes and outcomes attached to the varied types of legal canons present across
Islam’s schools of law – whether agreed upon as consensus canons, or disputed as contested
canons.159 Appraising canons according to these functions thus suggests these three areas of
promising research for better devising descriptive theories of Islamic law, as discussed here.
Prescriptively, can Islamic legal canons provide tools not only for understanding Islamic
law descriptively but also for constructing it? In internal debates about Islamic law, this ques-
tion has been marked as one of the major questions facing both Sunni and Shiʿi legal theory
today.160 Sunni law adopts fairly conservative perspectives, typically limiting legal canons
to being tools only for describing Islamic law.161 But one scholar rightly concluded that the
descriptive view of legal canons was not a necessary feature of Sunni law. Instead, the author-
itativeness of legal canons to construct new rulings depends on their textual foundations and
a jurist’s theology of delegation, which in turn determine the allowable scope for accommo-
dating extratextual legal reasoning, gap-filling presumptions and changing cultural norms.
This scholar strongly advocated a rationalist approach to Islamic law on the grounds that
doing anything else would narrow its interpretive scope to the point of making the whole
240
enterprise static and unworkable.162 Indeed, the history of Sunni applications (if not theories)
of legal canons suggests that they had taken just such an approach: judges and jurists histori-
cally deployed legal canons to address new questions of Islamic law and to construct various
aspects of it, while giving the appearance of following old precedents through citations of
authoritative legal canons that could connect the old to the new.163
In Shiʿi law, a more law-generative orientation towards legal canons is more widespread,
as is the theology of broad delegation to permit wide scope for rational interpretations of law.
As in Sunni law, legal canons have always been used to address novel questions and thereby
construct Shiʿi law. Contemporary jurists simply now acknowledge that fact. For example,
Nās․ir Makārim Shı̄rāzı̄ insists that legal canons ‘constitute methods of constructing legal
rules in all subjects of law, and [that] substantive law is not just derived from, but also based
on them’.164 A state-backed committee convened in Iran to collect legal canons declared that
jurisprudence itself can be conceived of as collecting legal canons for the purpose of ‘guiding
jurists in the interpretive process for constructing [new] legal rulings in practical settings,
where it is not enough to simply rely upon the [classical] legal ruling (h ․ukm sharʿı̄)’.165 And
Mus․․t afā Muh․ aqqiq Dāmād argued that legal canons can serve as interpretive tools for discov-
ering or, in modern parlance, legislating, new laws.166
Scholars invested in both descriptive and prescriptive, or law-generative approaches to
Islamic law have raised a series of questions about legal canons for theories of Islamic law.
Consider, for example, the following questions:
(1) Are legal canons on past matters conclusive, or can (and should) jurists derive new legal
canons to address modern circumstances or apply old principles to new realities?
(2) What were the areas of convergence or exchange in the context of legal canons in the
development of Islamic law between Sunnis and Shiʿis?
( 3) Why did the field of Shiʿi legal canons develop later than the field of Sunni legal canons,
as a genre?167
Answers to these questions provide valuable entry points to the study of legal canons in
Islamic legal theory.
Finally, for both descriptive and normative appraisals of legal canons, it may be worth also
considering what is missing from the existing classifications and studies. For instance, is there
a new set of modern canons missing from the classical corpus of legal canons – beyond the
categories I have tried to organized and detail above? Bujnūrdı̄, for instance, identifies a justice
canon (qāʿidat al-ʿadāla), an ease canon (qāʿidat al-suhūla) and a freedom canon (qāʿidat al-h
․uriyya) as
principles ‘with medieval origins that are of increasing relevance to modern society, but for
some reason are missing from the oeuvre of legal canons literature’.168 Murtad․ ā Mut․ahharı̄
complains that the failure to renew the canons corpus with attention to new canons has led
to the ‘ossification of society-relevant deliberation amongst Muslim jurists’.169 These schol-
ars argue that further examining Islamic legal canons as principles for dynamic Islamic legal
interpretation can facilitate new definitions and applications of Islamic law to better fit the
changing contemporary world.170
3.3 Comparative law and interpretation: three puzzles

In closing, it is worth noting the surprising convergence that has emerged over the past few
decades among scholars of Islamic law and scholars of American law on the significance of
legal canons to legal interpretation, and their use in the construction of both legal rules and
241
Intisar A. Rabb
institutions. Scholars in both systems see legal canons as a way to inform and perhaps reform
the process of interpretation and the legal institutions that they help produce.
When comparing the two, there are several puzzles. One puzzle is whether they are
comparable in the first place, given the different origins of each – one secular, the other
religious.171 A related puzzle is whether and to what extent canons help judges and scholars
not only interpret the law in very different constitutional structures but also allocate power
to the varied institutions in each.172 A third puzzle – the ‘dueling canons’ problem – is one of
the most interesting, and thus worth examining here more closely as an illustrative example
of how comparative law might shed light on both systems.
The ‘dueling canons’ problem proceeds from the question whether canons guide or con-
strain interpretation, or are instead conflicting principles that provide convenient tools in
the hands of a wily judge intent on imposing his own preferences in the law. Perceiving
legal canons on the latter view, some opponents in the American context have sought to
excise them from courts on the claim that they are incoherent and inconsistent.173 Most
prominently, Karl Llewellyn initiated a realist attack on legal canons starting in the 1930s,
on claims that canons were indeed tools for judges to impose their own preferences on the
law. As evidence, he argued that, for every canon, there was a counter-canon. This fact, he
argued, allowed judges to rely on virtually any canon to bolster their own preferences with a
claim that they were constrained by the law when in fact they were not.174
The realist attack stymied debate on the canons for years in the academy.175 When debate
did return in the 1990s, political scientists and behavioural economists took up the anti-
canons mantle, seeing canons as contrary to the complex realities of legislation and interpre-
tation and thus overly restrictive.176
To be sure, the canons never fully disappeared from the courts,177 and today, even in the
academy, legal canons have recently come back with a vengeance. Among the voluminous
scholarship on them, one pair of books stands out. The late Supreme Court Justice Antonin
Scalia and Bryan Garner, author of Black’s Law Dictionary, produced a handbook in 2012 called
Reading Law. In it, they advise judges and scholars on how to interpret American law based en-
tirely on a set of 57 legal canons. In response, Professor William Eskridge, a leading scholar of
interpretation and legal canons, published his own handbook in 2016, called Interpreting Law. He
describes rather than prescribes, but similarly organizes his work around legal canons and iden-
tifies their outsized role in shaping American law – from the interpretation of legal texts to the
structuring of legal institutions. These authors diverge in their conception of the authority del-
egated to judges to interpret law, as faithful agents of the legislature or of the constitutional text.
In Islamic law, opponents to canons – who, like American textualists, promoted textual
approaches to Islamic law – attacked legal canons, albeit on almost opposite grounds. Amer-
ican proponents of canons tended to be textualists. But Muslim opponents of canons tended
to be strict textualists, along with Salafı̄-traditionists and other ‘conservatives’ who advo-
cate adherence to the texts of laws drawn only from Islam’s founding period. All of these
groups share in a doctrine that stands against any ‘theology of delegation’ – whereby God,
as supreme Legislator, delegates interpretive authority to humans over law.178 Rejecting the
notion of delegated interpretive authority, these groups require jurists to adhere to the plain
meaning of the texts, even if doing so yields absurd or incoherent results. This stance against
canons comes from their notice of the same problem of which Karl Llewellyn complained:
that for every canon there was a countercanon.
Muslim canons-proponents responded that the idea of a ‘dueling canons’ problem in Is-
lamic law was a false problem. Some canons were of general import and were qualified by
more situation-specific canons – such as those allowing for exceptions on the grounds of
242
necessity (d․arūra) or some other relevant legal cause (qayd, ʿilla muʾaththira).179 This feature
of legal canons is a matter of logic and induction, they say, which applies to law and for
that matter to any field outside of law. If a scientist announces a general inductive rule that
mammals move their lower jaw when chewing but observes that the rule does not apply to
crocodiles, his observation does not invalidate the general rule. Rather the general statement
elaborates a general principle that holds true in most general cases, even if exceptions can be
found to qualify it in limited cases.180
In short, Muslim canons-proponents argue that, for a legal canon to be valid and coherent
does not require that it cover all cases. Instead, it requires that it be generally applicable in
ordinary circumstances and that it apply with respect to the body of other legal canons and
rulings, in a way that accords appropriate weight and hierarchy to each. So-called ‘dueling
canons’ are not a matter of a competition between two equals, but they are a matter of proper
categorization, hierarchical organization and prioritization of different canons as applied to
a particular set of facts181 – which is a task for the astute jurist to organize. The goal is to do
so with some measure of coherence and attention to justice or moral values, approximating
what Ronald Dworkin has called law as integrity.182
The literature on Islamic legal canons has elaborated lengthy discussions on the priority
of legal canons in response to the ‘dueling canons’ problem, and in this respect may have
key insights to inform or compare with American scholarship on legal canons. All said, both
traditions of legal canons deserve further study.
Notes
1 See, e.g., Yaʿqūb b. ʿAbd al-Wahhāb Bā H ․ usayn, al-Qawāʿid, al-fiqhiyya: al-Mabādiʾ, al-muqawwimāt,
al-mas․ādir, al-dalı̄liyya, al-tat․awwur (Riyadh: Maktabat al-Rushd, 1998), 22: al-amr al-kullı̄ yant․abiq
ʿalayhi juzʾiyyāt kathı̄ra tufham ah․kāmuhā minhā (quoting Tāj al-Dı̄n ibn al-Subkı̄).
2 For a brief history, see my Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic
Criminal Law (Cambridge: Cambridge University Press, 2015), 348–57.
3 For instance, Sayyid Muh․ ammad H ․ asan Bujnūrdı̄, al-Qawāʿid al-fiqhiyya (Qum, Iran: al-Hādı̄,
1419/[1998]), 15.
4 See Rabb, Doubt in Islamic Law, 355 (‘scholars of Islamic legal maxims have yet to develop a com-
prehensive understanding of the field as it operated historically or in modern times, nor have they
categorized legal maxims in ways that take account of their full spread’).
5 For further discussion of and references to the foundational sources in Sunni and Shiʿi law, see
Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd edn (Cambridge: Islamic Texts
Society, 2003), 16–55, 58–60; Hossein Modarressi, An Introduction to Shı̄ʿı̄ Law (London: Ithaca
Press, 1984).
6 Roy Mottahedeh, Introduction to Lessons in Islamic Jurisprudence (Oxford: Oneworld, 2003), 1.
7 Qurʾan, 5:1 (Yā ayyuhā ʾlladhı̄na, āmanū awfū bi-l-ʿuqūd).
8 For discussion, see, e.g., Muh․ ammad S․idqı̄ b. Ah․ mad al-Būrnū, Mawsūʿat al-qawāʿid al-fiqhiyya
( Beirut: n.p., 1416/[1995]), 1:38.
9 See Mecelle, art. 29 (lā ․darar wa-lā ․dirār). For brief discussion, see, for instance, Joseph Schacht,
O rigins of Muhammadan Jurisprudence (Oxford: Oxford University Press, 1950), 183 (doubting that
the canon is a prophetic report); S․ubh․ ı̄ Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ al-Islāmı̄, 5th edn (Beirut:
Dār al-ʿIlm li-l-Malāyyı̄n, 1980), 237–39; Makārim-Shı̄rāzı̄, Qawāʿid, 16, 25; Būrnū, Mawsūʿa,
1:32. Of the dozens of monographs on this widely cited canon, see, for example, Muh․ ammad
Bāqir al-S․adr, Lā ․darar wa-lā ․dirār (Qum, Iran: Dār al-S․ādiqı̄n, 2000); ʿAlı̄ al-H ․ usaynı̄ al-Sı̄stānı̄,
Qāʿidat lā ․darar wa-lā ․dirār (Beirut: Dār al-Muʾarrikh al-ʿArabı̄, 1994); Ī hāb H ․ amdı̄ Ghayth,
al-Qāʿida al-dhahabiyya f ı̄ al-muʿāmalāt al-Islāmiyya: lā ․darar wa-lā ․dirār ʿinda al-H
․ āfiz
․ Ibn Rajab
al-H․ anbalı̄ (Cairo: Dār al-Kitāb al-ʿArabı̄, 1990).
10 See Būrnū, Mawsūʿa, 1:38–39 (al-muslimūn ʿinda shurūt․ihim, with references to the hadith literature).
11 See generally my Doubt in Islamic Law, esp. 4–5, with an introduction to the doubt canon.
12 Ibid.
243
Intisar A. Rabb
13 Ibid., 48–66.
14 For a demonstration of the process of canonization and subsequent textualization, together with
discussion of changing notions of Sunna, see my Doubt in Islamic Law, esp. 48–59, and ‘Islamic
L egal Maxims as Substantive Canons of Construction: H ․ udūd-Avoidance in Cases of Doubt,’
Islamic Law and Society 17 (2010), 63–125.
15 See, e.g., Būrnū, Mawsūʿa, 1:39 (lā ijtihād maʿa al-nas․․s); Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 225–26 (lā
masāgha li-l-ijtihād fı̄ mawrid al-nas․․s); Muhammad ʿAlı̄ Tashkı̄rı̄ et al. (eds), al-Qawāʿid, al-us․ūliyya
wa-l-fiqhiyya (Qum, Iran: al-Lajna al-ʿIlmiyya fı̄ al-H ․ awza al-Dı̄niyya bi-Qum, 2004), 425–75
(taqdı̄m al-nas․․s ʿalā al-z ․kı̄m al-nas․․s ʿalā al-z
․āhir and tah ․āhir).
16 Notably, juristic ‘consensus’ differed from time to time and community to community. Often a
matter of local or time-bound agreement, consensus canons sometimes converged across Sunni
and Shiʿi law (such as the no harm or plain meaning canons), but they often reflected the differing
agreements of groups of Sunni jurists for Sunni law and of Shiʿi jurists for Shiʿi law. This is a
matter worth elaborating elsewhere.
17 See Kamali, Jurisprudence, 469–500 (discussing, among other things, ijtihād as based on anal-
ogy (qiyās) and inclusive of necessity (d ․arūra), presumptions of continuity (istis․․hāb), and ‘equity’
(istih․sān, istis․lāh
․)). For a discussions of istih
․sān and other equitable principles as equity in Islamic
law, see Sherman Jackson, ‘Literalism, Empiricism, and Induction: Apprehending and Concretiz-
ing Islamic Law’s Maqâsid Al-Sharîʿah in the Modern World’, Michigan State Law Review (2006),
1476; Mohammad Fadel, ‘Istih․sān is Nine-tenths of the Law: The Puzzling Relationship of Us․ūl
to Furūʿ in the Mālikı̄ Madhhab’, Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill,
2002), 161–76. For a discussion on the varied functions of and meanings of ‘equity’ historically
and comparatively, and specifically of two such functions that align with my reference to medieval
Islamic usage – namely ‘corrective’ interpretation that goes beyond the declarative function of
ordinary law and ‘moderating’ rulings to mitigate the harshness of law – see María José Falcón y
Tella, Equity and Law (Leiden: Brill, 2008), xix and passim.
18 This framework emerged in the 18th century in the us․ūlı̄-jurisprudential tradition of Murtad․ ā
al-Ans․ārı̄, which displaced akhbārı̄-textualism and now dominates Shiʿi law. See Modarressi,
Introduction to Shı̄ʿı̄ Law, 57–8. On the equitable features mentioned (us․ūl ʿamaliyya, sı̄ra ʿuqalāʾiyya
and other amārāt), see Muh․ ammad Bāqir al-S․adr, Lessons in Islamic Jurisprudence, trans. Roy Mot-
tahedeh (Oxford: Oneworld Publications, 2003).
19 See Būrnū, Mawsūʿa, 1:40 (al-ʿāda muh ․akkima [or muh․akkama]), noting that the authoritativeness
of custom similarly has many textual and extratextual sources, though no single text dictates
it. He cites, as examples, Q. 7:199 (‘Pardon people and decide on the basis of custom, and turn
away from ignorant people: khudhi al-ʿafwa wa-ʾmur bi-l-ʿurfi wa-aʿrid․ ʿan al-jāhilı̄n’), Q. 4:19 (‘Deal
with [people] according to customary norms: wa-ʿāshirūhunna bi-l-maʿrūf ’), and the hadith report,
in Bukhārı̄, said to apply to a woman seeking maintenance for a divorce (‘Take what suffices
you and your son according to customary norms’). See also Khaleel Mohammad, ‘The Islamic
Law M axims’, Islamic Studies 44 (2005), 206–7; Mohammad Hashim Kamali, ‘Legal Maxims
and Other Genres of Literature in Islamic Jurisprudence’, Arab Law Quarterly 20 (2006), 87–90;
Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 261–72.
20 See Būrnū, Mawsūʿa, 1:40–1 (iʿmāl al-kalām awlā min ihmālih); Mah ․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 233
(same). Būrnū makes this canon, rather exceptionally, a universal legal canon, noting that it has no
single textual source but that it resonates with Q. 50:18 (mā yalfiz ․u min qawlin illā ladayhi raqı̄bun
ʿatı̄d), and the hadith report (inna Allāh taʿālā ʿinda kull lisān qāʾil: fa-l-yattiqi Allāha ʿabd wa-l-yanz ․ur
mā yaqūl).
21 See Būrnū, Mawsūʿa, 1:43, 3:133 (noting that the canon was reported as a part of a hadith as
included in the collections of all six canonical Sunni hadith collectors: Bukhārı̄, Muslim, Abū
Dāwūd, Tirmidhı̄, Nasāʾı̄, and Ibn Mājah); cf. Makārim-Shı̄rāzı̄, Qawāʿid, 18–19. For discussion,
see Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 329–34; Bujnūrdı̄, Qawāʿid, 3:69–108; Mus․․t afā Ah․ mad Zarqā,
Sharh․ al-qawa—ʿid al-fiqhiyya, ed. ʿAbd al-Sattā r Abu Ghudda (Damascus: Dar al-Qalam, 1989)
[see p 254 for correct accents] 400–1; Ah․ mad al-Zarqāʾ, Sharh․ al-qawāʿid al-fiqhiyya (Beirut: Dār
al-Gharb al-Islāmı̄, 1983), 304–22.
22 See my Doubt in Islamic Law, 48–66.
23 Ibid., 69–132.
24 Ibid., 89–90.
25 Abū Yūsuf Yaʿqūb b. Ibrāhı̄m, Kitāb al-kharāj, ed. Muh․ ammad Ibrāhı̄m al-Bannāʾ (Cairo: Dār
al-Is․lāh․ , 1981), 303–5.
244
26 See my Doubt in Islamic Law, 49–66 (tracing the canonization, textualization and generalized
interpretation of the doubt canon); and my ‘Islamic Legal Maxims as Substantive Canons of
Construction’, 63–125 (describing the transformation of the doubt canon into a prophetic hadith).
27 See generally my Doubt in Islamic Law.
28 See Būrnū, Mawsūʿa, 1:68–9 (surmising that H ․ anafı̄s preceded others schools in the articulation of
legal canons because of the expansive nature of their substantive law rulings, based on the rational
principles that their founders articulated in their interpretations of law – for which they were
often lambasted by subsequent Shāfiʿı̄s).
29 See Būrnū, Mawsūʿa, 1:56 (citing Kitāb al-As․l: kull amr lā yah․ill illā bi-milk aw nikāh ․ fa-innahu lā
yuh․arram bi-shayʾ ․hattā yunqad
․ al-nikāh․ wa-l-milk).
30 See, e.g., Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 220 (discussing al-as․l al-ibāh․a); Makārim-Shı̄rāzı̄, Qawāʿid,
22 (same); Kamali, ‘Legal Maxims’, 84 (al-as․l fı̄ al-ashyāʾ al-ibāh․a). This canon applies to non-ritual
law and non-personal status law, but not, typically, to rituals and matters of sexual ethics (for
which the presumption was flipped). For further discussion, see below, note 100.
31 See Būrnū, Mawsūʿa, 1:52 (citing Kitāb al-Kharāj: al-Taʿzı̄r ilā al-imām Imam ʿalā qadr ʿaz ․m al-jurm
wa-s․igharih).
32 Ibid.
33 Būrnū, Mawsūʿa, 1:56 (describing the use of legal canons to provide summary rationales for par-
ticular rulings and observing that: ‘It is clear that this method of giving rationales [for rulings] is
closest to what then became the process of designating canons that are found in the early centu-
ries’). On the distinction between standards and rules (and between principles and policies), see
the famous essay by Ronald Dworkin, ‘The Model of Rules’, University of Chicago Law Review 35
(1967), 22–3 and passim.
34 Cf. William N. Eskridge, Jr, Interpreting Law: A Primer of How to Read Statutes and the Constitution
(St Paul, MN: Foundation Press, 2016), 12 (defining governance canons as principles that, in
American law, ‘apportion institutional responsibilities, where the Court sets forth the duties of
umpires (courts) and other players (agencies and legislators) in the ongoing elaboration of statu-
tory schemes’). For further discussion, see below, note 111 and accompanying text.
35 For a detailed account for Sunni law, see Būrnū, Mawsūʿa, 1:50–65.
36 For discussion, see Mus․․t afā Muh․ aqqiq Dāmād, ‘Codification of Islamic Juridical Principles,’
H
․ ikmat 1 (1995), 98 (observing that ‘many of the general principles mentioned in Sunni sources,
are found, in an identical form, in the traditions transmitted from the Imāms of Imāmı̄ [Twelver]
Shı̄ʿism, some of which are narrated from the Prophet (s․) himself and some others drawn from the
direct teachings of the Imāms’.).
37 For an rich and critical discussion of these possibilities for the judiciary generally with reference to
papyrological and literary-historical sources (though not with specific comment on legal canons
that emerged from them), see Mathieu Tillier, L’Invention du cadi: La justice des Musulmans, des juifs
et des Chretiéns aux premiers siècles de l’Islam (Paris: Sorbonne, 2017), 14–18; idem, Les Cadis dʿIrāq
et l’etat Abbasside (132/750–334/945) (Damascus: IFPO, 2009), 64–83.
38 Both Ignaz Goldziher and Joseph Schacht, early on in Western studies of Islamic law, identified
the canon al-walad li-l-firāsh as the Arabic-Islamic version of the corresponding Roman law rule.
See Ignaz Goldziher, Muslim Studies, trans. C. R. Barber and S. M. Stern (New Brunswick, NJ:
Aldine, 2006), 1:164–90; Schacht, The Origins of Muhammadan Jurisprudence, 181–2; idem, ‘Foreign
Elements in Islamic Law’, Journal of Comparative Legislation and International Law 32 (1950), 135.
39 I have previously used this term, ‘legal maxims’, and it seems the preferred term among the handful
of historians writing on the subject in English – perhaps drawing from Schacht, himself perhaps
drawing from the common name for the Roman law principles of this type. However, an extensive
and growing literature of theories of interpretation developed in American law over the past few
decades elaborate on the notions of ‘canons of construction’ or simply ‘legal canons’ as an entire
field of interpretation, and has convinced me that these terms more accurately reflect the concep-
tual Islamic law analogs to qawāʿid fiqhiyya in contemporary English legal usage and theory. For
discussion among some of the leading theorists of interpretation and legal canons, see the various
works by William Eskridge, Abbe Gluck, Anita Krishnakumar, Karl Llewellyn, John Manning
and the late Justice Antonin Scalia, among others, cited below in notes 150–5 and passim.
40 Schacht, ‘Foreign Elements’, 135. See also Patricia Crone, Roman, Provincial and Islamic Law (Cam-
bridge: Cambridge University Press, 1987), 10 n. 96 (relying on Schacht).
41 See Crone, Roman, Provincial and Islamic Law, 9–11 (arguing that if rhetors transmitted R oman
knowledge, they likely did not convey legal principles as they were concerned more with
245
Intisar A. Rabb
argumentation than law, but nevertheless asserting that the early Arab-Islamic patronage system
called walāʾ had origins in Roman law); see also Harald Motzki, ‘The Mus․annaf of ʿAbd al-Razzāq
al-S․anʿānı̄ as a Source of Authentic Ah ․ādı̄th of the First Century A.H.’, Journal of Near Eastern
Studies 50 (1991), 19 (citing Patricia Crone, with agreement).
42 See Motzki, ‘The Mus․annaf of ʿAbd al-Razzāq al-S․anʿānı̄’, 19 (suggesting that the pre-Islamic
attribution to Aktham b. S․ayfı̄ is anachronistic and thus false, and that the Jewish law correlation
is not proven); see also Uri Rubin, ‘Al-Walad li-al-firāsh’, Studia Islamica 78 (1993), 5–26 (tracing
the history of the canon as a non-prophetic, possibly pre-Islamic, statement later back-attributed
to the Prophet).
43 See Motzki, ‘The Mus․annaf of ʿAbd al-Razzāq al-S․anʿānı̄’, 19.
44 On practices of physiognomy, using certain physical features to determine paternity, see Ron
Shaham, The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law (Chicago:
Chicago University Press, 2010).
45 See Motzki, ‘The Mus․annaf of ʿAbd al-Razzāq al-S․anʿānı̄’, 19; Wael Hallaq, Origins and Evolution
of Islamic Law (Cambridge: Cambridge University Press, 2005), 19–25.
46 See, e.g., Mathieu Tillier, Les Cadis dʿIrāq et l’etat Abbasside (132/750–334/945) (Damascus: Institut
Français du Proche-Orient, 2009), 64–83.
47 For discussion, see Mah ․mas․ānı̄, Falsafat al-tashrı̄ʿ, 261–72 (on the canon, al-ʿāda muh ․akkima [or muh․ak-
kama], and tah ․kı̄m al-ʿāda). See also Heinrichs, ‘K ․ hiyya,’ EI , ed. P. Bearman, T. Bianquis,
․ awāʿid Fı̄k
2
C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Brill, 2008); Kamali, ‘Legal Maxims’, 87–90;
Būrnū, Mawsūʿa, 1:40; Mohammad, ‘Islamic Law Maxims’, 194, 206–7 (defining the term ‘muh ․ak-
kama’ to signify that custom has persuasive rather than determinative or binding authority).
48 For suggestions to this effect, see Hallaq, Origins and Evolution of Islamic Law, 8–28 (for Near
Eastern Law); Crone, Roman Provincial and Islamic Law (for Roman Law); Mah․ mas․ānı̄, Falsafat
al-tashrı̄ʿ, 272–87 (for Roman law, Jewish law, and tribal and other local customs in Near Eastern
conquered lands).
49 For a discussion of and reference to literature detailing the distinctions between these categories
and functions of legal canons in American legal theory, see my ‘The Appellate Rule of Lenity’,
Harvard Law Review Forum 131 (2018), 192. Compare William N. Eskridge, Jr, Philip P. Frickey
and Elizabeth Garrett, Cases and Materials on Legislation, 3rd edn (St Paul, MN: Foundation Press,
2001), 850–1.
50 The history of Islamic legal canons unfolded over a series of stages. For discussion, see my forth-
coming article, ‘Interpreting Islamic Law’, discussing these stages as follows: (1) the early found-
ing period, when judges and jurists regularly deployed canons in the construction of Islamic law
(7th–10th centuries); (2) the late founding period, when jurists recorded these canons in treatises
devoted exclusively to them (10th–11th centuries); (3) a period of Sunni expansion and elabora-
tion of legal canons treatises (12th–mid-13th centuries); (4) the golden age of rapid expansion of
legal canons literature (mid-13th–16th centuries); (5) a period of Sunni decline, which accompa-
nied a wave of codification and constitutionalization (17th–19th centuries); (6) a period of Shiʿi
debate and reemergence (17th–19th centuries); and (7) the modern period of state decline but
juristic resurgence (20th century to the present).
51 See, Būrnū, Mawsūʿa, 1:32–5, dividing legal canons along three different axes: (1) according to
their degree of generality or specificity – into universal legal canons: al-qawāʿid al-kulliyya al-kubrā,
general legal canons: al-qawāʿid al-fiqhiyya [al-aghlabiyya] or majoritarian, specific legal canons:
․dawābit․ (pp. 32–5); (2) according to their relationship to the other two principal legal genres – into
interpretive legal canons: qawāʿid us․ūliyya and substantive legal canons: qawāʿid fiqhiyya (pp. 25–8);
and (3) according to their known sources – into textual sources (Qurʾan and hadith, pp. 36–9),
interpretive sources that rely on the interpretive sources (ijmāʿ and legal reasoning, pp. 39–40),
and interpretive sources derived from induction or general legal reasoning (pp. 40–1). The above
text simplifies these divisions.
52 For example, Nās․ir Makārim Shı̄rāzı̄ divides legal canons according to their scope of application
into universal and general legal canons (whereas the specific canons, ․dawābit․, may not be canons
at all in his view). He notes that all canons either apply to some subjects in substantive law, such
as the ‘the canon on liability and non-liability: qāʿidat mā yud ․man wa-mā lā yud․man’, which applies
to property and commercial law; or they apply to specific subjects of law that might encompass
all fiqh chapters, such as the canon of ‘no harm: qāʿidat lā ․darar’. Makārim-Shı̄rāzı̄, Qawāʿid, 23–4.
He further divides legal canons by subject matter: (1) general canons (al-qawāʿid al-ʿāmma) that
are non-subject matter-specific; (2) specific transactional law canons (related to a specific subject
246
within muʿāmalāt); (3) specific ritual law canons (related to a specific subject of ʿibādāt); (4) general
transactional law canons (related to muʿāmalāt, generally construed); and (5) evidentiary and pro-
cedural canons (used to connect real world rulings with an Islamic legal basis, such as the canon
stipulating the probativity of the claim of a person in possession of property with disputed owner-
ship: ․hujjiyyat qawl dhı̄ al-yad). Ibid., 26–7. Still others see some of these classifications, for example,
dividing qawāʿid from ․dawābit․ based on scope of application as unique to Sunni law or as ‘modern
innovations’ that cut against classical treatments. In that vein, the Committee for the Study of
Legal Canons in Iran concluded that a qāʿida is the same as a ․dābit․. See Lajnat ʿIlmiyya fı̄ al-H ․ awza
al-Dı̄niyya bi-Qum, al-Qawāʿid al-us․ūliyya wa-l-fiqhiyya, ed. Muhammad ʿAlı̄ al-Tashkı̄rı̄ et al.
(Qum: al-Majmaʿ al-ʿĀlamı̄ li-Taqrı̄ b Bayna al-Madhāhib al-Islāmiyya, 1425/2004), 1:8.
53 For a comparable division of American legal canons into categories of substantive, textual and
reference canons, and for the leading textualist and dynamic treatments of them, see respectively,
Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St Paul, MN:
Thompson/West, 2012); Eskridge, Interpreting Law.
54 Elsewhere, I provided a preliminary outline following the earlier attempts, on which the current
assessment expands for a more robust treatment. See my Doubt in Islamic Law, Appendix 3 ( ju-
risprudential canons, substantive canons and ‘other’ canons). Tracking the areas of law to which
a canon applies has several advantages: it tracks the classical bi-partite treatment of canons, it
adds new categories introduced by evolving statutory interpretation theory to identify previously
unrecognized categories and functions of early Islamic legal canons, and it thereby renders both
fields comparable to one another to aid in further study along lines of theory or application.
55 For comparative purposes, see the definition of substantive canons in American law in Eskridge,
‘The New Textualism’ and Normative Canons,” Columbia Law Review 113 (2013), 537 (‘Substan-
tive canons are presumptions, clear statement rules, or even super-strong clear statement rules
that reflect judicial value judgements drawn from the common law and from constitutional law
(created by judges), as well as from statutes themselves (as understood and interpreted by judges)’).
56 With some exceptions. For example, the early Shāfiʿı̄ scholar of legal canons, Qād․ ı̄ H ․ usayn,
counted only four canons as universal: all but the fifth canon on intention, which was apparently
added later. See Mah․ mas․ānı̄, Falsafat al-Tashrı̄ʿ, 327 (citing Tāj al-Dı̄n al-Subkı̄, in Bannāʾı̄’s Sharh․
and H ․ āshiya to Subkı̄’s Jamʿ al-jawāmiʿ, 2:383). Ibn Nujaym on the other hand emphasized a second
intention canon as his sixth. See Kamali, ‘Legal Maxims’, 94 (adding ‘no spiritual reward accrues
without intention: lā thawāb illā bi-l-niyya’). Būrnū considers a sixth canon against superfluity to
be universal: ‘giving effect to text is preferable to regarding it as superfluous: iʿmāl al-kalām awlā
min ihmālih’. See Būrnū, Qawāʿid, 1:40–1.
57 See, for example, Abu ʿAbd Allāh Muh․ ammad b. Muh․ ammad al-Maqqarı̄, Qawāʿid, ed. Ah․ -
mad b. ʿAbd Allāh b. H ․ amı̄d (Mecca, Saudi Arabia: Jāmiʿat Umm al-Qurā, n.d.), 198–212; al-
Fād․ il al-Miqdād al-Suyūrı̄, Nad․d, al-qawāʿid al-fiqhiyya ʿalā madhhab al-Imāmiyya, ed. ʿAbd al-Lat․ı̄ f
al-Kūhkamarı̄ Mah․ mūd al-Marʿashı̄ (Qum, Iran: Maktabat Āyat Allāh al-ʿUz․mā al-Marʿashı̄,
1403/1982–3), 90–114; Ibn Nujaym, al-Ashbāh wa-l-naz ․āʾir, ed. Muh․ ammad Mut․ı̄ʿ al-H ․ āfiz․ (Da-
mascus: Dār al-Fikr, 1983), 1:17–19; Muh․ ammad al-H ․ usayn Āl Kāshif al-Ghit․āʾ, Tah․rı̄r al-Majalla,
ed. Muh․ ammad Mahdı̄ al-Ās․ifı̄ and Muh․ ammad al-Sāʿidı̄ (Qum, Iran: al-Majmaʿ al-ʿĀlamı̄ li-l-
Taqrı̄ b Bayna al-Madhāhib al-Islāmiyya, 1422/2001–2), 1:129–32, 139–42, 153–6 (critical com-
mentary on Mecelle articles 2, 4, 17, 19 and 36). For other divisions, see, for example, Jalāl al-Dı̄n
al-Suyūt․ı̄, al-Ashbāh wa-l-naz ․āʾir, ed. Muh․ ammad al-Muʿtas․im biʾllāh al-Baghdādı̄ (Beirut: Dār
al-Kitāb al-ʿArabı̄, 1998), 35, 201, 299, 337; Makārim-Shı̄rāzı̄, al-Qawāʿid al-fiqhiyya, 1:26–7.
58 For recent works on maqās․id, see M. Khalid Masud, Islamic Legal Philosophy: A Study of Abū Ish․āq
al-Shāt․ibı̄’s Life and Thought (Delhi, India: International Islamic Publishers, 1989), Jasser Auda,
Maqās․id al-Sharı̄ʿah as Philosophy of Islamic Law: A Systems Approach (London: The International
Institute of Islamic Thought, 2008); Idris Nassery et al., eds., The Objectives of Islamic Law: The
Promises and Challenges of the Maqās․id al-Sharı̄ʿa (Lanham, MD: Lexington Books, 2018).
59 For example, one author categorizes legal canons as ‘part of the maqās․id genre’. Mohammed,
‘Islamic Law Maxims’, 194. In my view, this categorization does not accord with their historical
treatment.
60 For discussion, see my ‘The Islamic Rule of Lenity: Judicial Discretion and Legal Canons,’ Van-
derbilt Journal of Transnational Law 44, no. 5 (2011): 1299–1351, 1331–33.
61 See Mah ․ mas․ānı̄, Falsafat al-Tashrı̄ʿ, 219; Āl Kāshif al-Ghit․āʾ, Tah․rı̄r al-Majalla, 1:122–3.
62 For a similar assessment with respect to modern debates in Islamic law, see Jackson, ‘Maqâsid Al-
Sharîʿah in the Modern World’, 1476.
247
Intisar A. Rabb
63 For discussion of the ways in which some contemporary Muslim scholars and political leaders
reference the maqās․id as broad-based ethical tools for law reform, see David L. Johnson, ‘Maqās․id
al-Sharı̄ʿah: Epistemology and Hermeneutics of Muslim Theologies and Human Rights,’ Die Welt
des Islams 47 (2007), 149–87.
64 See Mah․ mas․ānı̄, Falsafat al-Tashrı̄ʿ, 219–20 (adding ‘avoiding harm’ to this short formulation
in noting that all five universal objectives are founded on the principle of maximizing benefit
and avoiding harm: mabniyya ʿalā jalb al-manāfiʿ li-l-nās wa-darʾ al-mafāsid) (citing, among others,
Ibn al-Qayyim: ‘Sharı̄ʿah is based on ․h ikam and mas․ālih․ al-ʿibād in this life and the next. It is all
aimed at justice, mercy, wisdom. Every matter that diverges from justice to oppression or from
mercy to its opposite or from benefit to harm, or from wisdom to ʿabath, is not Sharı̄ʿah, even
if it is called Sharı̄ʿah by interpretation (wa-in udkhilat fı̄hā bi-l-taʾwı̄l). Sharı̄ʿah is the justice of
God between people, his mercy between people’). Most interpretation-minded jurists agreed
on this point, though strict textualists, such as Z ․ āhirı̄ jurists, rejected it and other canons or
principles. For further discussion, see al-ʿIzz Ibn ʿAbd al-Salām (d. 660/1262), al-Qawāʿid
al-kubrā (also called Qawāʿid al-ah․ kām fı̄ mas․ālih․ al-anām, ed. Nazı̄ h Kamāl H ․ ammād and
ʿUthmān Jumuʿa D ․ umayriyya (Damascus: Dār al-Qalam, 2000), 1:5–6 and passim (iden-
tifying Islamic law’s overarching purpose as: tah․ qı̄q mas․ālih․ al-ʿibād); cf. Khaled Abou El
Fadl, Reasoning with God: Reclaiming Shariʿah in the Modern Age (London: Rowman and
Littlefield, 2014), xxxxii.
65 No one has counted the canons in the various schools. Khaleel Mohammad says they are in the
hundreds (‘Islamic Law Maxims’, 192), and the literature suggests that a combined count would
be much more. For example, the H ․ anafı̄ jurist Dabūsı̄ (d. 430/1039) had already listed 86 in his
Taʾsı̄s al-naz․ar in the 11th century; the later H ․ anafı̄ jurist Ibn H ․ amza al-H․ usaynı̄ (d. 1305/1887)
listed 251 in his Farāʾid al-bahiyya. The jurist ʿAbd al-Wahhāb al-Baghdādı̄ (d. 476/1083) in his
al-Majmūʿ wa-l-furūq discussed 96; Imāmı̄ scholar Muh․ ammad Kāz․im al-Mus․․t afawı̄ in his al-
Qawāʿid: miʾat qāʿida fiqhiyya maʿnan wa-madrakan wa-mawridan lists hundreds. Moreover, the recent
compendia collecting legal canons are multi-volume works collecting from dozens to thousands
of canons each. See, for example, Būrnū, Mawsūʿa (13 vols, with 3,250 unique canons); Tashkı̄rı̄
et al. (3 vols., with 290 canons), Qawāʿid (9 vols); Bujnūrdı̄, al-Qawāʿid al-fiqhiyya (7 volumes,
with 63 canons).
66 See Tashkı̄rı̄ et al., Qawāʿid, 11–12 (qāʿidat al-farāgh: kull ․salāt aw ʿamal shukka fı̄ ․sih․․hatih baʿd al-
farāgh minhu fa-huwa mah․kūm bi-l-s․ih
․․ha).
67 Bujnūrdı̄, Qawāʿid, 4:189 (al-shart․ al-fāsid laysa bi-mufsid li-l-ʿaqd).
68 Būrnū, Mawsūʿa, 38 (kull muskir ․harām). See also Bujnūrdı̄, Qawāʿid, 5:307 (kull muskir māʾiʿ bi-l-
as․āla fa-huwa najis).
69 Būrnū, Mawsūʿa, 58 (kull shayʾ kuriha akluh wa-l-intifāʿ bih ʿalā wajhin min al-wujūh, fa-shirāʾuh wa-
bayʿuh makrūh …).
70 On these categories from jurisprudence and the relationship between law and religion in Islamic
contexts, see Mottahedeh, Lessons in Islamic Jurisprudence, 2–4, 25–7.
71 Us․ūl has many meanings and has evolved over time. Aside from using us․ūl to signify the sources
or methods of Islamic jurisprudence, as in us․ūl al-fiqh, early Muslim jurists used the term to re-
fer to what later jurists labelled qawāʿid, ․dawābit․, ah․kām and other presumptions of law or even
theology. The best example is the list of varied sayings called us․ūl in Abū al-H ․ asan al-Karkhı̄’s
Us․ūl, published in Taʾsı̄s al-naz
․ar by Abū Zayd al-Dabūsı̄, ed. Mus․․t af ā Muh․ ammad al-Qabbānı̄
al-Dimashqı̄ (Beirut: Dār Ibn Zaydūn, n.d.). Karkhı̄’s book has recently been translated by Munir
Ahmad Mughal in Islamic Legal Maxims: Consisting of Al-Karkhi’s Al-‘Usul (n.p., Istinarah
Press, 1438/2017), 61–91 (to be used with caution). In addition, contemporary Shı̄ʿı̄ jurists use
the term to mean ‘procedural principles’ or ‘presumptions’. The most prominent elaboration of
this sense of us․ūl appears in Muh․ ammad Bāqir al-S․adr’s Durūs fı̄ ʿilm al-us․ūl, published in English
by Roy Mottahedeh as Lessons in Islamic Jurisprudence (Oxford: Oneworld Publications, 2003). I
include the term in this header in the latter sense.
72 Bā H ․ usayn, Qawāʿid, 63–4 (defining ․dawābit․ fiqhiyya).
73 See above, notes 38–45, and accompanying text.
74 For contrasting studies on the origins of the paternity canon, see Schacht, Origins of Muhammadan
Jurisprudence, 181–8 (arguing that the paternity canon originated with Roman law and transferred
to the Iraqis before Islam’s advent or else in the second/eighth century, and that it was introduced as
a hadith in the generation preceding Ibrāhı̄m b. Saʿd (a contemporary of Mālik (d. 179/795)), who
was responsible for putting the canon in the form of a hadith report); Harald Motzki, H ․ adı̄th: O rigins
248
and Developments (London: Ashgate, 2004), xlv (offering a general overview); Harald Motzki, The
Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools, trans. Marion Katz (Leiden:
Brill, 2001), 91, 125–7 (noting that several early jurists quoted the canon as an early legal opinion or
a prophetic dictum, including Ibn Jurayj quoting ʿAt․āʾ, Mālik in his Muwat․․taʾ, and ʿAbd al-Razzāq
in his Mus․annaf, while acknowledging that it may also have been in pre-Islamic usage by the judge
Aktham b. S․ayfı̄); Motzki, ‘The Mus․annaf of ʿAbd al-Razzāq al-S․anʿānı̄’, 18. For additional origins
studies of this canon, see Crone, Roman, Provincial and Islamic Law, 10, 96ff; G. H. A. Juynboll,
‘Some Notes on Islam’s First Fuquhāʾ [sic] Distilled from Early H ․ adı̄th Literature’, Arabica 39 (1992),
287–314; Uri Rubin, ‘Al-Walad li al-firāsh,’ Studia Islamica 78 (1993), 5–26; Ella Landau-Tasseron,
‘Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic
societies’, Bulletin of School of Oriental and African Studies 66 (2003), 176–80.
75 Among Sunni jurists, including late H ․ anafı̄s, see Mah
․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 223–4; for Shiʿi
jurists, see Bujnūrdı̄, Qawāʿid, 1:135.
76 See Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 223.
77 See Harald Motzki, ‘Wal-muh․sanātu mina n-nisʾi illā mā malakat aimānukum (Koran 4:24) und die
koranische Sexualethik’, Der Islam, 63 (1986), 192–218. See also my Doubt in Islamic Law, 50–1
n. 6, 151–52 n. 78.
78 Muh․ ammad b. Khalaf b. H ․ ayyān Wakı̄ʿ, Akhbār al-qud․āt, ed. Saʿı̄d Muh․ ammad al-Lah․ h․ ām (Bei-
rut: ʿĀlam al-Kutub, 2001), 382: bayʿ al-ama ․talāquhā.
79 Wakı̄ʿ, Akhbār al-qud ․āt, 468: al-nikāh․ bi-yad al-sayyid, wa-l-t․alāq bi-yad al-ʿabd.
80 See generally Bā H ․ usayn, Qawāʿid.
81 See Bujnūrdı̄, al-Qawāʿid al-fiqhiyya, 135 (explaining that interpretive canons are for the mujtahid
rather than the muqallid).
82 On ‘ordinary meaning’ and ‘objectified intent’ in American law, see Scalia and Garner, Reading
Law, 69–77 (defining the ‘ordinary-meaning canon’ as follows: ‘Words are to be understood in
their ordinary, everyday meanings – unless the context indicates that they bear a technical sense’);
John Manning, ‘Textualism and Legislative Intent’, Virginia Law Review 91 (2005), 424 (defining
‘objectified intent’ as the ‘import that a reasonable person conversant with applicable social and
linguistic conventions would attach to the enacted words’ that textualists typically apply); Ryan
D. Doerfler, ‘Who Cares How Congress Really Works’, Duke Law Journal 66 (2017), 983 (build-
ing on notions of objectified intent through analyses in linguistic philosophy with emphasis on
context as information salient to both author and audience).
83 For discussion, see, e.g., Tashkı̄rı̄ et al., Qawāʿid, 28–31 (thubūt al-h․aqı̄qa al-sharʿiyya: presumption
of literal meaning in Islamic law), 32–4 (al-mushtaqq ․haqı̄qa fı̄ al-multabis wa-majāz fı̄ ghayrih: deriv-
ative words are to be taken literally when in doubt about their meaning, and otherwise [they are
to be taken] figuratively [as appropriate]), 38–42 (ʿalāmāt al-h․aqı̄qa: indications of literal meaning),
42 (as․ālat al-z
․uhūr: presumption of apparent or prima facie meaning).
84 See Mecelle, art. 36 (al-ʿāda muh ․akkima [or muh․akkama]) (discussed, for instance, in Kamali, ‘Legal
Maxims’, 87–8).
85 Mecelle, art. 40 (al-h․aqı̄qatu tutrak bi-dalālat al-ʿāda); art. 43 (al-maʿrūf ʿurfan ka-l-mashrūt․ shart․an). For
discussion, see, e.g., Khaleel, ‘Islamic Law Maxims’, 89–90; Kamali, ‘Legal Maxims’, 88–9.
86 See Khaleel, ‘Islamic Law Maxims’, 89–90; Kamali, ‘Jurisprudence’, 373.
87 Kamali, ‘Legal Maxims’, 88–9.
88 In the vast us․ūl al-fiqh literature specifying grammatical rules of interpretation, among other
rules, two notable examples that address Sunni and Shiʿi law, respectively, and that are available
in English are Bernard Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf
al-Dı̄n al-Āmidı̄ (Salt Lake City: University of Utah, 1992) (a translation and exposition of Sayf al-
Dı̄n al-Āmidı̄’s al-Ih․kām fı̄ us․ūl al-ah․kām); Mottahedeh, Lessons in Islamic Jurisprudence (a translation
and commentary on Muh․ ammad Bāqir al-S․adr’s, Durūs fı̄ ʿilm al-us․ūl).
89 See, e.g., Būrnū, Mawsūʿa, 39 (lā ijtihād maʿa al-nas․․s); Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 225–26 (lā
masāgha li-l-ijtihād fı̄ mawrid al-nas․․s); Tashkı̄rı̄ et al., Qawāʿid, 425–75 (section on: taqdı̄m al-nas․․s
ʿalā al-z
․āhir; tah․kı̄m al-nas․․s ʿalā al-z
․āhir); Kamali, ‘Legal Maxims,’ 81 (‘ijtihād does not apply in the
presence of nas․․s [text]’).
90 Many canons on custom relate to the universal canon regarding it: ‘custom has legal authority: al-
ʿāda muh․akkima [or muh․akkama]’ (Mecelle, art. 36). For discussion of subsidiary canons, see Kamali,
‘Legal Maxims,’ 88–89: ‘what is determined by custom is tantamount to a contractual stipulation:
al-maʿrūf ʿurfan ka-l-mashrūt․ shart․an’ (Mecelle, art. 43).
91 Būrnū, Mawsūʿa, 28 (al-ijtihād lā yunqad ․ bi-mithlih).
249
Intisar A. Rabb
92 On the primacy of divine legislative supremacy in Islamic law, see my Doubt in Islamic Law,
104–14; idem, ‘The Islamic Rule of Lenity’, 1316–23.
93 See Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 233.
94 Ibid., 222 (citing Mecelle, arts. 37 and 39, respectively: istiʿmāl al-nās ․hujja yajib al-ʿamal bihā and lā
yunkar taghayyur al-ah․kām bi-taghayyur al-azmān, and the papers of the Preparatory Committee for
the Mecelle stating that that ‘changes over time change legal rulings, requiring that [new rulings]
be based on ʿurf [custom] and ʿāda [practice]’).
95 In fact, one Shiʿi jurist has suggested that early accommodation for analogical reasoning and equi-
table principles facilitated the development of the field of legal canons in Sunni law much earlier
than Shiʿi law. Bujnūrdı̄, al-Qawāʿid al-fiqhiyya, 9.
96 Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 235. See Mecelle, art. 36 (al-ʿāda muh․akkima [or muh․akkama]) (cited
above, note 74), art. 39 (lā yunkar taghayyur al-ah ․kām bi-taghayyur al-azmān) (cited above, note 77).
97 See Qurʾan 9:60 ( fuqarāʾ, masākı̄n, ʿāmilı̄n ʿalayhā, muʾallafat qulūbuhim, fı̄ al-riqāb, ghārimı̄n, fı̄ sabı̄l
Allāh, ibn al-sabı̄l).
98 Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 227–8 (discussing divergent opinions among various schools on
this notion).
99 Ibid., 235–6 (citing Abū Yūsuf, Kitāb al-Kharāj, 46).
100 See, e.g., ibid., 219–20 (citing Asnawı̄, Sharh ․ al-Manāhij, 3:108: al-as․l fı̄ al-manāfiʿ al-ibāh․a wa-fı̄
al-mafāsid al-manʿ (the principle in matters of benefit is permissibility and in harm prohibition));
Khaleel, ‘Islamic Law Maxims’, 202 (discussing al-as․l barāʾat al-dhimma and al-as․l fı̄ al-abd․āʿ al-
tah․rı̄m); Kamali, ‘Legal Maxims’, 84.
101 For an introduction, see S․adr, Durūs fı̄ ʿilm al-us․ūl, in Mottahedeh (trans.), Lessons in Islamic Ju-
risprudence, 119–33, 165–9. See also Tashkı̄rı̄ et al., Qawāʿid, 351–424 (discussing 11 procedural
presumptions).
102 See, e.g., Makārim-Shı̄rāzı̄, Qawāʿid, 52. He also notes (p. 22) the differences between ju-
risprudential subjects and legal canons subjects – and that discussions of ․h ujjiyyat al-istis․․h āb
fı̄ ʾ-l-shubahāt al-mawd․ūʿiyya or al-barāʾa or waʾl-ih․tiyāt․ al-jāriyatān fı̄hā are the latter because they
yield individual rulings and obligations (ah․kām and waz ․aʾif shakhs․iyya), not general principles for
deriving them.
103 See Hossein Modarressi, Theology of Delegation, Lecture at Yale Law School (unpublished remarks)
(7 April 2015).
104 For discussion in the context of Shı̄ʿı̄ ‘dueling theories of delegation and interpretation’, see my
Doubt in Islamic Law, 260–315, and on the partial-H ․ anbalı̄ and Z ․ āhirı̄ rejection of legal canons,
see ibid., 229–59.
105 For further discussion, see above, note 103, and my ‘Islamic Rule of Lenity,’ 1315–23.
106 Mecelle, art. 76: al-bayyina ʿalā al-muddaʿı̄ wa-l-yamı̄n ʿalā man ankar.
107 Ibid., art. 69: al-khit․āb kaʾl-kitāb. For discussion, see, e.g., Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 328–9.
108 Mecelle, art. 5: al-as․l baqāʾ mā kāna ʿalā mā kāna.
109 Ibid., art. 10: mā thabata bi-zamān yuh․kam bi-baqāʾih mā lam yūjad dalı̄l ʿalā khilāfih.
110 See Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 329: al-qadı̄m yutrak ʿalā qidamih (citing Mecelle, art. 6) and al-as․l
anna mā kāna qadı̄man yutrak ʿalā ․hālih wa-lā yughayyar illā bi-h․ujja (explaining that this canon func-
tions as a tie-breaker in favour of the pre-existing legal status when competing claimants provide
evidence of a new status and a preexisting status that are equally probative; and further specifying
that claims of legal change must be unassailable).
111 Mecelle, art. 7: al-d․arar lā yakūn qadı̄man.
112 For an argument that judges exhibit a tendency to value continuity over change, as observes in
American law, see David L. Shapiro, ‘Continuity and Change in Statutory Interpretation,’ New
York University Law Review 67 (1992): 921–60.
113 Būrnū, Mawsūʿa, 57 (kull man lahu ․haqq fa-huwa lahu ʿalā ․hālih ․hattā yaʾtı̄h al-yaqı̄n ʿalā khilāf dhālik).
115 Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 349: yuqbal qawl al-mutarjim mut․laqan (citing Mecelle, art. 71; Ibn
Nujaym, Ashbāh, 51).
116 Mah․ mas․ānı̄, Falsafat al-Tashrı̄ʿ, 351: idhā ʿalima al-h․ākim ․sidq al-shāhid al-wāh․id, yajūz lah an yah․kum
bih (citing Ibn al-Qayyim, T ․ uruq, 72, 75–8; Abū Dāwūd, Sunan, 3:308, no. 3607).
117 Mecelle, art. 1140: al-amāra al-bāligha ah․ad asbāb al-h ․ukm. For further discussion of the use of cir-
cumstantial evidence, see Hossein Modarressi, ‘Circumstantial Evidence in the Administration
of Islamic Justice’, in Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail
Krasner Balbale (Cambridge, MA: ILSP/Harvard University Press, 2017), 23–46.
250
118 Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 373. See also Mecelle, art. 1140–1.
119 See Rabb, Doubt in Islamic Law, 1–2.
120 See Modarressi, ‘Circumstantial Evidence’, 18–19. For further discussion of and restrictions on
this canon, especially among later Sunni jurists, see Baber Johansen, ‘Signs as Evidence: The
Doctrine of Ibn Taymiyya (1263–1328) and Ibn Qayyim al-Jawziyya (d. 1351) on Proof ’, Islamic
Law and Society 9, no. 2 (2002), 175–6; Intisar A. Rabb, ‘The Curious Case of Bughaybigha’, in
Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Balbale (Cambridge,
MA: ILSP/Harvard University Press, 2017), 42–3.
121 Mecelle, art. 80: La ․hujja maʿa al-tanāqud ․.
122 See Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 376 (citing Mecelle, art. 80, and noting that if a judge issues a
judgment on the basis of the initial testimony before retraction, the two witnesses are liable for
any harm or damages caused).
123 See ibid., 376. Note that this approach was not universal. For example, Mālikı̄s and others ac-
cepted various types of circumstantial evidence, including pregnancy as conclusive evidence of
an unmarried woman having committed a sex crime, and drunkenness or the smell of alcohol on
the breath as sufficient evidence to establish the crime of drinking. See ibid., 374–5; Rabb, Doubt
in Islamic Law, 115–17, 159, 251.
124 See section 2.2 ‘Interpretive canons’, above pages 231–34.
125 Wakı̄ʿ, Akhbār al-qud․āt, 87: lā yuʾaddı̄ Muslim dam kāfir.
126 Ibid., 481 (contested canon).
127 For discussion of evidentiary disparities between men and women’s court testimony, see Moham-
mad Fadel, ‘Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal
Thought’, International Journal of Middle East Studies 29 (1997), 185–204.
128 Wakı̄ʿ, Akhbār al-qud ․āt, 210: laysa bayn al-ʿabı̄d qis․ās․.
129 Ibid., 116: aqı̄lū dhawı̄ al-hayaʾāt zallātihim. For discussion, see my Doubt in Islamic Law, 79–88,
97–8.
130 For general discussion of the phenomenon (albeit without explicit reference to legal canons), see,
for instance, Tillier, Les Cadis dʿIraq, 138–86.
131 See Eskridge, Interpreting Law, 12.
132 See Būrnū, 1:52–53.
133 Būrnū, 1:52.
134 Būrnū, Mawsūʿa, 52–53. See also Mah․ mas․ānı̄, Falsafat al-tashrı̄ʿ, 255–56 ( jawāz al-tashrı̄ʿ min qibal
al-sult․ān).
135 Mecelle, art. 58: al-tas․arruf ʿalā al-raʿiyya manūt․ bi-l-mas․lah
․a.
136 See Murteza Bedir, ‘From Fikih to Law: Secularization Through Curriculum’, Islamic Law and
Society 11 (2004), 283, 384–5 (noting that he ‘accepted the Young Ottoman idea that fikih is com-
patible with modern needs and that it therefore is perfectly reasonable to codify it as a “code” but
that the idea was really a “conceptual innovation, arguably the most important departure ever
made from the traditional understanding of fiqih” that effectively transformed a purely jurists’ law
to state law’).
137 See, e.g., Bā H․ usayn, Qawāʿid, 153.
138 Ibid. (defining these canons as ‘administrative rules’ governing the relationship between the state
and the people).
139 See, for example, Eskridge, Interpreting Law, 12 and passim. Compare Jane Schacter, ‘The Chang-
ing Structure of Legitimacy in Statutory Interpretation’, Harvard Law Review 108 (1995): 593–663.
140 Mecelle, art. 16 (al-ijtihād la yunqad ․ bi-mithlih).
141 Kamali, ‘Legal Maxims’, 90.
142 Būrnū, Mawsūʿa, 28 (al-ijtihād lā yunqad․ bi-mithlih), 39 ( fa-lā yumkin an tustaqarr al-ah․kām).
143 For recent English-language works discussing Islamic legal canons, see Khadiga Musa, ‘Legal
Maxims as a Genre of Islamic Law’, Islamic Law and Society 21 (2014), 325–65; Kamali, ‘Legal
Maxims’, 77–101; Muh ․ aqqiq Dāmād, ‘Islamic Juridical Principles’, 89–107; Heinrichs, ‘K ․ awāid
Fik․ hiyya’, Schacht, Origins of Muhammadan Jurisprudence, 180–9 (chapter 6 on ‘legal maxims’). For
my works on the topic, see my ‘Islamic Legal Maxims as Substantive Canons of Construction’,
63–125; idem, ‘The Islamic Rule of Lenity’, 1299–1351; idem, ‘Islamic Legal Minimalism: Legal
Maxims and Lawmaking When Jurists Disappear’, in Law and Tradition in Classical Islamic Thought,
ed. Michael Cook et al. (New York: Palgrave, 2013), 145–66; idem, Doubt in Islamic Law; and
idem, ‘The Curious Case of Bughaybigha’, 23–46, esp. 27–8, 40–4. The source in Arabic, Bahasa,
Persian, and Turkish of the past 4 to 5 decades are even more extensive.
251
Intisar A. Rabb
144 See Hossein Modarressi, ‘The Legal Basis for the Validity of the Majority Opinion in Islamic Leg-
islation’, Under Siege: Islam and Democracy (Conference Proceedings), ed. Richard Bulliet (New York:
Middle East Institute, Columbia University, 1993), 81–92, esp. 82–6. The chapter in question
was published from a paper delivered at the John M. Olin Center for Inquiry into the Theory and
Practice of Democracy in the University of Chicago in 1985.
145 See, e.g., the scholars and sources listed in notes 146–149 below.
146 Būrnū, Mawsūʿa, 77–92 (noting that jurists cited legal canons to provide rationales for rulings or
preference for earlier but conflicting opinions (aqwāl), citing and providing examples from the
works of Kāsānı̄, Qād․ ı̄ Khān, Shihāb al-Dı̄n al-Qarāfı̄, Imām al-H ․ aramayn al-Juwaynı̄, Nawawı̄,
Ibn Taymiyya, Ibn al-Qayyim and others).
147 See, for instance, Būrnū, Mawsūʿa, 30–1.
148 See, for instance, the sources listed in notes 37 and 61.
149 For discussion, see, for instance, Dawood Ahmed and Tom Ginsburg, ‘Constitutional Islamiza-
tion and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitu-
tions’, Virginia Journal of International Law 54 (2014), 615–95 (discussing the origins of Sharı̄ʿah
clauses); Intisar A. Rabb, ‘Least Religious Branch? Judicial Review and the New Islamic Con-
stitutionalism’, UCLA Journal of International and Foreign Affairs 17 (2013), 72–132, nn. 1 and 17
(listing countries with ‘Sharı̄ʿa clauses’).
151 These trends present themselves most starkly and to most deleterious effect in Islamic criminal law.
My critique centres on the modernist resurgence of Islamic criminal law. See my Doubt in Islamic
Law, 317–20. There, I noted that a characteristic feature of its resurgence is a nostalgia among Mus-
lims seeking political power and social control. They assert that Islamic criminal law, specifically,
ensured order and adherence to the moral values that helped Muslims prosper in the past. These
assertions are poorly reasoned and ahistoric. Nevertheless, appeals to an imagined golden era of
Islamic ascendancy that was marked by control over criminal law brings symbolic legitimacy to
actors in some West African countries, to name one example, like Northern Nigeria – however dra-
conian and removed from the legal texts or historical practice their version of Islamic criminal law
tends to be. In short, these actors seek to enforce criminal laws marked by harsh laws on the books
and broad enforcement of punishment, and do not account for the operation of the doubt canon
or other legal canons that were key to the historical definitions and practice of Islamic criminal
law and procedure. For further analysis of Islamic criminal law in Northern Nigeria, see Luqman
Zakariyah, Legal Maxims in Islamic Criminal Law: Theory and Applications (Leiden: Brill, 2015);
idem, “Confession and Retraction: The Application of Islamic Legal Maxims in Safiyyatu and
Amina’s Cases in Northern Nigeria,” Journal of Muslim Minority Affairs, 30, no 2 (2010): 251–63.
152 For Mālikı̄s, Muh․ ammad al-Rūkı̄ wrote al-Qawāʿid al-fiqhiyya min khilāl Kitāb al-Ishrāf ʿalā
masāʾil al-khilāf li-l-Qād ․ı̄ ʿAbd al-Wahhāb al-Baghdādı̄ al-Mālikı̄ (Damascus: Dār al-Qalam,
1998). Other important Mālikı̄ works include ʿĀdil b. ʿAbd al-Qādir b. Muh․ ammad Walı̄
Qūta, al-Qawāʿid wa-l-d․awābit․ al-fiqhiyya al-Qarāfiyya: zumrat al-tamlı̄kāt al-māliyya (Beirut:
Dār al-Bāshāʾir al-Islāmiyya, 2004); Saʿdanā b. Aʿal Sālim, Taysı̄r al-marājiʿ wa-l-madārik li-
qawāʿid madhhab al-Imām Mālik: Qirāʾa ․h adı̄tha fı̄ qawāʿid al-fiqh al-Mālikı̄ (al-ʿAyn, UAE: Dār
Yūsuf b. Tāshifı̄n wa-Maktabat al-Imām Mālik, 2007) and ʿAbd Allāh al-Hilālı̄, al-Taqʿı̄d
al-fiqhı̄ ʿinda al-Qād․ı̄ ʿAbd al-Wahhāb al-Baghdādı̄ al-Mālikı̄: al-qawāʿid al-fiqhiyya al-mumayyaza
li-fiqh al-Mālikiyya nam̄ūdhajan (Fez, Morocco: Mat․baʿat Ānfū, 2004). In H ․ anbalı̄ law, the
17th–19th centuries run of legal canons literature ended with a H ․ anafı̄ jurist, Ah․ mad b. ʿAbd
Allāh al-Qārı̄ (d. 1359/1940), who wrote a commentary on the Mecelle according to the H ․ an-
balı̄ school called Majallat al-ah․kām al-sharʿiyya ʿalā madhhab al-Imām Ah․mad b. H ․ anbal. Perhaps
having had their interest piqued by this intervention, H ․ anbalı̄ jurists then published sev-
eral works on legal canons, including Saʿdı̄’s (d. 1376/1956–7), Risāla fı̄ ʾl-qawāʿid al-fiqhiyya,
al-Qawāʿid wa-l-us․ūl al-jāmiʿa wa-al-furūq wa-l-taqāsı̄m al-badı̄ʿa al-nāfiʿa and his T ․ arı̄q al-wus․ūl
ilā ʿilm al-maʿmūl bi-maʿrifat al-d ․awābit․ wa-l-qawāʿid wa-l-us․ūl. More recently, Nās․ir b. ʿAbd
Allāh b. ʿAbd al-ʿAzı̄z al-Maymān published al-Kulliyyāt al-fiqhiyya fı̄ al-madhhab al-H ․ anbalı̄
(Mecca, Saudi Arabia: n.p., 1424/[2003–4]).
153 Saʿı̄d al-Shāwı̄ recently published a work on legal canons in Shāfiʿı̄ law entitled Maqās․idiyyat al-
․ al-anām li-ʿIzz al-Dı̄n b. ʿAbd al-Salām
qawāʿid al-fiqhiyya min khilāl Kitāb Qawāʿid al-ah․kām fı̄ is․lāh
(Cairo: Dār al-Kalima, 2015). Likewise, Muh․ ammad ʿUmaym al-Ih․ sān al-Mujaddidı̄ published
Qawāʿid al-fiqh with some 426 H ․ anafı̄ canons (Pakistan: n.p., 1986) and Mus․․t afā Mah․ mūd Azharı̄
252
published a commentary on an earlier H ․ anafı̄ text on legal canons, Sharh․ Qawāʿid al-Khādimı̄
(Riyadh: Dār Ibn al-Qayyim, 2013).
154 A few of the more notable works include Muh ․ ammad H ․ usayn Yazdı̄ (d. 1329/1911), al-Qawāʿid
al-fiqhiyya (unpublished manuscript); Mahdı̄ b. H ․ usayn b. ʿAzı̄z al-Khālis․ı̄ al-Kāz․imı̄ (d. 1343/1924),
al-Qawāʿid al-fiqhiyya (unpublished manuscript); Āl Kāshif Ghit․āʾ (d. 1373/1954), Tah ․rı̄r al-Majalla
(a commentary on the Mecelle, discussed above); Bujnūrdı̄ (d. 1395/1975), al-Qawāʿid al-fiqhiyya
(also discussed above); Muh ․ ammad Fād ․ il Lankarānı̄, al-Qawāʿid al-fiqhiyya (Qum, Iran: Mihr,
1416 [1995]); Muh ․ ammad al-Khāminaʿı̄, Lamah ․āt ʿalā al-qawāʿid al-fiqhiyya fı̄ al-ah
․ādı̄th al-Kāz
․im-
iyya (Tehran: n.p., 2005); Muh ․ aqqiq Dāmād, Qavāʿid-i fiqh (Persian, with Arabic translation, in
four parts; discussed above); and Muh ․ ammad Kāz․im al-Mus․․t afawı̄, al-Qawāʿid: miʾat qāʿida fiqhiyya
maʿnan wa-madrakan wa-mawridan (Qum, Iran: Muʾassasat al-Nashr al-Islāmı̄, 1412/[1991–2]).
155 See, for instance, works featuring first-time treatises on legal canons in Ibād․ ı̄ law (the majority
tradition in Oman and present in parts of East and North Africa): Mah․ mūd Mus․․t afā ʿAbbūd
Harmūsh, Muʿ jam al-qawāʿid al-fiqhiyya al-Ibād․iyya, ed. Rid․ wān al-Sayyid (Muscat, Oman: Wizārat
al-Aqwāf wa-l-Shuʾūn al-Islāmiyya, 2010); Mus․․t afā b. H ․ amw Arshūm, al-Qawāʿid al-fiqhiyya ʿinda
al-Ibād․iyya (Muscat, Oman: Wizārat al-Aqwāf wa-l-Shuʾūn al-Islāmiyya, 2013). For other studies
on legal canons in this vein, see works by authors such as Bā H ․ usayn, Būrnū and Motzki – all
discussed above.
156 For a brief discussion of such developments, see my Doubt in Islamic Law, 317–21.
157 Būrnū, Mawsūʿa, 30. On critiques of and theories designed to explain Islamic legal casuistry, see
‘Baber Johansen, Casuistry: Between Legal Concept and Social Praxis’, Islamic Law and Society
2, no. 2 (1995): 135–56.
158 See ibid., 30–1 (h․ulūl masāʾil fiqhiyya).
159 See ibid., 31.
160 Bujnūrdı̄ presented the lingering question this way: ‘Do legal canons play a role in the process of
interpretation (ʿamaliyyat al-istinbāt․)? Are they restricted to [retrospectively] collecting or restating
scenarios from substantive law from the past, or, alternatively, did they serve to [prospectively]
expand the scope of substantive law in gathering those past scenarios such that they can now used
to determine how to interpret and construct Islamic legal rulings (kayfiyyat al-istinbāt․)?’ Bujnūrdı̄,
al-Qawāʿid al-fiqhiyya, 14–15.
161 Consider the perspectives of Ibn Nujaym, Mus․․t afā Zarqā and other scholars of legal canons,
medieval and modern – who consider canons to be the by-product of individual cases, and to be
filled with exceptions, and therefore, at most, to be sufficient as statements meant to bolster rul-
ings in probative texts but insufficient as bases for a new rulings. See, e.g., Būrnū, Mawsūʿa, 44–7
(discussing reliance on Islamic legal canons to produce new legal rulings: ․hukm istidlāl biʾl-qawāʿid
al-fi qhiyya ʿalā al-ah․kām).
162 This scholar specifically notes that, in his estimation, canons that restate rulings from the founda-
tional texts could serve as bases for new rulings while canons that do not could not. At the same
time, he acknowledges that other jurists accept rulings based on rational principles laid out in the
foundational texts – including the use of logic, public interest and custom—and that, for them, a
wider swathe of canons could also be authoritative. Būrnū, Mawsūʿa, 47–9.
163 This observation was the major point of my book on legal canons in the context of criminal law.
See, generally, my Doubt in Islamic Law.
164 Makārim-Shı̄rāzı̄, Qawāʿid, 17: ukawwin dharı̄ʿa li-l-wus․ūl ilā ah․kām kathı̄ra min awwal al-fiqh ilā
ākhirih.
165 Lajna ʿIlmiyya fı̄ al-H ․ awza al-Dı̄niyya bi-Qum, al-Qawāʿid al-us․ūliyya wa-l-fiqhiyya, 18–19.
166 Dāmād, Qavāʿid-i fiqh, 1–2 (noting, for example, that many modern legal rulings and opinions
issue from the universal legal canon ‘no harm’).
167 Bujnūrdı̄, al-Qawāʿid al-fiqhiyya, 14–15.
168 Ibid., 15 (calling them societal legal canons: qawāʿid fiqhiyya ․hayawiyya).
169 Ibid. (quoting Mut․ahharı̄: jumūd al-fikr al-ijtimāʿı̄ lidā fuqahāʾinā).
170 On the notion of dynamic Islamic legal interpretation, see my lecture with this title. Intisar A.
Rabb, “Dynamic Islamic Legal Interpretation,” Yale Law School (September 2017) (unpublished
lecture). Compare William N. Eskridge, Jr., Dynamic Statutory Interpretation (Cambridge, MA:
Harvard University Press, 1994).
171 Ralf Michaels answers this question as it relates to both legal traditions, I believe correctly, with
an emphatic yes, even as he acknowledges the contested nature of his claim among comparatists.
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Intisar A. Rabb
See his ‘Banning Burqas: The Perspective of Postsecular Comparative Law’, Duke Journal of Com-
parative and International Law 28 (2018), 213–45.
172 For arguments in the American context, see, for example, Eskridge, Interpreting Law, 12 and pas-
sim; Schacter, ‘Structure of Legitimacy in Statutory Interpretation’, 593–663.
173 See Anita Krishnakumar, ‘Dueling Canons’, Duke Law Journal 65 (2016), 910–1006.
174 Karl Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about
How Statutes Are to Be Construed’, Vanderbilt Law Review 3 (1950): 395–406.
175 See, Jonathan R. Macey and Geoffrey P. Miller, ‘The Canons of Statutory Construction and
Judicial Preferences’, Vanderbilt Law Review 45 (1992), 647–72 (‘A regrettable side-effect of Karl
Llewellyn’s interesting critique of the canons of statutory construction was that intellectual debate
about the canons was derailed for almost a quarter of a century.’).
176 See, e.g., Kenneth A. Shepsle, ‘Congress is a They, not an It: Legislative Intent as Oxymoron’,
International Review of Law and Economics 12 (1992), 239–56. But see John Manning, ‘Second Gen-
eration Textualism’, California Law Review 98 (2010) 1287–1318 (noting that public choice theory,
while initially damaging to the study of textualism and legal canons, had the unintended effect of
strengthening the grounds for both).
177 Compare Eskridge, Interpreting Law, app., 407–45 (collecting the canons used in the US Supreme
Court from 1986 through 2016) with James J. Brudney and Corey Ditslear, ‘Canons of Construc-
tion and the Elusive Quest for Neutral Reasoning’, Vanderbilt Law Review 58 (2005), 1–120, at
106–7 (cataloguing the use of some canons subsequently in the same court) and Abbe R. Gluck
and Lisa Schultz Bressman, ‘Statutory Interpretation from the Inside: An Empirical Study of
Congressional Drafting, Delegation, and the Canons’, Stanford Law Review 65 (2013) 901–1025
(cataloging the use of canons in Congress).
178 See above notes 47 and 103, and accompanying text.
179 Būrnū, Mawsūʿa, 22–23.
180 Ibid., at 24.
181 Ibid. (tanāzuʿ al-masʾala bayna al-qāʿidatayn).
182 See generally Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press of Harvard Uni-

․ usayn, Yaʿqū b. al-Qawāʿid al-fiqhiyya: al-mabādiʾ, al-muqawwimāt, al-mas․ādir, al-dalı̄liyya, al-tat․awwur.
Bā H
Riyadh: Maktabat al-Rushd, 1998.
Bujnūrdı̄, Muh․ ammad H ․ asan. al-Qawāʿid al-fiqhiyya, ed. Mahdı̄ al-Mihrı̄zı̄ and Muh․ ammad H ․ usayn
al-Dirāyatı̄. Qum, Iran: Dalı̄ l-i Mā, 1424/2003–4.
Būrnū, Muh ․ ammad S․idqı̄ b. Ah ․ mad b. Ah ․ mad al-Ghazzı̄. al-Wajı̄z fı̄ ı̄d․āh
․ qawāʿid al-fiqh al-kulliyya.
Beirut: Muʾassasat al-Risāla, 1983.
Dāmād, Mus․․t afā Muh․ aqqiq. Qavāʿid-i Fiqh, 4th edn. Tehran: Markaz-i Nashr-i ʿUlūm-i Islāmı̄, 2001.
Heinrichs, Wolf hart. ‘Qawāʿid as a Genre of Legal Literature’. In Studies in Islamic Legal Theory, ed.
Bernard Weiss. Leiden: Brill, 2002, 366–84.
Kamali, Mohammad Hashim. ‘Legal Maxims and Other Genres of Literature in Islamic Jurispru-
dence’. Arab Law Quarterly 20, no. 1 (2006): 77–101.
Āl Kāshif al-Ghit․āʾ, Muh․ ammad al-H ․ usayn. Tah․rı̄r al-Majalla. Qum, Iran: al-Majmaʿ al-ʿĀlamı̄ li-
Taqrı̄b Bayna al-Madhāhib al-Islāmiyya, 2001–2.
Mah․ mas․ānı̄, S․ubh․ ı̄. Falsafat al-Tashrı̄ʿ fı̄ al-Islam, 5th edn. Beirut: Dar al-ʿIlm li-l-Malāyı̄n, 1980.
Nadwı̄, ʿAlı̄ Ah․ mad. al-Qawāʿid al-fiqhiyya: Mafhūmuhā, nashʾatuhā, tat․awwuruhā; dirāsāt muʾallafātuhā,
muhimmātuhā, tat․bı̄quhā, 4th edn. Damascus: Dar al-Qalam, 1994.
Rabb, Intisar A. Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law.
Cambridge: Cambridge University Press, 2015.
Schacht, Joseph. Origins of Muhammadan Jurisprudence. Oxford: Oxford University Press, 1950.
Tashkı̄rı̄, Muh․ ammad ʿAlı̄ et al. (eds). al-Qawāʿid al-us․ūliyya wa-l-fiqhiyya. Qum, Iran: al-Lajna al-
ʿIlmiyya fı̄ al-H ․ awza al-Dı̄niyya bi-Qum, 2004.
Zarqā, Ah․ mad Muh․ ammad. Sharh․ al-qawāʿid al-fiqhiyya, ed. ʿAbd al-Sattār Abu Ghudda. Damascus:
Dar al-Qalam, 1989.
Zarqā, Mus․․t afā Ah․ mad. al-Madkhal al-fiqhı̄ al-ʿāmm. Damascus: Dar al-Qalam, 2004.
Zuh․ aylı̄, Muh․ ammad Mus․․t afā. al-Qawāʿid al-fiqhiyya wa-tat․bı̄quhā wa-tanz ․ ı̄muhā fı̄ al-madhāhib al-arbaʿa.
Damascus: Dar al-Fikr, 2006.
254
14
Ijtihād and taqlı̄d
Between the Islamic legal tradition
and autonomous western reason
Sherman A. Jackson
To the memory of
Shaykh H
․ asan Salı̄m H
․ asan S․ālih
․
Autonomous reason’s rise to primacy in the modern West was a complicated affair. As late as
the 18th century, even European thinkers who championed the cause of reason questioned its
panacean powers and dreaded its collateral liabilities.1 As fervently as Descartes insisted that
accidental variations of context and substance be abandoned in favour of the exclusively ab-
stract and decontextualized, thinkers such as the French Jesuit Gabriel Daniel questioned the
authenticity of the kind of certainty the cogito ergo sum could actually deliver.2 As forcefully as
Kant and the Aufklärer champions of the Enlightenment cast reason as an independent faculty
insularly nested in some noumenal or mental realm, anti-Enlightenment intellectuals, such
as J. G. Hamann, pushed back, stressing the social, historical, affective and other dimensions
of reason, while challenging its status as the exclusive means of knowing.3 Other objections
to reason’s untrammelled authority came from Romantics, such as Fichte and Schelling, who
stressed its utter inadequacy before the profound.4 Despite these challenges, however, what
would eventually emerge as ‘Western modernity’ embraced reason as the preferred if not
exclusive means of knowing, beyond what the senses could directly apprehend.5 This reason
was autonomous and universal; and it transcended all accidents of time and place. As its own
self-authenticating authority, it displaced the moral community as guarantor or umpire of the
mind’s apposite use.6 Thus, insists Locke, ‘the floating of other men’s opinions in our brain
makes us not one jot the more knowing’.7 Joined by the likes of J. S. Mill, he would scoff at
‘received propositions’ or ‘received opinions’.8 Meanwhile, Kant would condemn as a ‘sim-
pleton’ anyone who ‘always allowed himself to be guided by other persons’.9 By contrast, he
deemed originality a sign of genius.10 Knowledge, according to these men, is not a corporate
entity but ‘the achievement of solitary men’.11 Stephen Toulmin characterizes this develop-
ment as a move away from practical engagement in favour of epistemology.12 ‘Meaning’ in
this context acquires a premium over ‘being’,13 and this casts aspersions on all forms of know-
ing that are grounded in tradition, authority, culture and similar modes of embodiment.
This embrace of modern, autonomous reason rendered continuous progress, originality and
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Sherman A. Jackson
innovativeness signatures of a proper commitment to rationality and thus civilization. This is

unmistakably captured in Isaiah Berlin’s comment on Kant’s famous response to the question,
‘What is Enlightenment?’
[E]nlightenment is simply the ability of men to determine their own lives, the liberation
of themselves from the leading-strings of others, the fact that men become mature and
determine what to do, whether it be evil or whether it be good, without leaning exces-
sively upon authority … upon the State … upon tradition … upon any kind of estab-
lished values on which the weight of moral responsibility is then squarely laid. A man is
responsible for his own acts … Civilisation is maturity, maturity is self-determination –
being determined by rational considerations, and not being pushed and pulled about
by something or other over which we have no control, in particular by other persons.14
As the academic study of Islam reached maturity in the West in the 19th century, this au-
tonomous, self-authenticating reason was well on its way to becoming the reigning régime
of sense in the Western academy, at least ostensibly. This was not simply reason writ large,
finally uncovered and laid bare in its unadulterated purity; this was essentially history
normalized, internalized and then forgotten as history. Nevertheless, as the touchstone of
the Western academy, this very particular understanding and valuation of reason informed
the basic prism through which the study of Islam was pursued, exerting a significant im-
pact on our understanding and valuation of Islam’s intellectual tradition.15 In this chapter,
I shall compare and contrast three competing perspectives on the Islamic legal institutions
of ijtihād and taqlı̄ d. I shall argue that two of these extremely influential approaches carry
into their analyses Western modernity’s positive valuation of reason, as an autonomous,
self-authenticating episteme, coupled with a negative valuation of mimesis,16 as a heteron-
omous, historically bound means of authenticating claims to (religious) knowledge. These
polarities infuse their authors’ understanding of ijtihād and, especially, taqlı̄ d with certain
biases and presuppositions that distort their actual value and function in Islamic law. Yet,
while these approaches share this common point of departure in modern Western reason,
this is obscured by their authors’ mutually contradictory conclusions on the question of
the closing of the gate of ijtihād. By contrasting these approaches, therefore, with a third
approach – my own – I hope to highlight the fact and impact of their common under-
standing and valuation of ‘reason’ and mimesis. Even where the influence of this modern
Western perspective is ostensibly transcended, as is the case with one of these approaches,
the author’s failure to acknowledge its impact on his earlier work, as well as his reading of
those he critiques, leaves a number of contradictions and antinomies outstanding. In the
end, the true nature of Islamic law, including taqlı̄ d and its mimetic underpinnings, remains
inadequately understood.
1 Two theses
The classic statement on ijtihād and taqlı̄d was put forth some 50 years ago by Joseph Schacht
in his groundbreaking work, An Introduction to Islamic Law:
By the beginning of the fourth century of the hijra (about A.D. 900) … the point had
been reached when the scholars of all schools felt that all essential questions had been
thoroughly discussed and finally settled, and a consensus gradually established itself to
the effect that from that time onwards no one might be deemed to have the necessary
256
qualifications for independent reasoning in law and that all future activity would have
to be confined to the explanation, application, and, at the most, interpretation of the
doctrine as it had been laid down once and for all. This ‘closing of the door of ijtihād,’ as
it was called, amounted to the demand for tak ․ lı̄d, a term which had originally denoted
the kind of reference to the Companions of the Prophet that had been customary in the
ancient schools of law, and which now came to mean unquestioning acceptance of the
doctrines of the established schools and authorities.17
Schacht’s statement was not entirely free of ambiguity.18 What is clear, however, from the
tone and substance of his account, is that, to his mind, the development he describes almost
singularly explained Islamic law’s slide into decline. Over the course of his writings, Schacht
went back and forth on this negative denouement, observing, for example, that,
Whatever the theory might say on ijtihād and taqlı̄d, the activity of the later jurists, after
the ‘closing of the door of independent reasoning,’ was no less creative, within the limits
set to it by the nature of sharı̄ʿa, than that of its predecessors.19
Elsewhere, however, he suggests that these creative energies were no match for the ‘ankylose’
(rigor mortis) that had set in alongside the immutable nature of Islamic law.20 This would
be joined by even more extreme statements to the effect that even ‘the mechanical method
of reasoning by analogy … was put out of the reach of later generations by the doctrine of
the closing of the gate of independent reasoning (ijtihād)’.21 By all accounts, Schacht was the
leading scholar of Islamic law in his time, about whom G. E. von Grunebaum would later
say, ‘Muslim law[’s] … origin and structure no longer can be seen except through his eyes’.22
This rendered his thesis the going opinion in the field at large, in which capacity it exerted
far-reaching influence. Equally influential, however, was its strong and unmistakeable illo-
cutionary implication: ijtihād is good; taqlı̄ d is bad.
Nowhere, perhaps, is this implication more evident than in Schacht’s choice of a transla-
tion for the terms ijtihād and taqlı̄ d. Ijtihād was not ‘independent interpretation’, ‘unmediated
derivation’ or ‘principled deduction’ – all equally plausible renderings; it was ‘independent
reasoning’. While this may appear neutral on its face, ‘independent reasoning’ signalled pre-
cisely the kinds of intellectual energies and aspirations implied by Kant’s, Locke’s, Mills’ and
Berlin’s Enlightenment reason. It echoed the modern Western ideal that reason, deployed by
solitary persons, was the superior (if not sole) basis of knowing, that it was or could be its own
self-authenticating authority, and that it was progressive and independently dispositive in any
argument. That Schacht’s rendering of ijtihād entailed such a value judgement is thrown into
relief by his translation of taqlı̄ d. Taqlı̄d, according to him, was not the ‘critical extension of
sacred history’, ‘provisional deference to precedent’ or even ‘mediated interpretation’; it was
simply ‘unquestioning acceptance’.23 This connoted precisely the kind of ‘leaning excessively
upon authority … upon tradition … upon … established values’ for which Western En-
lightenment reason would brook no tolerance, clearly echoing the epistemological presup-
positions that had now become native to the Western academy. In this context, once ijtihād
became identified with reason – independent, autonomous reason – taqlı̄ d was doomed to
become a juristic black sheep.
Meanwhile, the illocutionary force of Schacht’s valuation of ijtihād and taqlı̄ d transformed
his thesis into a subtle, civilizational indictment. If ijtihād had expired as the result of a con-
scious, trans-generational decision by Muslim jurists to uphold the propriety of ‘unquestion-
ing acceptance’ for literally centuries, one almost had to question the workings of the Arab
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Sherman A. Jackson
Muslim mind. Coupled with the fact that he was writing at a time when a number of Arab
Muslim nations had just emerged from colonial rule, such intimations infused Schacht’s thesis
with a degree of provocation. In response, no scholar would put forth a more challenging
and influential counter-thesis than Professor Wael B. Hallaq. In a series of articles (and later
books), beginning in the 1980s, Hallaq argued strenuously against the notion of any ‘closing
of the gate of ijtihād’.24 For our purposes, however, what is most relevant in Hallaq’s thesis
is not his insistence that ijtihād never ceased but his substantive valuation of ijtihād itself (as
well as taqlı̄d) and the extent to which this was driven by the same basic understanding and
valuation of reason (and mimesis) observed in Schacht. While Hallaq opposed Schacht on
the actual closing of the gate of ijtihād, he essentially agreed with the latter in seeing ijtihād
as a positive institution capable of promoting innovativeness and creative legal thinking,
while viewing taqlı̄d as a negative institution doomed to juristic stagnation and unthinking.
This hampered his ability to see the extent to which my own thesis entailed a refutation of
Schacht, in that it depicted taqlı̄ d as being perfectly consistent with juristic dexterity and
pointed to what I termed ‘the regime of taqlı̄d’ as constituting a more rather than a less de-
veloped stage of Islamic law. Later, Hallaq reversed course on this negative understanding
of taqlı̄ d. But, as we shall see, this was done without ever vindicating his earlier hostility to-
wards it or explaining why I was wrong in recognizing taqlı̄ d’s consistency with skilful legal
thinking a full decade earlier.
2 A third thesis (and its critique)

My thesis on the relationship between ijtihād and taqlı̄ d began with my PhD dissertation on
the Egyptian Maliki jurist, Shihab al-Din al-Qarafi (d. 684/1285), which I completed in
1991.25 There I argued, inter alia, that:
1) while ijtihād never ceased to exist entirely, it gave way to a more pervasive ‘regime
of taqlid’, which established itself sometime between the sixth/12th and seventh/13th
centuries;
2) the reason for this development was not the disappearance of jurists deemed capable of
undertaking ijtihād nor a group decision that all essential questions had been finally set-
tled; and
3) taqlı̄ d neither amounted to the absence of independent reasoning nor to the cessation of
deft legal thought.26
In 1996, I published a revised version of this dissertation under the title, Islamic Law and the
State: The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄.27 In this work, I refined my
thesis on ijtihād and taqlı̄ d, adducing a more explicitly legal explanation of their role and na-
ture, as opposed to the more narrowly pragmatic explication I offered in my dissertation, ‘In
Defense of Two-Tiered Orthodoxy’, where I argued that the legal community settled upon a
regime of taqlı̄d as a means of insulating the law from the abuses of government in collusion
with overly pliant, ambitious or unscrupulous jurists, especially in their capacity as judges.28
If these jurists were entirely free to interpret the law with no binding commitment to prec-
edent or any other authority outside the individual jurist, government, with its free reign to
appoint and dismiss judges at will, could make clean work of this open-ended cornucopia
of legal views.29 In Islamic Law and the State, however, I shifted my focus to authority as law’s
foundational premise and most basic currency. On this analysis, even as taqlı̄ d might continue
to insulate the law from government manipulation, it was more fundamentally valued as the
258
institutionalized means of authenticating legal views and regulating access to this interpretive
legal authority, as something approaching a ‘controlled substance’. 30 Because, however, taqlı̄ d
ultimately trafficked in the authority to back legal interpretations as opposed to the substance
of bygone interpretations themselves, it merely worked to domesticate the creative energies
of the jurists, not to obliterate these. In this capacity, taqlı̄ d took no interest in actively pro-
moting juristic unthinking; it simply imposed a stringent, communally owned and policed
standard of authentication upon those who wished to think juristically and have their delib-
erations accepted into the sanctum of Islamic law.31
Just prior to the release of Islamic Law and the State in 1996, I published an article in a spe-
cial edition of the journal Islamic Law and Society devoted to ijtihād and taqlı̄ d.32 In this article,
I adumbrated my understanding of ijtihād and taqlı̄ d as laid out in Islamic Law and the State,
reiterating that taqlı̄ d was fundamentally about authority, i.e. that what jurists borrowed from
the past was not the substance of existing doctrine but the authority attached to the name
or doctrine of an already established authority figure. In this capacity, I noted, again, that
taqlı̄d was not committed to ‘unthinking’ and was not inconsistent with the continued devel-
opment of the law. I acknowledged that ijtihād continued in a limited capacity, but I invited
readers to resist the tendency to inflate its presence or value, especially given its inability to
back itself with requisite interpretive authority. In this context, I sided with Schacht on the
ultimate ‘triumph’ of taqlid (though not on the closing of the gate of ijtihād) as the dominant
approach to Islamic law after the sixth/12th–seventh/13th centuries, against what I took to
be Hallaq’s insinuation of an unabated continuation of ijtihād.33 I advised against the practice
of searching for any signs of ijtihād and suggested that the ‘mujtahid fı̄ al-madhhab’ be rec-
ognized for what he is: a muqallid.34 For the madhhab, I argued, functioned precisely as the
repository of the kind of interpretive authority any ‘mujtahid’ would need to authenticate his
legal declarations.35
This special issue of Islamic Law and Society was guest-edited by Professor Hallaq. In his
comment on my article in the Introduction to the volume, he criticized my view on ijtihād
and taqlı̄d to the point of rejecting it. In particular, he repudiated the notion that al-Qarafi’s
skilful approach to calibrating the scope of legal injunctions could be considered an ex-
ercise in taqlı̄ d, as I had argued. Instead, al-Qarafi’s articulations had to be considered ijti-
hād, because they were, in Hallaq’s words, ‘creative and innovative’. Indeed, Hallaq insists,
‘No jurist could claim that such proficient knowledge and skillful manipulation of the law
constituted taqlı̄ d’.36 According to him, I had grafted a confused and alien understanding
onto the concept of taqlı̄ d, which the Islamic legal tradition itself would never recognize.
Thus he wrote:
If Jackson wishes to label Qarāfı̄’s activity as taqlı̄ d, then he must acknowledge that taqlı̄ d
was creative and innovative – in clear and obvious ways. But the Muslim legal tradition
systematically refused to define taqlı̄ d in this manner, to put it in the simplest of terms.
Jackson is free to adopt this label, but whatever name we choose to call it, a mule is a
mule. Qarāfı̄’s activity, as described and analyzed by Jackson, was creative, innovative
and led to perceptible changes and adaptation in the law; and this manifestly is the con-
clusion of Hallaq not Schacht.37
Of course, that was precisely Jackson’s point all along: taqlı̄d did not necessarily preempt ‘cre-
ativity’ or ‘innovativeness’ (though one might ask why these, as opposed to ‘understanding’,
judiciousness’ or ‘capturing the law’ should be so highly valued in a system of law, not to
mention a religious law).38
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Sherman A. Jackson
As such, even a closing of the gate of ijtihād need not spell the end of dexterous legal
thought. This is partly why I saw no reason to refute Schacht’s thesis on the closing of the
gate of ijtihād in the first place. For, ijtihād, as I understood it, was primarily about substance,
while taqlı̄ d was about authority. But Hallaq insisted that I had simply misunderstood ijtihād
(and taqlı̄ d), and in so doing was not able to recognize ijtihād’s continued contribution across
Islamic legal history. Of course, part of the problem was that Hallaq and I were operating
on different definitions of ijtihād. As I put it, ‘I do not consider to be ijtihād the application
of the tools of usul al-fiqh to anything other than scripture’.39 For him, by contrast, ijtihād
was apparently the assiduous use of the tools of usul al-fiqh in any interpretive effort, be its
object scripture, the madhhabs or perhaps even factual reality. This enables him to maximize
the number of instances in which jurists could be pointed to as practicing ijtihād; indeed, the
bulk of his proof of the continued exercise of ijtihād (not just in this comment) lay precisely
in instances of ‘al-ijtihād fı̄ al-madhhab’. He apparently saw no difference between scripture as
a primary, religious-cum-legal authority and the madhhabs as a secondary interpretive authority
(which is not to negate that they may also function as a legal authority40). As such, the explicit
connection I make between taqlı̄ d and authority41 appears nowhere in his analysis or critique
of my position. In fact, neither the word nor concept of ‘authority’ appears anywhere in his
comment.
Two years later, in 1998, again in Islamic Law and Society, Hallaq reviewed my book,
Islamic Law and the State, which had appeared later in 1996. While Islamic Law and the State
included a bolder and more circumspect treatment of ijtihād and taqlı̄ d, the main thesis re-
garding these institutions was identical to what I laid out in ‘Taqlı̄ d’. Specifically, authority
was identified as the heart of the matter. Thus, for example, speaking of negative translations
of taqlı̄ d, I wrote:
Such appellations tend not only to cast taqlı̄d in a negative light but also to obscure the
basic logic underlying the institution itself. For such translations assume the content of
what is borrowed to be the most important element in the process, imputing, mean-
while a certain timidity and anti-intellectualism to the very act of looking back … Law
[however] … is not philosophy … ‘It is not Wisdom but Authority that makes a law’.42
In his review, however, Hallaq looked past all of this. Instead, his major focus was on what he
took to be the implications of my agreeing with Schacht on the institutionalization of taqlı̄ d.
Again, he reads me as agreeing with Schacht’s ‘pessimism’ regarding the possibility of dexter-
ous thought in Islamic law as a consequence of my agreeing with him on the spread of taqlı̄d.43
In point of fact, however, I stated explicitly that Schacht was wrong to think that Muslim
jurists deemed themselves incapable of independent interpretation,44 that he was wrong to
see a contradiction between taqlı̄d and independent reasoning,45 and that it was misleading
to shoulder taqlı̄d as an institution with primary responsibility for stagnation and decline in
Islamic law.46 But Hallaq’s obsession with the gate of ijtihād and his linking taqlı̄ d with the
cessation of juristic skilfulness would not allow him to see any of this. Instead he writes,
‘Jackson fails to convince the reader that Qarafi’s creativity should be regarded as falling
within the limits of taqlı̄d’.47 And further, ‘I find it sadly ironic that Qarafi’s brilliant achieve-
ment should be coerced into vindicating Schacht’s views about ijtihād when in fact it stands as
an eloquent and easily demonstrable confirmation of my own’.48 Once again, because Schacht
could only see the cessation of ijtihād as resulting in stagnation, my agreeing with him on the
spread of taqlı̄ d had to mean agreeing with him on the inevitability of ‘ankylose’. Meanwhile,
what Hallaq sees as al-Qarafi’s creative activities could only confirm his thesis, because it was
260
he and not Schacht who argued for the continuation of creative juristic activity. In all of this,
the fundamental role I attribute to authority as the very raison d’être of taqlı̄ d is summarily
ignored. Once again, neither the word ‘authority’ nor the concept of authority appears any-
where in Hallaq’s review, despite its clear and critical centrality to my entire thesis.
For Hallaq (at this stage in his scholarship at least) taqlı̄ d was clearly not simply a negative
category; it was exclusively negative, with no redeeming qualities or creative capabilities at
all. This is why he set out to negate its pervasiveness in the first place, by arguing against the
closing of the gate of ijtihād. His basic intention, as he put it, was, ‘to revise the widely re-
ceived notion that ‘slavish imitation’ controlled the legal system, and that ijtihād had become
irretrievably defunct’.49 In other words, only by proving that ijtihād had not become defunct
could it be proved that creativity continued and that neither the Muslim legal system nor the
Arab mind was controlled by ‘slavish imitation’. The notion of taqlı̄ d being fundamentally
about authority and that in this capacity it could continue to sustain juristic skilfulness, dex-
terity and even innovation, as I had argued all along, was summarily dismissed.
3 An unexplained reversal
Between 1998 and 2001, however, something happened. The very opening lines of Hallaq’s
new book, Authority, Continuity and Change in Islamic Law, read as follows:
To say that authority is the centerpiece of law is merely to state the obvious. Equally
obvious therefore is the proposition that Islamic law – or any other law, for that m atter –
cannot be properly understood without an adequate awareness of the structure of au-
thority that underlies it.50
From here Hallaq goes on to cast taqlı̄ d in a totally a new light. Taqlı̄ d is no longer ‘blind or
mindless acquiescence’; 51 nor does it imply ‘slavish imitation’. Taqlı̄ d is now an ‘undeniably
creative activity’52 that ‘may at times border on the juristic activity associated with ijtihād’.53
Taqlı̄ d is ‘intelligent and creative’.54 In fact, we can now even speak of ‘the achievement of
taqlı̄d’.55 For taqlı̄d is now ‘dynamic and vibrant’,56 ‘far from blind following’,57 perhaps even
‘a reenactment of ijtihād’.58 Whereas it was emphatically wrong for Jackson to consider al-
Qarafi’s ‘innovativeness’ an exercise in taqlı̄ d, jurists could now readily display their acumen
and innovativeness through this medium, so much so that al-Nawawı̄’s taqlı̄ d in one instance
is described as being ‘of the best kind’.59 Indeed, we can even speak of ‘the liberal nature of
taqlı̄d’.60 In his review of Islamic Law and the State, Hallaq had ridiculed Jackson for consider-
ing takhrı̄ j a form of taqlı̄d, it being, according to him, ‘undeniably a form of ijtihād’.61 Now,
however, takhrı̄ j is unproblematically a cognate of taqlı̄ d, not even always distinguishable
from the latter as a means of garnering interpretive authority.62
Surprisingly, however, nowhere in any of this is there any indication that Hallaq had
changed his mind on any of his previously held views. He offers no mea culpas; and neither
Jackson nor anyone else is cited as having contributed anything to his new understanding,
not even negatively in the form of mistakes that alert him to interpretive pitfalls, dead-ends
or wrong turns.63 Nor does he trace the evolution of his own thinking on the matter. Instead,
he proceeds straight away, as if in a spontaneous epiphany, to amass an impressive array of
sources and to subject these to lively, skilful and rigorous analysis, again, entirely driven, we
are left to conclude, by his own unique and unassisted insights. The end result is a masterful
depiction of taqlı̄d (which is now his primary focus instead of ijtihād64) with which no knowl-
edgeable, fair-minded reader could disagree. Indeed, while one might leave it to the field at
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large to determine the extent of Hallaq’s originality or scholarly rectitude, his thesis on taqlı̄ d
in this work is laid out beautifully and most convincingly. In fact, I would consider it to be
the definitive (and certainly most thorough) statement on taqlı̄ d to date, with one important
exception, to which I shall now turn.
4 Taqlı̄ d between epistemic and mimetic authority

According to Hallaq, while it also includes a moral and a religious element, the authority of
the jurist is ‘mostly epistemic’.65 Taqlı̄d, he observes, can range from the mere reproduction
of the predecessors’ doctrines to bordering on activity associated with ijtihād. Most instances,
however, fall between these two extremes.66 It seems clear, however, that the ‘epistemic au-
thority’ of the jurists accrues to them primarily by virtue of their juristic acumen, not by any
other qualities inhering in them as members of the legal tradition. Loyalty to and defence of
school doctrine67 as well as simple recognition of established ‘practice’68 make their contribu-
tions. But it is primarily principles that lie at the core of taqlı̄d, at least in most instances, and
it is his engagement with principles that lies at the heart of the jurist’s epistemic authority.69
Of course, principles can neither speak for nor obviate themselves but must be extracted,
articulated and deployed via reasoned deliberation, especially when the jurists from whom
they are gleaned are dead and unable to confirm what is claimed in their name. To the extent,
as such, that, ‘The authority being transmitted through taqlı̄ d … is one that has at its center
the articulation of principles’,70 the jurist’s individually exercised reason remains at the heart
of his ‘epistemic authority’.71 It is difficult, over the course of his depiction, to ignore or miss
the sense in which Hallaq clearly seeks to place reason in the position of vindicating taqlı̄ d. In
effect, albeit in modified fashion, he appears to hark back to the very same point of departure
evinced by Schacht. Taqlı̄ d is now good for Hallaq for the same reason that ijtihād was good
for Schacht: it is primarily grounded in reason.
But grounding taqlı̄ d primarily in reason, not to mention autonomous reason, raises prob-
lems of its own. If authority is taqlı̄ d’s actual currency, then, as E. D. Watt observes, ‘author-
itative relationships exist between unequals’.72 Persuasion, on the other hand – seemingly the
very point of relying on rationally extracted principles or adducing reasoned arguments –
implies equality: A is equal to B and thus recognizes B’s arguments only to the extent that
they comport with reason, whose authority A essentially recognizes independent of any
reliance on B. In other words, ‘to judge [an] utterance on the merits of its content is not to
follow it as authoritative’.73 For,
once we have worked through a proof or examined the evidence for ourselves, then not
merely have we no further need of an authority as the reason for our belief; rather, it
is no longer possible to accept it on the authority of someone else, for we have become
authorities ourselves.74
But if this is actually the case, it cannot be the principles or the reasons undergirding them
that our source of authority is ultimately providing for us; for our own ability to assess these
principles and reasons suggests that we are equal to our source in this regard. In order for
our source to remain a source of authority, therefore, it must provide us with something
that we cannot provide ourselves. And it is this ability to provide this unique and heteron-
omous something that sustains the relationship of inequality between our authority-source
and ourselves. Clearly, on such a relationship, the authority of the jurists cannot be ‘mostly
epistemic’.
262
We see this very presumption at play in the self-perceptions of pre-modern Muslim jurists
themselves. Al-Suyuti (d. 909/1505), for example, reports that the ‘truly knowledgeable’
(al-muhaqqiqun) among his fellow Shafiʿi masters affirmed that
they did not embrace al-Shafiʿi’s madhhab by way of taqlı̄ d (s․ārū ilā madhhab al-Shafiʿi
lā taqlı̄dan); rather, when they found his method of ijtihād and analogy to be the most
correct, while they themselves also found no alternative to engaging in ijtihād, they fol-
lowed his method (bal lammā wajadū ․tarı̄qahu fı̄ al-ijtihād wa al-qiyās asadd al-t․uruq wa lam
yakun lahum budd min al-ijtihād salakū ․tarı̄qah).75
In other words, al-Shafiʿi did not provide them with the method itself nor with the ability to
examine proofs independently. On the contrary, all of this they were capable of arriving at on
their own. What al-Shafiʿi provided, therefore, i.e. what they could only have gained from
him, was clearly something other than his facility in principled juristic reasoning.
What exactly did these ‘mujtahid’ jurists derive from their affiliation with al-Shafiʿi? Al-
Shafiʿi provided them with a basis of authority, a means of conferring credence upon their
views and signalling to others the propriety of deferring to them. But why was al-Shafiʿi,
who had been dead for centuries, able to confer this kind of authority? There seems to be
something ‘anthropological’ going on here about which I feel unqualified to speak.76 In more
general terms, however, it was precisely the fact that al-Shafiʿi died in the embrace of the aura
cast by what came to be viewed as ‘sacred history’, such that he could be seen as an extension
of the group and era that preserved and defended the universe of values, proper assumptions,
prejudices, points of departure and commitments, indeed the very Weltanschauung, set in
motion by the legacy of the Prophet. It is not simply his acumen as a jurist that is operative
here but his status as a reliable fragment of the Community’s collective memory/authority as
heir to the Prophet’s interpretive infallibility. This might be cast in even bolder relief by the
case of Ahmad b. Hanbal, who, by some early accounts, was not even considered a jurist. Yet,
he would emerge as eponym and authoritative ground of one of the permanently recognized
orthodox schools of law. Herein lies the key to uncovering and appreciating the mimetic
element in the act of following these figures. As E. D. Watt notes, speaking in the context of
ethics, ‘Perhaps goodness is more readily recognized in a good man than in a good ethical
argument’.77 Speaking in the context of Islamic law, we might say, ‘Perhaps the authority of a
juristic pronouncement is more readily recognized coming from a “good” jurist than coming
from a good juristic argument’. The Pious Ancestors (Salaf ), whom al-Shafiʿi, Ibn Hanbal,
the remaining imams and their presumed heirs came to represent, constitute the ‘good jurists’
of the Islamic legal tradition. They represent, in ways both actual and imagined, the cumu-
lative wisdom, memory, experience and presumed sound judgement of the Community,
not to mention its putative connection with the fount of authority in the Prophet himself.
In this capacity, their arguments always contain something beyond the mere substance of
their reasoned justifications. Thus, while the ‘mujtahids’ whom al-Suyuti cites as choosing
to affiliate with al-Shafiʿi may have been equal to the latter in terms of legal acumen, he was
their unequal superior in terms of authority, a fact very much grounded in his position in the
cumulative train of communal experience and presumed connection to the penumbra cast
by the Prophet. For, in this capacity, he could validate (and add assurance to) their views in
ways that they themselves could not. And this authority, this ability to validate (as we saw in
the case of Ibn Hanbal), ultimately transcended his outstanding ability to reason juristically.78
It was perhaps Schacht who prompted us to assume too complete and radical a dichot-
omy between ijtihād and taqlı̄ d, as if the two were mutually exclusive, zero-sum antagonists.
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I suspect that there were two possible sources for this attitude. The first was al-Shafiʿi him-
self, the depths of whose writings Schacht had plumbed more deeply than anyone else to
date. According to Ahmed El Shamsy, al-Shafiʿi strenuously rejected the taqlı̄d of the forma-
tive period, with a particular animus against the mimetic conformism represented by Malik’s
reliance on Medinese practice (ʿamal). For al-Shafiʿi, Malik’s approach was too opaque, too
arbitrary and subjective. Certain Prophetic or Companion reports would be accepted as
authoritative, while others were rejected or ignored, with the only criterion being their
reception or not by the Community. On this approach, ‘One could not trace the reasoning
that led to a particular ruling; one could only follow it blindly’.79 Al-Shafiʿi insisted that
such discretion be replaced with an objective standard of deliberation grounded in a formal
methodology (which in its full-blown form would become usul al-fiqh). This would level the
playing field between all jurists, since, ‘In the absence of total unanimity … an individual ju-
rist’s interpretation of the canon [would be] formally equal to any alternative interpretation,
even if the latter were accepted by all other Muslim jurists’.80 In sum, according to El Shamsy,
al-Shafiʿi called for the abandonment of taqlı̄ d in preference of ijtihād, which he defined as,
‘direct and unmediated engagement with the canonized sources of the law’.81
In this early, formative period, however, the issue was not merely one of interpretation;
the very identity of the ‘canonized sources’ themselves was still being debated, and taqlı̄d
effectively oscillated between following another’s interpretation and following another’s as-
sessment of the validity of a source. (Did the practice of Medina, for example, represent a
valid source or simply an interpretation of the Prophetic legacy?) In this regard, El Shamsy re-
ports that, despite his rejection of taqlı̄ d, al-Shafiʿi himself exercised it in relation to Ahmad
b. Hanbal, ‘by accepting the latter’s judgments regarding the authenticity of hadith reports
without examining the evidence’.82 But once the sources themselves had been ‘canonized’,
the emphasis would obviously shift from the authority of the sources to the authority of one’s
interpretation thereof.83 Here, however, even Shafiʿi jurists, despite their master’s alleged
prohibition of taqlı̄ d, increasingly came to rely on ‘precedent and collective authority as em-
bodied in the works of the school founder and his successors, rather than by the independent
exercise of ijtihād on the basis of the canonized sources’.84
This takes us to the second likely influence on Schacht. Because he identified ijtihād
with ‘independent reasoning’, Schacht may have assumed that reason in Islamic law func-
tioned (or should function) like reason in the modern West, i.e. as its own autonomous, self-
authenticating authority. On this understanding, taqlı̄ d could only be seen as a drag on ijtihād
if not a direct contradiction of it. But reason could not function in this way in Islamic law; it
could not authenticate itself independently, especially not against the collective authority of
the historical Community or Salaf (again a diachronically evolving construct in terms of who
actually constitutes it). On this understanding, taqlı̄ d might be more accurately seen not as a
contradiction of ijtihād but as a necessary complement to it, a supplier of the kind of validation that
reason alone could not (or could rarely) confer upon any legal interpretation. Ijtihād, in other
words, could rarely function as an entirely independent enterprise but would almost always
require the kind of validation lent to it by taqlı̄d. In a real sense, therefore, most instances of
purported ijtihād would almost invariably amount to a hybrid exercise of ‘ijtiqlı̄ d’.85
We see an outstanding instance of this ‘ijtiqlı̄d’ in none other than al-Suyuti, who perhaps
more forcefully than any other jurist claimed the propriety of ijtihād. In al-H ․ āwı̄ li-l-Fatāwı̄,
al-Suyuti is asked a question about whether the fur of dead squirrels and other animals is
rendered ritually pure by means of tanning. The questioner explicitly states that he or she is
not asking about the going opinion in the Shafiʿi school but ‘about what is dictated by the
scriptural proofs and their sound investigation by means of ijtihād’ (ʿammā yaqtad ․ı̄ hi al-dalı̄l
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wa-l-naz ․ar min ․haythu al-ijtihād).86 The questioner goes on to insist that the answer be based
strictly on ijtihād and reflect the view of one entitled to express his independent conclusions
(ʿalā ․tarı̄qat al-ijtihād wa-as․․hāb al-ikhtiyārāt).87 Al-Suyuti’s response is rather lengthy, going on
for several pages, and much of this consists of his individual engagement of the sources. But
this is not devoid of the mention of past scholars from both outside and within the Shafiʿi
school, the latter tendency appearing to increase as he moves towards his conclusion. And
yet, despite this generous citation of past scholars, al-Suyuti concludes his fatwā with the
following words: ‘This is what our investigation and ijtihād have led us to regarding this
question’ (hādhā mā addānā ilayhi al-naz ․ar wa al-ijtihād fı̄ hadhihi al-masʾalah).88 Clearly, even
al-Suyuti saw no absolute contradiction between independent investigation of the sources
and the reinforcement of one’s conclusions via the authority conferred by past jurists. More
important, certainly to his mind, the authority of these past jurists went well beyond being
‘mostly epistemic’.
Conclusion
Even when Muslim jurists exercised their independent reasoning in the form of ijtihād as
unmediated interpretation of the sources of Islamic law, their aim was not simply to produce
a novel or innovative opinion for the sake of novelty or innovation; their ultimate aim was,
rather, a skilful, pragmatic yet principled articulation of the law that could be corporately
recognized and embraced as falling within the sanctum of sharı̄ʿa. As such, ‘creativity’, ‘in-
novativeness’ or ‘originality’ could not stand alone as self-validating criteria in Islamic law as
they might as reflections of the proper use of autonomous reason in the post-Enlightenment
West. The approach to Islamic law that privileges originality, creativity and the like reflects
not simply the tendency to import non-legal criteria into the study of law but the superim-
position of a very particular understanding and valuation of reason itself, one that sees the
latter as entirely self-authenticating and, in turn, pits it against tradition. Both Schacht and
Hallaq (in his earlier writings) reflect this conceptualization of reason as the prism through
which ijtihād (and taqlı̄ d) is understood and valuated. In his later writings, meanwhile, Hallaq
appears not so much to abandones this conceptualization or valuation of reason as he does to
transfer it onto taqlı̄d. This, however, obfuscates the role of mimesis as the ultimate ground
and conduit of authority that go to the core of this Islamic legal institution.
It was reportedly Kant who elevated reason as episteme, which is grounded in universal
principles, over the Aristotelian ideal of phronesis, or practical reason, which reclines upon the
‘ethos, the cultural and historical conditions current in the community’.89 Paul Ricoeur char-
acterized Kant’s notion as ‘one of the most dangerous ideas’90 in early modern history. Dan-
gerous or not, applying such a conception of reason to Islamic law can only distort the latter.
For it can hardly accommodate the role and value of mimesis, as the medium through which
the ‘ethos’ of the Muslim community in history, as heir to the Prophetic legacy, is preserved,
deployed as authority and then augmented and perpetuated as such. Mimesis functions as a
central element in Islamic law, not instead of but alongside independent reasoning – or perhaps
we should say ‘encumbered reasoning’ – even as the modern West may view any attachment
to the past as a contradiction of reason tout court. Taqlı̄ d in this capacity, far from contradict-
ing independent reasoning, might be seen as functioning, at least for pre-modern jurists, as
that which ultimately kept Islamic law ‘Islamic’ in the face of a potentially unending stream
of originality and innovativeness on the part of individual jurists. Meanwhile, the authority
of the jurists themselves was far more ‘phronetic’ (in the above-cited sense attributed to
A ristotle) than it was epistemic (in the sense attributed to Kant).
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I would like to end with a story, admittedly apocryphal, that I once heard from a teacher
of mine. My hope is that it will highlight a dimension of mimesis as part of the DNA or
‘super-context’ of Islamic law that is no less present and operative for all the difficulty one
encounters in trying to capture it in words. The story revolves around the celebrated faylasūf
Ibn Sina (d. 429/1037). A student of his once asked him why, as the greatest philosopher in the
world, he didn’t simply start a new religion. Ibn Sina casually dismissed the lad with a mildly
impatient, ‘You don’t understand’. ‘What do you mean I don’t understand?’ protested the stu-
dent. ‘Given your stature and acumen, people would flock to you.’ Ibn Sina simply repeated his
response: ‘You don’t understand.’ The next morning, the two arose and entered the courtyard
to perform ablutions for the morning prayer. Noticing that a thin layer of ice had formed over
the water trough, Ibn Sina advised the youth not to use this water but to use earth (tayammum)
instead. While acknowledging his master’s kind consideration, the boy rejected this advice and
summarily moved to crack the ice and perform ablution. At this Ibn Sina exclaimed, ‘Maybe
now you can understand. He’s been dead for over four hundred years, and you would still prefer
to do what you think would connect you to him rather than listen to me’.91
Notes
1 ‘Philosophers of the late eighteenth century had one very good reason for questioning the authority
of reason: it seemed as if modern science and philosophy were undermining morality, religion, and
the state’. See F. C. Beiser, The Fate of Reason: German Philosophy from Kant to Fichte (Cambridge,
MA: Harvard University Press, 1987), 1. Further: ‘[T]heir [the philosophers’] faith in reason was
largely based upon the assumption that reason could justify morality, religion, and the state. Never
would they have dared to trust reason had they imagined that it would destroy these things’.
Ibid., 2.
2 See R. H. Popkin, The History of Skepticism from Erasmus to Descartes (Assen, The Netherlands:
Koninklijke Van Gorcum & Comp, 1960), 203.
3 On Hamann, see Isaiah Berlin’s excellent work, The Magus of the North (New York: Farrar, Straus
and Giroux, 1993).
4 On ‘depth’ and ‘profundity’, see I. Berlin, The Roots of Romanticism, ed. H. Hardy (Princeton, NJ:
Princeton University Press, 1999), 118–19: ‘According to the Romantics – and this is one of their
principal contributions to understanding in general – what I mean by depth, although they do not
discuss it under that name, is inexhaustibility, unembraceability … [I]n the case of works which are
profound the more I say the more remains to be said. There is no doubt that, although I attempt to
describe what their profundity consists in, as soon as I speak it becomes quite clear that, no matter
how long I speak, new chasms open. No matter what I say I will always have to leave three dots at
the end.’
5 This was in stark contrast to the pre-modern Muslim recognition of 1) reason, 2) the senses, and
3) reports of the truthful (khabar al-s․ādiq) as the bases of knowledge. Interestingly, despite his rep-
utation as an anti-Sufi, Ibn Taymiyya would add ‘spiritual / supersensory epiphany’ or ‘unveiling’
(kashf ) to this list of valid means of knowledge. See, e.g., his Majmūʿat al-Rasāʾil wa-l-Masāʾil, 2 vols,
ed. M. R. Rid․ā (Beirut: Dār al-Kutub al-ʿIlmiya, 1421/2001), 2: 167.
6 Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago: Chicago University Press,
1990), 20. See also C. Shannon, Conspicuous Criticism: Tradition, The Individual, and Culture in Modern
American Social Thought (Scranton, PA: University of Scranton Press, 2006), 194: ‘In rejecting the
priority of the moral community as a guarantor of rationality, the modern turn to epistemology has
fostered a social ideal of an isolated individual consciousness as existing somehow prior to or apart
from a community of inquiry.’
7 Cited in E. D. Watt, Authority (New York: St Martin’s Press, 1982), 47.
8 Watt, Authority, 47.
9 Cited in T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: S tanford
University Press, 2003), 52.
10 Asad, Formations, 52.
11 Watt, Authority, 47.
266
12 Toulmin, Cosmopolis, x.
13 There is an impetus, in other words, to seek ‘meaning’ in all acts and doctrines, on the assumption
that the only activities that can be valuable are those to which we can impute some rationally veri-
fiable ‘meaning’. No activity can be valuable in and of itself. Nor can any doctrine (e.g. that God has
a face or a hand) have any value beyond its rationally explicable meaning. But ‘meaning’ may not be
the only possible validator of actions or beliefs. ‘The world of friendship – of drinking and talking,
working and playing, loving and hating – may bring happiness, or it may not; in neither case does it
bring “meaning.” It is no less important for being, in a sense, meaningless.’ See Shannon, Conspic-
uous Criticism, 202–3. As for such doctrines as God’s face or hand, their value might lie not in their
‘meaning’ per se but in their profundity and ability to intimate the ineffable element of religion. For
more on this point, see my Islam and the Problem of Black Suffering (New York: Oxford University
Press, 2012), 130.
14 Berlin, Roots, 81–2.
15 This is most glaringly reflected in scholarly investigations into the role of reason in Islam, where
the tendency is to superimpose Western Enlightenment reason onto Islam and then interpret-
cum-evaluate the latter through this prism. Thus, Muʿtazilı̄s, e.g. are reputedly progressive, as the
most committed to reason, despite the clear social embeddedness of the reason they invoke and
the more ‘orthodox’ Ashʿari criticism of them for not being a priori enough in their reasoning.
Meanwhile, Ibn H ․ anbal and the Traditionalists are at times cast as not using reason at all, despite
.
such displays as Ibn H ․ anbal’s in al-Radd ʿalā al-Zanadiqa wa-l-Jahmiyya, not to mention the later Ibn
Taymiyya. In law, the partisans of raʾy (reason) are contrasted with the partisans of hadith (tradi-
tion), and the H ․ anafı̄s are cast as the vanguard of the partisans of raʾy. But the early H ․ anafı̄s were
actually more tied to textual sources of hadith than were the ‘traditionalist’ Medinese, who also
used raʾy quite unsparingly. Yet, this questionable opposition has given rise to such myths as the
‘Great Synthesis’ between Traditionalism and Rationalism, which allegedly flowed into Islamic
law. Clearly, it is time to excavate Islam’s own understanding(s) and valuation(s) of reason from
Muslim tradition itself and then to read that tradition through the prism of these understandings
and valuations.
16 The only scholar I know who has explicitly noted the critical role of mimesis in the Islamic legal
tradition is A. El Shamsy. According to him, the pre-Shāfiʿı̄ tendency was to rely on the com-
munity as custodian of ‘an organic stream of normative tradition flowing continuously from the
prophetic time to the present’. This mimesis was supremely valued in Medina, less so in Iraq.
According to El Shamsy, it was the contribution of al-Shāfiʿı̄ to reject reliance on this essentially
uncertain repository of communal wisdom and practice in favour of formally constituted traditions
from the Prophet directly. At al-Shāfiʿı̄’s hands, ‘The communal activity of mimesis gave way to
the individual task of hermeneutics’. See A. El Shamsy, The Canonization of Islamic Law: A Social
and Intellectual History (Cambridge: Cambridge University Press, 2013), 5 and esp. 71 for the above
quotes. El Shamsy also notes that al-Shāfiʿı̄’s followers would eventually resume the practice of
taqlı̄d and hence mimesis, albeit with a modified thrust and mission.
17 J. Schacht, An Introduction to Islamic Law (New York: Oxford University Press, 1964), 70–1. Schacht
was not the first to affirm the closing of the gate of the ijtihād. For an earlier assertion, see H. A. R.
Gibb, Mohammedanism (London: Oxford University Press, 1949), 97–8.
18 One might ask, for example, how one could explain, apply and interpret a doctrine without ques-
tioning such things as its meaning or scope. Indeed, what is meant by ‘doctrine’, given that the
schools routinely consisted of several, competing views? And does the acceptance of ‘the doctrine
as it had been laid down once and for all’ suggest that, outside analogy, quotidian developments
beyond the pale of this ‘doctrine’ were to remain unaddressed? Did the jurists look at the doctrines
of the schools as the early Z ․ āhirı̄s looked at scripture? On the Zahiri attitude, see A. K. Reinhart,
Before Revelation: The Boundaries of Muslim Moral Thought (New York: State University of New York
Press, 1995), 16: ‘Revelation’s writ ran to what it explicitly addressed and no more … it applie[d]
strictly, but it applied [in relative terms] to very little’. Finally, without accounting for some pal-
pable change in the nature and function of the institutions that produced those deemed capable of
‘independent reasoning’ (or, perhaps, some radical disruption in the gene pool or a seismic shift
in vogue), how are we to explain the widespread acceptance that no one was any longer capable of
acquiring such qualifications?
19 ‘The Schools of Law and Later Developments in Jurisprudence’, Law in the Middle East, ed.
M. K hadduri and H. Leibesny (Washington, DC: The Middle East Institute, 1955), 75.
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Sherman A. Jackson
20 ‘Classicisme, traditionalism et ankylose dans la loi religieuse de l’Islam’, Classicisme et decline culturel
dans l’histoire de l’Islam, ed. R. Brunschvig and G. E. von Grunebaum (Paris: G. P. Maisonneuve et
Larose, 1977), 11.
21 Schacht, Introduction, 211.
22 ‘Presentation of Award to Second Recipient, Joseph Schacht’, Theology and Law in Islam (Wies-
baden: Otto Harrasowitz, 1971), 1.
23 Other renderings of taqlı̄d included: ‘blind following’ (N. J. Coulson, A History of Islamic Law
( Edinburgh: Edinburgh University Press, 1964)); ‘servile imitation’ (G. Makdisi, The Rise of Col-
leges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981),
199); ‘unreasoning acceptance’ (A. K. Lambton, State and Government in Medieval Islam (Oxford:
Oxford University Press, 1981), 12).
24 Of course, the most important and influential of these was ‘Was the Gate of Ijtihad Closed’, Inter-
national Journal of Middle East Studies 16:1 (1984): 3–41. Among Hallaq’s arguments was that ijtihād
could not end, as it ‘constituted the only means by which jurists were able to reach the judicial judg-
ments decreed by God’ (p. 4); ‘the demands of legal theory were relatively easy to meet and they
facilitated rather than hindered the activity of ijtihad’ (p. 4); and ‘ijtihad was not only exercised
in reality, but … all groups and individuals who opposed it were excluded from Sunnism’ (p. 4).
Incidentally, we might note the view of Ibn ʿAbd al-Shakur that the debate around ijtihād applied
only to the period before the appearance of the signs of the end of time (ashrāt․ al-sāʿa). After that, for
a period of indeterminate duration, the disappearance of mujtahids was a point of unanimous con-
sensus (mujmaʿ alayh). See Muh․ ibb al-Dı̄n Ibn ʿAbd al-Shakūr, Musallam al-Thubūt, 2 vols (printed
beneath al-Ghazali’s al-Mustasfā) (Bulaq: al-Mat․baʿa al-Amiriyya, 1322/1904), 2:399.
25 Sherman Jackson, ‘In Defense of Two-Tiered Orthodoxy: A Study of Shihāb al-Dı̄n al-Qarāfı̄’s
Kitāb al-Ih․ kām fı̄ Tamyı̄z al-Fatāwā ʿan al-Ah
․ kām wa Tas․arrufāt al-Qād․ ı̄ wa al-Imām’ (PhD dis-
sertation, University of Pennsylvania, 1991).
26 See Jackson, ‘Defense’, 5–15 and passim.
27 Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄
28 Jackson, ‘Defense’, 13, 131–5.
29 Earlier, W. M. Watt had put forth a similar view, without fleshing out its full implications. See his
Islamic Political Thought (Edinburgh: Edinburgh University Press, 1968), 73–4. Later, M. Fadel quite
convincingly related the adoption or perhaps continuation of taqlı̄d to concerns for the ‘rule of law’
and the ‘rule of recognition’. See his ‘The Social Logic of Taqlı̄d and the Rise of the Mukhtas․ar’,
Islamic Law and Society, 3:2 (1996): 193–233.
30 By ‘interpretive legal authority’ I mean the authority that confers legitimacy upon interpretations
of the law in contradistinction to the authority to promulgate the law initially or to implement it
once promulgated and interpreted. Meanwhile, my work on al-Qarāfı̄ alerted me to the dangers of
an over-inclusive understanding of the scope of this interpretive legal authority, namely the risk of
jurists taking it as a means to back demonstrably non-legal views. This prompted al-Qarāfı̄ to insist
on an important distinction between proper and improper taqlı̄d. See n. 38 below.
31 See Islamic Law and the State, xxiv, xxv, xxxi, xxx–xxxi, xxxiii and esp. 80–3.
32 ‘Taqlı̄d, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Mut․laq
and ʿĀmm in the Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄’, Islamic Law and Society, 3:2 (1996):
165–92.
33 Hallaq would later insist that I had inflated his claim, that though he argued for the continued prac-
tice of ijtihād he never claimed that it became or remained the dominant trend. See Wael Hallaq, An
Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 131. To the extent
that my arguments implied this inflated reading of him, I was mistaken. Mea culpa.
34 In his description of ijtihād, al-Zarkashı̄ asserts that, while memorizing rulings and seeking to
extract them from the texts of law manuals may be ‘called’ ijtihād, this is only linguistically speak-
ing, not according to the technical language of law ( fa-huwa lughatan lā is․․tlāh ․an). See Badr al-Dı̄n
Muh․ ammad b. Bahādir b. ʿAbdullah al-Zarkashı̄, Al-Bah․r al-Muh․ı̄t․ fi Us․ūl al-Fiqh, 2nd edn, 6 vols,
ed. A. al-ʿAni, ʿA. S. al-Ashqar and ʿA. Abu Ghudda (Kuwait: Wizārat al-Awqāf wa-l-Shuʾun
al-Islamiyya, 1413/1992), 6:197. Similarly, in his study (and translation) of a late pre-modern anon-
ymous manuscript on taqlı̄d, Lutz Wiederhold cites his source as holding that one who has not
attained the level of being able to extract all rulings directly from the sources (mujtahid mut․laq) must
resort to taqlı̄d. In other words, the mujtahid fi al-madhhab is a muqallid. See L. Wiederhold, ‘Legal
268
Doctrines in Conflict: The Relevance of Madhhab Boundaries to Legal Reasoning in the Light of
an Unpublished Treatise on Taqlı̄d and Ijtihād’, Islamic Law and Society 3:2 (1996), 270 (290 for the
Arabic, where the author mentions taqlı̄d explicitly).
35 See ‘Taqlı̄d’, 169–73.
36 Hallaq, ‘Introduction’, 133.
37 Ibid. (emphasis in original).
38 A fair amount of creativeness and innovation would emerge, however, out of the judicious distinc-
tion maintained between questions of law and questions of fact. It is primarily on this basis that
al-Qarāfı̄ makes an explicit distinction between proper and improper taqlı̄d. See my Islamic Law and
the State, 123–39. In such light, I can hardly concur with the view of A. Nakissa: ‘Research was not
seen as an important goal. Muslim scholars believed that just as there is no progress or creativity
in grammar, there is none in law’. See A. Nakissa, ‘An Epistemic Shift in Islamic Law’, Islamic Law
and Society 21 (2014): 212. For an interesting example of research (and creativity) on the part of
pre-modern jurists, see al-Qarāfı̄, al-Furūq, 4 vols (Beirut: ʿAlam al-Kitāb, n.d.), 1:218, where he
speaks of observing the actual behaviour of hashish smokers at their gatherings, as a propaedeutic
to giving his opinion on the legal status of smoking hashish.
39 See ‘Taqlı̄d’, 167 n. 5. In response, Hallaq almost appears to confuse matters intentionally. Imme-
diately after citing my view he writes: ‘But Calder, in the article in this issue, and in his earlier
study of Sarakhsi, has dealt a coup de grȃ ce to any claim that ijtihād – in the sense of “clear and open
advocacy of views – established in the schools of the mujtahid-Imams” ceased to dominate after the
sixth/twelfth century on’. ‘Introduction’, 132. Of course, there is a clear and obvious difference
between ‘clear and open advocacy of views’ and limiting the application of the tools of usul al-fiqh
to scripture.
40 In other words, on settled issues, one may accept, for example, the going opinion of a madhhab as
‘the law’. In this capacity, the madhhab functions as a legal authority. When it comes unprecedented
issues, however, the madhhab functions more as an interpretive authority to back or authenticate
novel interpretations.
41 At ‘Taqlı̄d’, 171–2, for example, I wrote, as a corrective to the view of both Hallaq and Schacht:
‘[T]he tendency to view taqlı̄d in negative terms appears to turn on the assumption that the content
of what was borrowed from the past is the most important and operative element in the process. If,
however, one accepts the idea that it is essentially not substance but authority that validates legal
interpretations, one could more easily entertain the possibility that it was essentially the search for
established sources of authority that spawned the whole movement of looking back in the first place’
(emphasis in original). This same view was repeated in Islamic Law and the State.
42 Jackson, Islamic Law and the State, 80.
43 Hallaq, ‘Review of Jackson’, 129.
4 4 Jackson, Islamic Law and the State, 80–81.
45 This was actually on two levels. First, as taqlı̄d trafficked in authority not substance, it did not, in
and of itself, pre-empt the production of substantive innovations, even if it did complicate the pro-
cess of validating these. Second, al-Qarafi draws a clear distinction between law and fact and argues
that taqlı̄d is valid only on questions of law. On questions of fact, therefore, one could only rely on
independent reasoning. On this point, see Islamic Law and the State, 127ff.
46 Jackson, Islamic Law and the State, 101.
47 Hallaq, ’Review of Jackson’, 129.
48 Ibid., 130.
49 Hallaq, ‘Introduction’, 131. Hallaq notes here that he dealt more directly with taqlı̄d in a separate
article, ‘“Ifta” and Ijtihad in Sunni Legal Theory: A Developmental Account’, Islamic Legal Inter-
pretation, ed. M. K. Masud, B. Messick and D. S. Powers (Cambridge, MA: Harvard University
Press, 1996), 33–43. While this article addresses the question of mujtahids sitting as muftı̄s, it does
not actually deal with the substantive definition, nature and function of taqlı̄d. On p. 34, he does
make a passing reference to taqlı̄d as ‘following the authority and doctrines of others’ in the context
of discussing the position of Abu al-Husayn al-Basri (d. 436/1044) who, like Hallaq at the time,
apparently sees taqlı̄d as negative. At any rate, this connection between taqlı̄d and authority plays no
role whatever in Hallaq’s analysis until, as we shall see, it appears abruptly, inexplicably and entirely
as his singular discovery in 2001.
50 W. B. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University
Press, 2001), ix.
269
Sherman A. Jackson
51 Ibid., ix.
52 Ibid., 103.
53 Ibid., 88.
54 Ibid., 103.
55 Ibid., 119.
56 Ibid., 120.
57 Ibid., 119.
58 Ibid., 103.
59 Ibid., 103.
60 Ibid., 109.
61 Hallaq, ‘Review of Jackson’, 130.
62 Hallaq, Authority, 43–54.
63 Jackson is mentioned in a footnote on page 83, where Hallaq registers his disagreement with him
on the meaning of a passage from Ibn Abı̄ al-Damm: ‘It will be noted that on the interpretation of
this passage, I disagree with Sherman Jackson’. Otherwise, there is no attempt in Authority, Conti-
nuity and Change to reconcile his new view with such earlier statements as, ‘By building on Qarāfı̄’s
idiosyncratic approach, Jackson has formed a distorted view of a central problem in Islamic legal
history, namely, ijtihād and taqlı̄d’. ‘Review of Jackson’, 129.
64 Later, however, one gets the impression that ijtihād has re-acquired its centrality in Hallaq’s per-
ception of Islamic law. For example, he writes in The Impossible State: Islam, Politics and Modernity’s
Moral Predicament (New York: Columbia University Press, 2013), 58: ‘In the majority, therefore, the
laws, rules and regulations of the Sharı̄ʿa are largely the result of ijtihād, a domain of interpretation
that rests on probability. Every accomplished jurist could exercise ijtihād, and two or more could
arrive at different conclusions on the same problem with no one knowing but God which mujtahid
(i.e. jurist conducting ijtihād) had arrived at the truth.’
65 Hallaq, Authority, ix. This perspective has continued into Hallaq’s more recent scholarship. See,
e.g., Sharı̄ʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 67,
70 and passim. Indeed, his endorsement of the notion of Muslim jurists’ being possessed of ‘epis-
temic authority’ seems to have inspired a younger generation of scholars and students to invoke the
construct without pause or question.
66 Hallaq, Authority, 88.
67 Ibid., 103, 113.
68 Ibid., 111.
69 On the centrality of principles to taqlı̄d, see ibid., 90, 92, 94, 95, 96, 98, 99 and passim.
70 Ibid., 98.
71 In keeping with his commitment to circumspection, Hallaq does note: ‘True, the majority of the
jurists did not occupy themselves with the matter in which these principles were derived, although
it remains true that many of those evolved with time and cannot be traced to a direct source or a
conscious act of ijtihād. But the great majority of them, as is attested in the pages of hundreds of
treatises written on the subject, understood the significance of the principles and knew how to
apply them. For they were muqallids, and this is precisely what taqlı̄d meant’. Ibid., 98–9. We will
return to this point shortly.
72 E. D. Watt, Authority (New York: St Martin’s Press, 1982), 27. We should note the distinction
between the Latin auctoritas (from which our modern ‘authority’ derives) and potestas. Whereas the
holder of potestas is obeyed, the holder of auctoritas is simply deferred to. Obviously, Muslim jurists
qua jurists are only assumed to have auctoritas. See Watt, Authority, 11–18.
73 Ibid., 39.
74 Ibid., 47.
75 Al-Suyuti, Al-Radd ʿalā man akhlada ilā-l-ard ․ wa-jahila anna al-ijtihād fi kull ʿAs․rin fard․ (Cairo: Mak-
tabat al-Thaqāfa al-Diniyya, n.d.), 40. Hallaq cites an identical claim by the Shafiʿi jurist Abu Is-
haq al-Isfaraʾini (d. 418/1027). See Hallaq, Authority, 9. Al-Suyūt․ı̄, meanwhile, cites several other
scholars from other schools who express the same idea. See also Hallaq, ‘Gatae’, 10–11, where he
describes the practice of jurists subsuming their ‘highly original views’ under pre-existing author-
ities. At that time, however, Hallaq did not appear to see this as constituting taqlı̄d. Instead, he
writes, ‘the standard doctrine of Sunni Islam’ was that ‘taqlid is to be used only by the commoner
(ʿāmmiyy) and by those for whom the exercise of ijtihad is impossible’. Hallaq, ‘Gate’, 12.
76 E. D. Watt points out, for example, that there is a mutually beneficial dialectical relationship be-
tween the authority figure and those who adopt him or her as an authority. As those who adopt the
270
authority figure benefit by placing the latter’s authority behind their cause, the authority figure’s
authority is also increased and solidified with each act of being invoked as an authority, which in
turn increases his or her utility to those who take or follow him or her as an authority. See Watt,
Authority, 11–12.
77 Ibid., 57.
78 His excesses aside, one is reminded in this regard of the early American political thinker, John Dickin-
son: ‘Experience must be our only guide. Reason may mislead us. It was not Reason that discovered
the singular and admirable mechanism of the British Constitution. It was not Reason that discovered
or even could have discovered the odd and in the eyes of those who are governed by reason, the ab-
surd mode of trial by jury. Accidents probably produced these discoveries, and experience has given
sanction to them. This then was our guide’. See M. E. Bradford, A Better Guide than Reason (New
Brunswick, NJ: Transaction Publishers, 2014), 93. I should note that I would put much distance
between the Islamic legal tradition and some of the conservative views expressed in this book.
79 See A. El Shamsy, ‘Rethinking Taqlı̄d in the Early Shafiʿi School’, Journal of the American Oriental
Society 128:1 (2008): 4. Of course, a supporter of Malik could argue that it was actually al-Shafiʿi
who demanded ‘blind’ following of these reports with no criterion other than their formal va-
lidity as arbiter. Whereas al-Shafiʿi proposed a ‘scriptural empiricism’ of sorts, Malik recognized
extra-scriptural sources and criteria to which one could appeal one’s case.
80 Ibid., 7.
81 Ibid., 16.
82 Ibid., 8. Hallaq observes, however, that al-Shāfiʿı̄ often performed taqlı̄d of earlier jurists on ques-
tions of substance and not merely the authority of presumptive sources. See Watt, Authority, 38.
83 This oscillation between the identity of the source-canon and the identity of a proper interpre-
tation thereof seems to be reflected in some of the jurists’ statements on ijtihād and taqlı̄d cited by
al-Suyūt․ı̄ in al-Radd. One also wonders how much the consistently negative animus towards taqlı̄d
in the rhetoric of mainstream Sunnis owes to confrontations in the formative period with Shiites
and the unassailable authority they attribute to the Imām. See, e.g., al-Ghazālı̄, Al-Mustasfā min
ʿIlm al-Usul, 2 vols (Bulāq: Mat․baʿa al-Amiriyya, 1322/1904), 2: 387, where, in rejecting taqlı̄d, he
mentions that, ‘the ․h ashwı̄yah (a catch-all for fidiestic traditionalists) and the taʿlı̄mı̄yah (a reference
to Ismāʿı̄ lı̄ Shiites) believe taqlı̄d to be the way to knowledge of the truth’.
84 El Shamsy, ‘Rethinking’, 13–14.
85 In his later work, Professor Hallaq expresses what appears, prima facie, to be an identical con-
clusion: ‘[I]f ijtihād has a positive image, it is ultimately because of the fact that it is backed up by
taqlı̄d. To put it more precisely, except for the category (or type) of the imam, ijtihād would be an
undesirable practice if it were not for taqlı̄d’. See Hallaq, Authority, 21. My argument, however,
is not that ijtihād would be undesirable but that it would be ineffective without taqlı̄d. Moreover,
I question Professor Hallaq’s tendency to downplay the connection between authority and mimesis
by tying juristic authority so tightly to juristic reasoning. For example, speaking of al-Shāfiʿı̄ he
writes, ‘In order to become the final authority in his school, Shafiʿi was required to shed the image
of a muqallid’. Auth․ority, 39. On al-Shāfiʿı̄’s display of juristic reasoning, Hallaq recognizes him as
a fully-fledged jurist. Malik, by contrast, is deemed to be merely ‘a jurist of a sort’. Authority, 40.
But Mālik (like Ibn Hanbal) was certainly no less a juristic authority than was al-Shāfiʿı̄; and it was
precisely his ‘taqlı̄dic’ (read mimetic) connection to the normativeness presumed to inhere in the
early community that bolstered his status in this regard. None of this is to deny a perduring tension
between ijtihād and taqlı̄d over the centuries. For example, as El Shamsy notes, ‘Whereas Shāfiʿı̄
scholars before him had accepted the existence of two parallel but incommensurate discourses – the
prohibition of taqlı̄d in usul and the authority of precedent in fiqh– Ibn S․alāh [d. 642/1244] com-
mitted himself to the binary and exclusive opposition of ijtihād and taqlı̄d’. See ‘Rethinking’, 21.
86 Jalāl al-Dı̄n al-Suyūt․i, Al-Hāwı̄ li-l-Fatāwı̄ fı̄ al-Fiqh wa-ʿUlūm al-Tafsı̄r wa-l-H
․ adı̄th wa-l-Nah․w wa-l-
Iʿrab wa-Saʾir al-Funun, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 1:11.
87 Al-Suyuti, Al-Hawi li-l-Fatawi fi al-Fiqh wa-ʿUlum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Iʿrab wa-Saʾir
al-Funun, (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988), 1: 11–12.
88 Ibid., 1: 23.
89 C. Mouffe, The Return of the Political (New York: Verso, 1993), 13–14.
90 Mouffe, Return, 14.
91 This mimetic spirit (in general and not with specific reference to Islamic law) is described and noted
for its significance by J. Fueck in his classic article, ‘The Role of Traditionalism in Islam’, in Studies
on Islam, trans. and ed. M. L. Swartz (New York: Oxford University Press, 1981), 99–122.
271
Sherman A. Jackson

Asad, Talal. Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University
Press, 2003).
Coulson, Noel J. A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964).
Fueck J. ‘The Role of Traditionalism in Islam’. In Studies on Islam, trans. and ed. M. L. Swartz (New
York: Oxford University Press, 1981).
Hallaq, Wael B. ‘Was the Gate of Ijtihad Closed?’. International Journal of Middle East Studies, 16:1 (1984):
3–41.
Hallaq, Wael B. Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University
Press, 2001).
Jackson, Sherman. ‘In Defense of Two-Tiered Orthodoxy: A Study of Shihāb al-Dı̄n al-Qarāfı̄’s Kitāb
al-Ih․ kām fı̄ Tamyı̄z al-Fatāwā ʿan al-Ah․ kām wa Tas․arrufāt al-Qād․ ı̄ wa al-Imām’ (PhD disserta-
tion, University of Pennsylvania, 1991).
Jackson, Sherman. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄
Jackson, Sherman. Islam and the Problem of Black Suffering (New York: Oxford University Press, 2012).
Lambton, Ann K. State and Government in Medieval Islam (Oxford: Oxford University Press, 1981).
Makdisi, George. The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: E dinburgh
Masud, M. K., B. Messick and D. S. Powers. Islamic Legal Interpretation (Cambridge, MA: Harvard
Shamsy, Ahmed el. ‘Rethinking Taqlı̄d in the Early Shafiʿi School’. Journal of the American Oriental
Society 128:1 (2008).
Shamsy, Ahmed el-. The Canonization of Islamic Law: A Social and Intellectual History (Cambridge:
Cambridge University Press, 2013).
Suyuti, Jalal al-Din al-. Al-Hawi li-l-Fatawi fi al-Fiqh wa-ʿUlum al-Tafsir wa-l-Hadith wa-l-Nahw wa-l-Iʿrab
wa-Saʾir al-Funun, 2 vols (Beirut: Dar al-Kutub al-ʿIlmiyya, 1408/1988).
Suyuti, Jalal al-Din al-. Al-Radd ʿala man Akhlada ila al-Ard wa-Jahila anna al-Ijtihād fi Kull ʿAsrin Fard
(Cairo: Maktabat al-Thaqafa al-Diniyya, n.d.).
272
Part III
History and interpretation
Society and politics
15
Legal traditions of the ‘Near East’
The pre-Islamic context
Lena Salaymeh
Introduction
No legal tradition begins or exists in a vacuum.1 Islamic law, like any other legal tradition,
began as (and continues to be) a fusion of legal traditions. Thus, the story of Islamic law
begins before Islam began, in the legally pluralist environment of its beginning. This legal
environment will be explored in two overlapping geographic spaces. First, I will focus on the
Arabian Peninsula, the proximate surrounding of the Islamic movement’s beginnings. Sec-
ond, I will refer to the diverse legal traditions of ‘Near Eastern’2 legal culture, of which Ara-
bian legal traditions were a part.3 As for the temporal scope, I will concentrate on the early
seventh century, specifically, the decades that immediately preceded the Islamic movement;
thus, I will not include ancient ‘Near Eastern’ legal traditions (such as the laws of Hammu-
rabi).4 The basic premise of this chapter is that late antique Muslims built and modified their
legal traditions while adapting their antecedent (pre-Islamic) and their neighboring legal
traditions. Pre-Islamic laws became Islamic and fused with new laws in a process that may be
likened to a craft: the artwork of Islamic legal recycling.5
The recycled component parts of Islamic legal artwork are not, however, distinguishable
for at least three reasons. First, for the most part, the pre-recycled materials used in Islamic
legal recycling simply cannot be identified. That is, when we examine a specific Islamic
law, we usually cannot determine which pre-Islamic laws were recycled. Second, many pre-
recycled materials do not ‘belong’ to only one legal tradition. Most pre-Islamic laws were
part of a shared legal culture; categorization of laws as belonging to one legal tradition is of-
ten based on the idiosyncratic preservation of historical sources and on neglect of antecedent
and shared laws. (This is particularly evident in the overemphasis of biblical law as compared
to ‘Near Eastern’ customary traditions.) Third, the recycled artwork of Islamic law is not
static, but rather fluid and dynamic. A pre-Islamic law that might appear to have been applied
as Islamic law in the late seventh century may disappear by the eighth century. In short, the
recycled art of Islamic law is too hybrid and too shifting to be measured in terms of pre-Islamic
legal traditions. Thus, I do not quantify which or how much pre-Islamic legal traditions were
recycled in the craftwork of Islamic law.
It should be clarified, however, that I am not arguing against the exercise of analysing
particular Islamic legal traditions in relation to pre-Islamic legal traditions. Indeed, much of
275
Lena Salaymeh
my scholarship has done precisely that.6 Nevertheless, we need to recognize the limitations
to this type of inquiry: examining legal doctrines from two (or more) legal traditions conveys
information about the legal culture or the socio-historical spaces of the doctrines, not about
how Islamic law ‘borrowed’ pre-Islamic law. The recycled art of the Islamic legal tradition
cannot be calculated in terms of pre-Islamic materials, but it can be appreciated as a holistic
piece. We can and should consider the contours of pre-Islamic and Islamic legal traditions for
what they convey about the region’s legal culture, about the socio-historical dynamics that
shape law, and about pre-modern legal traditions more broadly.
Islamic law’s recycled artwork fit within and simultaneously modified pre-existing
molds (pre-Islamic legal culture and historical circumstances). In previous work, I ex-
plored the craft of Islamic legal recycling through case studies and macro-historical narra-
tives.7 Those investigations advocated that there are variations in the abstract relationship
between pre-Islamic and Islamic legal traditions depending on the area of law (as well as
on time and place). For example, while Islamic interstate law may closely overlap with
pre-Islamic customary interstate law, Islamic purity laws may differ considerably from
pre-Islamic ideas about purity.8 Because different areas of law are generated by distinct
sources and hermeneutics, they take different shapes; in turn, these forms imitate regional
legal structures that may not be limited to any given legal tradition. In addition, I have
emphasized that most resemblances between pre-Islamic and Islamic legal traditions are
the consequences of a shared legal culture or of equivalent historical circumstances. For
instance, I have illustrated that nearly simultaneous changes in Jewish and Islamic divorce
practices resulted not from ‘borrowing’, but rather socio-political changes in shared his-
torical spaces.9 In a similar vein, Jewish, Zoroastrian, and Islamic jurisprudence relied
heavily on oral testimony and evidence because material sources were not widely avail-
able.10 Pre-Islamic law relates to Islamic law through ‘Near Eastern’ legal culture and
historical circumstances.
These observations can be extended to broader and more abstract relationships between
pre-Islamic and Islamic legal traditions. In this chapter, I will offer some modest suggestions
for rethinking the relationship between pre-Islamic and Islamic legal traditions. In doing so,
I will build on previous scholarship in order to focus on two dimensions. First, examining
this relationship reveals important patterns in ‘Near Eastern’ legal culture, particularly the
arrangements between law and the state.11 Specifically, understanding legal pluralism within
‘Near Eastern’ legal culture illuminates crucial differences between pre-modern legal tradi-
tions and modern legal systems. Second, investigating orthodox Muslim perspectives on the
relationship between pre-Islamic and Islamic legal traditions exposes how the Muh․ ammad
and Muslim scholars transformed, accepted, or rejected pre-Islamic laws. Before addressing
these topics, however, I will summarize briefly the historiographic and theoretical limita-
tions in existing scholarship on pre-Islamic legal traditions.
1 Limitations of conventional historiography

Much modern Western scholarship has been oriented towards discovering the ‘origins’ of
Islamic law by cataloguing which pre-Islamic legal traditions were ‘borrowed’ by Islamic
legal traditions.12 A primary way in which scholars have investigated pre-Islamic legal con-
nections has been by identifying specific Islamic laws that resemble pre-Islamic laws (espe-
cially Roman or Jewish). Some scholars have alleged broad-scale, systemic legal ‘borrowing’
based on speculative interpretations of historical evidence.13 The ‘borrowing’ paradigm is
both inaccurate and problematic; it projects misleading conceptualizations of law and reflects
276
anti-intellectual identity politics. Law cannot be ‘pure’. As noted, legal traditions inescapably
produce recycled artwork, such that it would be impossible for the Islamic legal tradition (or
any other) not to integrate pre-Islamic law. So much of a legal tradition consists of customary
practices shared with other legal traditions that the attempt to identify exclusive (or unique)
laws within a legal culture is a misleading endeavour. The integration of pre-Islamic laws
within the Islamic legal tradition is so inevitable as not to merit questioning. In short, much
conventional Islamic legal historiography has been limited by misunderstandings of law and
of historical change.
Some scholarship has acknowledged the shared legal culture of pre-Islamic and Islamic
traditions as the explanatory basis for similarities between pre-Islamic and Islamic laws.14
Crone and Silverstein recognized that land distribution through lot casting demonstrated
‘the shared roots of Jewish and Islamic culture in the ancient Near Eastern tradition’.15 Young
observed that ‘stoning for adultery and hand-amputation for theft were part of the corpus
of Arab customary law before the revelation of the Qurʾān’;16 arguing against borrowing,
Young insisted that ‘Islamic law is a natural outgrowth of its Near Eastern Semitic heritage’.17
Some scholarship has also correlated distinctions within Islamic legal schools to variations
within the region’s legal culture.18 These observations, and similar ones made by other schol-
ars, have not shifted an unfortunate paradigm in contemporary Western scholarship. The
prevalent scholarly tendency continues to be weighing pre-Islamic elements in Islamic law.19
Moreover, it remains the case that inquiries into Islamic law’s legal ‘borrowings’ are largely
motivated by polemics and ideology.
I want to direct attention to an interesting and underappreciated implication of con-
ventional scholarship’s emphasis on Islamic law’s ‘borrowings’ from pre-Islamic legal tra-
ditions: scholars usually focus on what they perceive to be positive or neutral aspects of the
Islamic legal tradition. By comparison, when it comes to Islamic laws that are criticized
in contemporary debates (such as those related to violence, the status of women, or the
treatment of minorities), the possibility that the Islamic legal tradition ‘borrowed’ from
pre-Islamic legal traditions conveniently disappears. 20 By way of example, many Islamic
laws concerning the status of women and non-Muslims resemble pre-Islamic laws; yet,
there is little (if any) scholarship alleging that Islamic law ‘borrowed’ these laws from
pre-Islamic traditions. This is yet another demonstration of the ideological undercurrents
in Islamic legal ‘origins’ historiography. Of course, it would be absurd to react to this bias
by ascribing to equivalent, false assumptions about ‘legal borrowing’: one should not claim
that the Islamic legal tradition ‘borrowed’ any pre-Islamic law, regardless of its positive,
neutral, or negative associations for contemporary observers. As I have emphasized, distin-
guishing content within the artwork of Islamic legal recycling is a polemical, rather than
an intellectual endeavour.
Once we accept the limitations of the ‘origins’ paradigm, it becomes necessary to consider
alternative approaches to understanding the relationship between pre-Islamic and Islamic
legal traditions. To do so, I suggest beginning from the premise that Islamic legal recycling
occurred within ‘Near Eastern’ legal culture. Accordingly, we should explore how the Is-
lamic legal tradition relates to ‘Near Eastern’ legal culture. I propose that one important
way in which the Islamic legal tradition connects with ‘Near Eastern’ legal culture is the
construction of a particular relationship between state and non-state law. As was the case in
pre-Islamic ‘Near Eastern’ legal culture, the Islamic legal tradition accommodated pluralism
both within Islamic law and between Islamic and non-Islamic legal traditions; this legal
pluralism defined the relationship between law and the state in ways that are distinct from
contemporary legal systems.
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2 Law and the state in ‘Near Eastern’ legal culture

The pre-Islamic Arabian Peninsula was home to and adjacent to several forms of gover-
nance, in some cases overlapping. As is widely acknowledged, pre-Islamic state practices
were largely continued after the Muslim conquests.21 Recognition of the adaptation of the
administrative bureaucracy, however, has overshadowed recognition of how pre-Islamic ‘law
and the state’ set the stage for Islamic ‘law and the state’. In this section, I will review three
state-based legal systems (tribal, Byzantine, and Sasanian) that operated in the region prior
to the Islamic movement. For our purposes, the key aspect of all three of these legal systems
is that they accommodated legal pluralism by limiting the state legal system’s reach into
non-state legal traditions. Thus, tribal legal systems incorporated pagans, monotheists, Jews,
and Christians, with their particular legal traditions. Likewise, Sasanian law accommodated
Zoroastrian, Christian, and Jewish legal traditions. Byzantine law integrated the legal tradi-
tions of Christians, Jews, and pagans. The legal traditions of non-Muslims in Islamic states
should be contrasted with the equivalent pre-Islamic frameworks – not in order to suggest
‘borrowing’, but rather to investigate how and why the Islamic legal tradition accepted, mod-
ified, or rejected particular aspects of the ‘Near Eastern’ legal model of ‘law and the state’.
2.1 Tribal legal system

Tribal law is an underappreciated pre-Islamic legal tradition, in part because of the dearth of
historical evidence. Nevertheless, the available historical evidence provides a general outline of
how tribal law functioned.22 Common assumptions limit the scope of tribal law to retaliation
(qis․ās․), which was itself normative in many pre-modern legal traditions; however, retaliation
was only one component of tribal law. Collective responsibility and collective decision making
(of tribal councils) were vital parts of the tribal legal tradition. It is important to recognize that
arbitration was not an alternative to courts, but functioned as the primary form of adjudicatory
relief.23 Tribal judges (either chiefs or arbitrators) adjudicated individual cases; tribal councils
adjudicated particularly important cases.24 There appears to have been some centralized system
of courts in the Arabian Peninsula, with a central court in Mecca.25 And there is recognizable
continuity in how the judiciary functioned prior to and after the Islamic movement.26
The Arabian tribal legal system constituted an umbrella for several legal traditions. Jews
in Arabia (both the northwest and the south) may have followed the rabbinic Jewish tradi-
tion.27 For example, Babylonian rabbis discussed issues of food and clothing particular to the
Arabian context.28 In light of the known relationship between Arabian Jews and Babylonian
rabbinic figures, it is possible that some Arabian Jews were educated in the Babylonian acad-
emies and, consequently, could convene rabbinic courts. However, we should not assume
that Arabian Jews were rabbinic (either by historical or contemporary understandings of the
term).29 Within the Arabian Peninsula, Jews were fully integrated within the tribal legal
system, including acting as judges (both for Jews and non-Jews).30 There were also Eastern
Christian tribes throughout pre-Islamic Arabia.31 Most Christians in the Arabian Penin-
sula were likely Nestorians or Miaphysites.32 Eastern Christians primarily adjudicated family
law issues autonomously.33 Thus, the tribal legal system coexisted with Jewish and Eastern
Christian law, as well as other legal traditions.
2.2 Sasanian legal system

Sasanian dominance in the Arabian Peninsula may have been limited to the collection of
taxes in some areas, brief political control over Yemen, and an alliance with the Lakhmids
278
(a Christian Arab tribe).34 Yet the Sasanian legal system was likely familiar to the inhabitants
of the Arabian Peninsula and the subsequent Islamic empire probably continued many Sasa-
nian practices. Zoroastrianism was primarily associated with the Sasanian ‘ruling-class’, but
it was integral to the Sasanian legal system.35 The integration of Zoroastrian law in Sasanian
state law suggests that there was no distinction between divine law and state law.36 Indeed,
Zoroastrian clergy were influential in the Sasanian state.37 Zoroastrian jurisprudence relied on
the Zoroastrian scripture (the Awesta [sixth century]), oral legal traditions, and legal opinions
(including consensus) of jurists.38 Still, Zoroastrian jurisprudence and the practice of Sasanian
courts sometimes overlapped and sometimes differed.39 The Sasanian state applied Zoroastrian
criminal law,40 which included capital punishment (often decapitation by sword)41 and recog-
nized both individual and collective liability.42 Apostasy from Zoroastrianism was criminal-
ized because Zoroastrianism was equivalent to the Sasanian ‘political ideology’.43 Much like
their Muslim successors, Sasanians collected a poll tax.44 (And also like their contemporaries
and successors, the Sasanian state criminalized illicit sexual relations.45) Jews were represented
by both the exilarch (chief representative) and the scholars; the exilarch appointed local rab-
binic judges.46 The Sasanians recognized a Christian catholicos who had powers similar to that
of the Jewish exilarch.47 Non-Zoroastrians had access to both the Sasanian/Zoroastrian courts
(which functioned as state courts) and their own communal courts.48 As in the case of the tribal
legal system, the Sasanian legal system accommodated multiple, overlapping legal traditions.
2.3 Byzantine legal system

Although the Byzantine Empire (330–1453) did not rule directly over the Arabian Peninsula,
the Byzantines did form alliances with some tribes (such as the Ghassanids, a Christian Arab
tribe) and thereby exerted indirect political control. More importantly, there were extensive
interactions between pre-Islamic Arabs and Byzantines.49 While Byzantine law was taught
formally in Syria and in Egypt, it is likely that Byzantine legal ideas spread beyond the limited
confines of law schools.50 Byzantine law did not differentiate between state law and Church
law, each of which shaped the other.51 Justinian I (r. 527–565) oversaw the formation of four
legal sources: the Codex Justinianus, the Digest, the Institutes, and the Novellae Constitutiones.
In the decades immediately preceding Islam’s beginning, Byzantine jurists focused on the
Institutes and abridgments of the Novels, thereby somewhat neglecting the Codex and the
Digest.52 Byzantine ecclesiastical law (specifically, Eastern Orthodox canon law) was a signif-
icant aspect of Byzantine legal activity. Two of the more important sources from the period
immediately preceding Islam include Collection in Fourteen Titles (sixth century) and Collection
in Fifty-One Titles (seventh century; Syria). A crucial component of legal authority in Byzan-
tine canon law is tradition.53 While the poll tax is a known Roman legal category, it is not
clear if the Byzantines collected a pre-Islamic poll tax in Egypt and possibly other areas under
Byzantine rule.54 Rabbinic courts operated under the Byzantine Empire, but Byzantine law
imposed several restrictions on Jews.55 Still, as was the case with the tribal and Sasanian legal
systems, the Byzantine legal system coexisted with multiple legal traditions.
2.4 From pre-Islamic to Islamic state legal systems

Each of these three state legal systems (tribal, Byzantine, and Sasanian) officially or unoffi-
cially aligned itself with a majority community (pagan Arabian, Zoroastrian, or Christian)
while acknowledging the legal traditions of minority communities. (I use the terms ‘major-
ity’ and ‘minority’ in terms of power, rather than number.) I suspect that the pre-modern
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equivalent of ‘tolerance’ does not explain why these states allowed minority communities to
operate their own courts or to determine certain internal legal issues. I propose that these
states recognized jurists as the generators of law and viewed states as hosts of juristic legal
traditions – whether a majority or a minority legal tradition.
In ‘Near Eastern’ legal culture, jurists (or sages, or scholars) were the main producers
of law in their respective communities. These specialists in law were socially recognized
as responsible for interpreting legal traditions (or scriptural texts) and for transmitting oral
law. Master jurists taught their disciples law (often in legal circles) and differences of opinion
among master jurists were recorded and studied. Jurists determined consensus and customary
legal practices, two significant sources in these regional legal traditions.56 When Islamic legal
activity began, it unsurprisingly operated like the other legal traditions in the region: Muslim
and non-Muslim jurists were recognized as the craftsmen of their legal traditions. In turn,
the Islamic state accepted Muslim and non-Muslim jurists – rather than the state itself – as
conveyers of the law. In other words, the absence of a state monopolization on the production
of law had significant implications for the nature of ‘Near Eastern’ legal pluralism.
3 Orthodox Islamic sources

The relationship between pre-Islamic and Islamic legal traditions is not a topic that concerns
only modern or Western scholars. Pre-modern Muslim scholars debated the possibility that
Muh․ ammad obeyed a pre-Islamic legal tradition prior to beginning the Islamic movement.
In so doing, they classified the Prophet’s potential pre-Islamic legal adherence as observance
of Abraham’s laws, Moses’ laws, Jesus’s laws, or the laws of all the prophets.57 (That Mus-
lim scholars focused on Muh․ ammad’s observance of divine laws may reflect an attempt to
legitimate his prophecy vis-à-vis non-Muslims.) For the most part, this literature does not
address the historical reality of the Prophet’s adherence to a non-divine legal tradition: prior
to his beginning the Islamic movement, Muh․ ammad lived in a tribal society and presumably
would have abided by tribal law. Moreover, tribal law shaped how the Prophet himself adju-
dicated issues in his community.58 While there is a dearth of sources explicitly addressing the
application of tribal law in the beginnings of Islamic legal history, this dynamic can never-
theless be reconstructed from historical sources.
Rather than exploring the diverse variety of pre-Islamic legal traditions, orthodox Is-
lamic literature primarily dealt with divine pre-Islamic laws. Many Islamic texts identify
three categories of these laws: those that were upheld, modified, or mentioned.59 First,
Islamic scriptural sources upheld some pre-Islamic laws either explicitly or implicitly. For
instance, monotheism, paying charity, and fasting were recognized as pre-Islamic practices
that were upheld by Islamic law.60 Second, Islamic scriptural sources modified some pre-
Islamic laws. For example, Qurʾān 16:115 modifies Jewish dietary laws by prohibiting fewer
categories of foods.61 Jurists generally agreed about pre-Islamic practices that were upheld
or modified in Islamic scriptural sources; these two categories of pre-Islamic laws were
accepted as part of Islamic law. There was relatively more disagreement about the third
category, pre-Islamic laws that were merely mentioned in the Qurʾān and tradition-reports.
This third category includes the Qurʾānic references to the biblical notion of ‘an eye for an
eye’ (Q. 5:45) and to the Talmudic notion of unjust killing being equivalent to killing all
of humanity (Q. 5:32).62
Some Muslim jurisprudents explored the question of the potential legal value of pre-
Islamic laws that were not explicitly rejected or accepted in Islamic scriptural sources.63
Some medieval Islamic jurisprudential texts addressed this topic in a section on ‘legal sources
280
subject to disagreement’ or ‘preceding divine laws’. To be precise, Muslim jurists who dealt
with this topic debated the precedential value of pre-Islamic divine laws, primarily those that
were mentioned in the Qurʾān or tradition-reports. (As previously noted, these pre-Islamic
divine laws were considered to be authentic or verified, as compared to pre-Islamic divine
laws recorded in non-Islamic texts.) Among orthodox Islamic legal schools, there is a diver-
sity of opinions on the precedential weight of these laws.64 H
․ anafı̄s, Mālikı̄s, and the majority
of Shāfiʿı̄s held that non-abrogated pre-Islamic laws mentioned in Islamic scriptures are legal
sources for Muslims.65 By comparison, there are conflicting opinions within the H ․ anbalı̄
school.66 That orthodox Muslim jurists considered both the validity and the obligation of
pre-Islamic divine laws is evidence of one of the techniques of Islamic legal recycling.
Along with these explicit discussions of pre-Islamic divine laws, one might add the less
systematically studied category of ‘rejected pre-Islamic laws’. Islamic literature documents
several pre-Islamic customary practices that were deemed illegitimate and nullified by the
Prophet or late antique Muslim community.67 Late antique Islamic law explicitly rejected
female infanticide, idolatry, usury, and sexual relationships leading to uncertain paternity.
Future scholarship should examine further what pre-Islamic laws Muslims viewed them-
selves as nullifying and why.
An additional way in which Islamic law recycled pre-Islamic legal traditions is through
narratives in tradition-reports. Specifically, some Muslim traditionists who had converted
from Judaism or who were familiar with Jewish texts reported biblical and rabbinic narratives
and scriptural hermeneutics in what came to be identified as ‘Israelite stories’ (isrāʾı̄liyyāt).68
Initially, these stories were integrated in Islamic hermeneutics with little comment; but, over
time, some Muslim scholars would reject these reports because of their content or perceived
‘foreignness’.69 No systematic study has examined how Israelite stories informed Islamic legal
doctrines; moreover, it is not possible to determine to what extent Islamic law adapted Jewish
law through Israelite narratives. Nonetheless, complementing the explicit juristic discussion
of pre-Islamic divine laws, some orthodox Islamic sources convey information about more
subtle processes of Islamic legal recycling.
Conclusion
The intermixing of pre-Islamic legal traditions constituted the legal starting point for Islamic
law’s flourishing. Rather than investigating specific legal doctrines in order to measure the
pre-Islamic content of Islamic law, we should focus our attention on how the Islamic legal
tradition reveals the shape of pre-Islamic legal cultures and socio-historical situations. In
this chapter, I summarized a significant, but understudied dimension of how pre-Islamic
and Islamic traditions relate to each other. Pre-Islamic and Islamic legal traditions share a
particular form of legal pluralism in which jurists play crucial roles in the articulation of law
(including state law). I also have highlighted the importance of considering how orthodox
Islamic sources dealt with the topic of pre-Islamic legal traditions. Instead of seeking to iden-
tify which pre-Islamic laws became Islamic, I contend that we should explore relationships
between pre-Islamic and Islamic legal traditions by asking different types of questions. For
example, among the legal cultures of the ‘Near East’, some traditions condemned torture
and others permitted it; how does the orthodox Islamic legal prohibition against torture
relate to these pre-Islamic traditions?70 Scriptural sources and oral law were at the core of
legal hermeneutics in several ‘Near Eastern’ legal traditions.71 Why did the Islamic tradi-
tion develop a relatively more formulaic orthodox jurisprudential methodology (us․ūl al-fiqh)
than pre-Islamic legal traditions? This chapter offered broad suggestions on more productive
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scholarly questions about the relationship between pre-Islamic and Islamic legal traditions.
Understanding the pre-Islamic context of Islamic law necessitates exploring far-reaching
patterns in ‘Near Eastern’ legal culture.
Notes
1 I differentiate between ‘legal tradition’ and ‘legal system’. The former is a broader historical and
geographic category than the latter; the latter presumes an enforcement mechanism.
2 The ‘Near East’ is a British colonial term; I use it in this chapter for the sake of convenience, but
with quotes to indicate that it is problematic.
3 On Arabian law as ‘Near Eastern’, see Patricia Crone, Roman, Provincial and Islamic Law: The O rigins
of the Islamic Patronate (Cambridge: Cambridge University Press, 2002), 93 (‘To some extent law
in Arabia would thus appear to have been Near Eastern law’); David S. Powers, ‘The Islamic
Inheritance System: A Socio-Historical Approach’, in Islamic Family Law, ed. Chibli Mallat and
Jane Connors. Arab and Islamic Law Series (London: Graham & Trotman, 1990), 15 (‘Near Eastern
Provincial Law’); Robert Roberts, The Social Laws of the Qorân: Considered and Compared with Those
of the Hebrew and other Ancient Codes (London: Curzon Press, 1971), 2 (‘There are many customs
which are common to all Eastern nations and cannot be traced to the code of any particular peo-
ple’). See also Wael B. Hallaq, ‘Review: The Use and Abuse of Evidence: The Questions of Pro-
vincial and Roman Influences on Early Islamic Law’. Journal of the American Oriental Society 110(1)
(1990): 79–91.
4 Samuel A. Jackson, A Comparison of Ancient Near Eastern Law Collections Prior to the First Millennium
BC (Piscataway, NJ: Gorgias Press, 2008).
5 I introduced this metaphor in my book, Lena Salaymeh, The Beginnings of Islamic Law: Late Antique
Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016).
6 Lena Salaymeh, ‘Every Law Tells a Story: Orthodox Divorce in Jewish and Islamic Legal Histories’.
UC Irvine Law Review 4(1) (2014): 19–63; Lena Salaymeh, ‘“Comparing” Jewish and Islamic Legal
Traditions: Between Disciplinarity and Critical Historical Jurisprudence’. Critical Analysis of Law,
New Historical Jurisprudence 2(1) (2015): 153–72; Salaymeh, The Beginnings of Islamic Law; Lena Sa-
laymeh and Zvi Septimus, ‘Temporalities of Marriage: Medieval Jewish and Islamic Legal Debates’,
in Talmudic Transgressions: Essays in Honor of Daniel Boyarin, ed. C. Fonrobert, et al. (Leiden: Brill,
2017).
7 The case studies are the even-numbered chapters in Salaymeh, The Beginnings of Islamic Law.
8 I began exploring distinctions within areas of Islamic law in ibid.
9 Salaymeh, The Beginnings of Islamic Law, Chapter 6.
10 Historical circumstances explain many of the similarities observed by János Jany, Judging in the
I slamic, Jewish and Zoroastrian Legal Traditions: A Comparison of Theory and Practice. Cultural Diversity
and Law Series (Oxford: Routledge, 2012), 200.
11 As I have explained elsewhere, my use of the term ‘state’ does not refer to the modern nation-state.
Instead, ‘[t]he state, or pattern of rule, is the contingent product of diverse actions and political
struggles informed by the beliefs of agents rooted in traditions’. Mark Bevir and R. A. W. Rhodes,
The State as Cultural Practice (Oxford: Oxford University Press, 2010), 99. I explored some of the
state-based dimensions of the Islamic legal tradition in Lena Salaymeh, ‘Taxing Citizens: Socio-
Legal Constructions of Late Antique Muslim Identity’. Islamic Law and Society 23(4) (2016): 333–67.
12 For a more thorough examination of this scholarship, see Salaymeh, The Beginnings of Islamic Law.
13 For a concise overview of this body of scholarship, see Knut S. Vikør, ‘The Origins of the Shari’ah’,
in The Ashgate Research Companion to Islamic Law, ed. Rudolph Peters and P. J. Bearman (Farnham,
Surrey: Ashgate, 2014).
14 See Chapters 5 and 6 of Salaymeh, The Beginnings of Islamic Law.
15 Patricia Crone and Adam Silverstein ‘The Ancient Near East and Islam: The Case of Lot-Casting’.
Journal of Semitic Studies 55(2) (2010): 432.
16 Walter Young, ‘Stoning and Hand-Amputation: The Pre-Islamic Origins of the ․hadd Penalties for
zinā and sariqa’ (Master’s thesis, McGill University, 2005), 7.
17 Ibid., 8.
18 For example, Hjerrild suggests that Imāmı̄ Shı̄ʿı̄ acceptance of temporary marriage reflects Sasanian
precedents. Bodil Hjerrild, ‘Islamic Law and Sasanian Law’, in Law and the Islamic World: Past and
282
Present, ed. Christopher Toll and Jakob Skovgaard-Petersen (Copenhagen: Royal Danish Academy
of Sciences and Letters, 1995), 54. I would argue, however, that Zoroastrians were not the only
group to practise temporary marriage, since Jews and pagan Arabs also likely practised some form
of it. See Salaymeh and Septimus, ‘Temporalities of Marriage’.
19 For a summary of this scholarship, see Vikør, ‘The Origins of the Shari’ah’. For a more specific ex-
ample, see Jokisch’s claims about Islamic legal ‘borrowings’ from Roman law in Benjamin Jokisch,
Islamic Imperial Law: Harun Al-Rashid’s Codification Project, ed. Lawrence I. Conrad. Studien zur
Geschichte und Kultur des islamischen Orients Series (Berlin and New York: Walter de Gruyter,
2007).
20 On contemporary propagandizing against Islamic law and the tripartite trope of violence, women
and minorities, see Lena Salaymeh, ‘The Politics of Inaccuracy and a Case for “Islamic Law”’,
The Immanent Frame (7 July 2011), http://blogs.ssrc.org/tif/2011/07/07/the-politics-of-inaccuracy-
and-a-case-for-islamic-law (accessed 24 July 2018); Lena Salaymeh, ‘Commodifying “Islamic law”
in the U.S. Legal Academy’. Journal of Legal Education 63(4) (May 2014): 640–6; Lena Salaymeh,
‘Propaganda, Politics, and Profiteering: Islamic Law in the Contemporary U.S.’, Jadaliyya (2014),
http://www.jadaliyya.com/pages/index/19408/propaganda-politics-and-profiteering_islamic-law-i
(accessed 24 July 2018).
21 On continuity in political administration, see H. M. T. Nagel, ‘Some Considerations Concerning
the Pre-Islamic and the Islamic Foundations of the Authority of the Caliphate’, in Studies on the
First Century of Islamic Society, ed. G. H. A. Juynboll. Papers on Islamic History Series (Carbondale:
Southern Illinois University Press, 1982); Petra Sijpesteijn, Shaping a Muslim State: The World of A
Mid-Eighth-Century Egyptian Official (Oxford: Oxford University Press, 2013).
22 Sadik Kirazli, ‘Conflict and Conflict Resolution in the Pre-Islamic Arab Society’. Islamic Studies
50(1) (2011): 25–53.
23 On pre-Islamic arbitration, see Muhammad Yusuf Guraya, ‘Judicial Institutions in Pre-Islamic
Arabia’. Islamic Studies 18(4) (1979): 341–5.
24 Ibid., 330.
25 Ibid., 333.
26 ․ āʾ ʿinda al-ʿarab: min al-ʿas․r al-jāhilı̄ ․h attá al-ʿas․r al-ʿabbāsı̄ al-islāmı̄.
Murād Masʿūdānı̄. Tārı̄ kh al-qad
(Beirut: Dār al-Kutub al-ʿIlmı̄yah, 2014).
27 On the confessional affiliations of the Arabian Peninsula’s inhabitants, see Robert G. Hoyland, Ara-
bia and the Arabs: From the Bronze Age to the Coming of Islam (London: Routledge Press, 2001), 146.
28 Gordon Newby, A History of the Jews of Arabia: From Ancient Times to Their Eclipse under Islam
(Columbia: University of South Carolina, 1988), 54.
29 This claim is in contrast to Lecker’s comments, in Michael Lecker, ‘A Note on Early Marriage
Links between Qurashı̄s and Jewish Women’. Jerusalem Studies in Arabic and Islam 10 (1987): 17–39.
30 Newby, A History of the Jews of Arabia, 77.
31 Eastern Christians included Orthodox, Miaphysites (also known as Monophysite), Nestorians, and
Maronites. These groups generally adhered to the Apostolic canons, the Corpus Canonum. Trim-
ingham explains that ‘[a]t the time of the rise of Islam, all the northern Arabs of Syria and Mes-
opotamia, cultivators and nomads alike, were not merely monotheists but offered some measure
of allegiance to Jesus Christ’. John Spencer Trimingham, Christianity among the Arabs in Pre-Islamic
Times (London: Longman Group Limited, 1979), 6. Hoyland identifies Christian tribes in eastern,
southern, and northern parts of the Peninsula. Hoyland, Arabia and the Arabs, 147.
32 Ghada Osman, ‘Pre-Islamic Arab Converts to Christianity in Mecca and Medina: An Investigation
into the Arabic Sources’. The Muslim World 95(1) ( January 2005): 67–80.
33 Lev E. Weitz, Between Christ and Caliph: Law, Marriage, and Christian Community in Early
Islam (Philadelphia: University of Pennsylvania Press, 2018)
34 Michael Lecker, ‘The Levying of Taxes for the Sassanians in Pre-Islamic Medina (Yathrib)’.
Jerusalem Studies in Arabic and Islam 27 (2002): 109–26.
35 Michael G. Morony, ‘Religious Communities in Late Sasanian and Early Muslim Iraq’. Journal of
the Economic and Social History of the Orient 17(2) (1974): 115.
36 Jany, Judging in the Islamic, Jewish and Zoroastrian Legal Traditions.
37 János Jany, ‘The Four Sources of Law in Zoroastrian and Islamic Jurisprudence’. Islamic Law and
Society 12(3) (2005): 304.
38 Ibid.
39 Ibid., 326.
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Lena Salaymeh
40 János Jany, ‘Criminal Justice in Sasanian Persia’. Iranica Antiqua XLII (2007): 347–86 (349).
41 Ibid., 352.
42 Ibid., 371.
43 Ibid., 360, 384. The overlap between state ideology and confessional affiliation may also explain
mass conversions from Zoroastrianism to Islam. On the relationship between citizenship and Mus-
lim identity, see Salaymeh, ‘Taxing Citizens’.
4 4 Morony, ‘Religious Communities in Late Sasanian and Early Muslim Iraq’, 119.
45 Jany, ‘Criminal Justice in Sasanian Persia’, 370.
46 The Sasanian Empire authorized and recognized rabbinic courts. Uriel I. Simonsohn, A Common
Justice: The Legal Allegiances of Christians and Jews under Early Islam. Divinations: Rereading Late
Ancient Religion Series (Philadelphia: University of Pennsylvania Press, 2011), 51.
47 Ibid.
48 Ibid., 47.
49 See Irfan Shahı̄d, Rome and the Arabs: A Prolegomenon to the Study of Byzantium and the Arabs
(Washington, DC: Dumbarton Oaks Research Library and Collection, 1984).
50 On ‘Roman Provincial Law’ as the hybrid form of Byzantine law in the region, see Crone, Roman,
13–15.
51 George Mousourakis, Roman Law and the Origins of the Civil Law Tradition (Cham, Switzerland:
Springer, 2015), 215.
52 Ibid.
53 David Wagschal, Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883.
Oxford Early Christian Studies Series (Oxford: Oxford University Press, 2015), 280.
54 On Byzantine taxation, see Angelo Segrè, ‘Studies in Byzantine Economy: Iugatio and Capitatio’.
Traditio 3 (1945): 101–27. On the possibility that the Byzantines did not collect a poll tax, see Petra M.
Sijpesteijn, ‘The Arab Conquest of Egypt and the Beginning of Muslim Rule’, in Egypt in the Byzan-
tine World, 300–700, ed. Roger S. Bagnall (Cambridge: Cambridge University Press, 2007), 445.
55 Solomon Grayzel, ‘The Jews and Roman Law’. The Jewish Quarterly Review 59(2) (October 1968):
93–117.
56 Jany, Judging in the Islamic, Jewish and Zoroastrian legal traditions, 49.
57 ʿAbd al-Rah․ mān ibn ʿAbd Allāh Darwı̄sh. al-Sharāʾiʿ al-sābiqah wa-madá ․h ujjı̄ yatihā fı̄ al-sharı̄ʿah
al-islāmı̄ yah (Riyadh: al-ʿUbaikan, 1989), 274.
58 By way of example, the treaty that established the Muslim community in Medina followed tribal
practices. See Michael Lecker, The ‘Constitution of Medina’: Muh․ammad’s First Legal Document. Stud-
ies in Late Antiquity and Early Islam Series 23 (Princeton, NJ: The Darwin Press, 2004).
59 Kamali summarizes these three categories. Mohammad Hashim Kamali, Principles of Islamic Juris-
prudence, rev. edn (Cambridge: Islamic Texts Society, 1991), 230–1.
60 Darwı̄sh, al-Sharāʾiʿ al-sābiqah, 255–6.
61 This example is cited in Kamali, Principles, 231. On Jewish and Islamic dietary regulations, see
David M. Freidenreich, Foreigners and Their Food: Constructing Otherness in Jewish, Christian, and
Islamic Law (Berkeley: University of California Press, 2011).
62 These two examples are cited in Kamali, Principles, 232. The phrase ‘eye for an eye’ appears in
E xodus 21:24 and the Talmudic discussion of unjust killing appears in Mishnah, Sanhedrin 4:5 and
in Babylonian Talmud, Sanhedrin 37a.
63 See Anwar Shuʿayb ʿAbd al-Salām. Sharʿ man qablanāabmāhı̄yatuhu wa-h․ujjı̄yatuhu wa-nashʾatuhu
wa-d․awābit․uhu wa-tat․bı̄qātuh (Kuwait: Lajnat al-Taʾlı̄ f wa-l-Taʿrı̄ b wa-l-Nashr, 2005); Darwı̄sh, al-
Sharāʾiʿ al-sābiqah.
64 Kamali suggests that a majority of Hanafi, Maliki, and Hanbali jurists, as well as some Shafiʿi jurists,
considered pre-Islamic laws mentioned in Islamic scripture to be binding. Kamali, Principles, 232.
However, I follow Darwı̄sh, who suggests a different configuration of the juristic disagreement.
65 Darwı̄sh, al-Sharāʾiʿ al-sābiqah, 321–8.
66 Ibid., 329–33.
67 I am unaware of any systematic study that identifies ‘ jāhilı̄’ laws that were considered nullified by
Islamic law.
68 Roberto Tottoli, ‘Origin and Use of the Term Isrāʾı̄ liyyāt in Muslim Literature’. Arabica 46(2)
(1999): 193–210.
284
69 Lowin explains that, in the 14th century, isrāʾı̄liyyāt came ‘to designate dubious traditions which
were to be rejected because of either objectionable content or its non-Muslim origin’. Shari L.
Lowin, ‘Abraham in Islamic and Jewish Exegesis’. Religion Compass 5(6) (2011): 225.
70 ʿAbd al-Salām Jumʿah Zāqūd. Taʿdhı̄b al-insān: dirāsah fı̄ it․ār al-sharı̄ʿah al-islāmı̄yah wa-l-qānūn
al-duwalı̄ li-h․uqūq al-insān (Riyadh: Maktabat al-Qānūn wa-l-Iqtis․ād, 2013). Jany observes that
Zoroastrian law allowed torture in criminal procedures, but Jewish and Islamic law prohibited it.
Jany, Judging in the Islamic, Jewish and Zoroastrian Legal Traditions, 201.
71 Although I disagree with many of the details, Jany offers a useful chart comparing Islamic, Jewish,
and Zoroastrian legal traditions, in Judging in the Islamic, Jewish and Zoroastrian Legal Traditions,
199–207.

ʿAbd al-Salām, Anwar Shuʿayb. Sharʿ man qablanā: māhı̄yatuhu wa-h․ujjı̄yatuhu wa-nashʾatuhu wa-
․dawābit․uhu wa-tat․bı̄qātuh (Kuwait: Lajnat al-Taʾlı̄ f wa-l-Taʿrı̄ b wa-l-Nashr, 2005).
Darwı̄sh, ʿAbd al-Rah ․ mān ibn ʿAbd Allāh. al-Sharāʾiʿ al-sābiqah wa-madá ․hujjı̄yatihā fı̄ al-sharı̄ʿah
al-islāmı̄yah (Riyadh: Al-ʿUbaikan, 1989).
Hallaq, Wael B. The Origins and Evolution of Islamic law (Cambridge: Cambridge University Press,
2005).
Jany, János. Judging in the Islamic, Jewish and Zoroastrian Legal Traditions: A Comparison of Theory and Prac-
tice. Cultural Diversity and Law Series (Oxford: Routledge, 2012).
Jany, János. ‘The Four Sources of Law in Zoroastrian and Islamic Jurisprudence’. Islamic Law and Society
12(3) (2005): 291–332.
Morony, Michael G. ‘Religious communities in Late Sasanian and Early Muslim Iraq’. Journal of the
Economic and Social History of the Orient 17(2) (1974): 113–35.
Salaymeh, Lena. The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge:
Salaymeh, Lena. ‘Taxing Citizens: Socio-Legal Constructions of Late Antique Muslim Identity’.
I slamic Law and Society 23(4) (2016): 333–67.
Salaymeh, Lena. ‘“Comparing” Jewish and Islamic Legal Traditions: Between Disciplinarity and
Critical Historical Jurisprudence’. Critical Analysis of Law, New Historical Jurisprudence 2(1) (2015):
153–72.
Schacht, Joseph. ‘Pre-Islamic Background and Early Development of Jurisprudence’. Chap. II in O rigin
and Development of Islamic Law, ed. Majid Khadduri and Herbert J. Liebesny (Washington, DC:
Middle East Institute, 1955), 28–56.
Simonsohn, Uriel I. A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam.
Divinations: Rereading Late Ancient Religion Series (Philadelphia: University of Pennsylvania
Press, 2011).
285
16
The place of custom in Islamic law
Past and present
Ayman Shabana
Introduction
The relationship between law and custom has been one of the enduring questions that jurists
in different legal cultures had to contend with. Not only has custom often been recognized
as one of the main sources of law, but it has also shaped the definition of law itself.1 In the
Western legal tradition, discussions over the customary foundations of law, or the pre-law
phase, can be traced to the distinction in Greek and Roman sources between written and un-
written origins of the law, where the latter were usually associated with the notion of custom.
Subsequently, custom continued to play an important role in European legal history, both in
the civil law tradition and to a greater extent in the common law tradition.2 Similar discus-
sions on the role of custom in legal systems can also be found in other legal traditions such
as those of India, China and Africa.3 In order to determine the exact legal status of custom,
these discussions often address important questions such as its relationship with other sources,
as well as requisite conditions for legal validation or recognition of certain customs. Central
to these discussions is the fundamental difference between mere habit of a particular group
in a particular culture and a binding custom, as well as the necessary conditions required
for the transformation of the former into the latter.4 Ultimately, despite modern misgivings
about custom and its role in the rational process of law making, some legal philosophers argue
that custom remains the most important source for solving practical problems since ‘moral
principles, written laws, legal doctrines and philosophical writing are all articulations of pre-
existing customs’.5 In the Islamic legal tradition, the relationship between Shariʿah and custom
is quite distinctive due to several epistemological and hermeneutical considerations. On the
one hand, the divine textual foundations of Shariʿah imply a fixed legal structure, but its claim
to continued universal validity not only necessitated adaptation of preceding conventions but
also require ongoing accommodation of changing customs, on the other. Questions pertain-
ing to the place and function of custom in Islamic law are not limited to the classical tradition,
reflecting the primacy of Shariʿah as the main source of legal norms within a Muslim polity,
but they remain as important and relevant in the modern period also, although in a completely
changed legal landscape. The development of the concept of custom in the Islamic legal tradi-
tion illustrates juristic engagement with the important notions of continuity and change, and
is, therefore, important for understanding the process of Islamic legal construction. The task
286
of adapting and accommodating common customs illustrates one of the main tensions that
jurists, both past and present, have to grapple with; namely, the need to enhance the flexibility
of law without compromising its distinctive character and normative foundations. This chap-
ter seeks to highlight the role of custom in Islamic legal discourses during the pre-modern
period and also to explore later developments in the modern context.
1 Conceptualization of custom
In Arabic the concept of custom is associated with two main terms: ʿUrf and ‘āda. ʿUrf is de-
rived from the root that means ‘to know’ and stands for what is known or what is recognized.
‘Āda is derived from the root that means ‘to return’ or ‘to repeat’ and it stands for a recurrent
or habitual behaviour. Although they are often used as synonyms, significant differences have
also been noted between ʿUrf and ʿāda. The term ʿāda (pl. ʿādāt) covers both individual as well
as collective habits, while ʿUrf (pl. aʿrāf ) covers only collective ones. Moreover, the term ʿāda
denotes a habitual or recurrent course of action regardless of whether it is based on any type
of rational justification, while the latter is considered important for the definition of ʿUrf.6
The term ʿUrf occurred twice in the Qurʾan,7 while various other derivatives of the two terms
occurred frequently in both the Qurʾan and the Sunna of the Prophet. In particular, the term
maʿrūf and its opposite munkar are perhaps the most famous examples. The term maʿrūf literally
means ‘what is known’ but is used also in the sense of ‘what is morally good’. Similarly, the
term munkar literally means ‘what is unknown’, but it is used in the sense of ‘what is morally
bad’. Both maʿrūf and munkar are used in this technical moral sense in the Islamic normative
tradition, which is captured in the fundamental moral principle of commanding the good
and forbidding the evil (al-amr bi-l-maʿrūf wa-l-nahy ‘an al-munkar). These two terms were used
in the pre-Islamic period to signify (dis)approved cultural or moral standards. In the Islamic
foundational texts, the source of the morality underlying these terms became the will of God
rather than pre-Islamic Arabian standards.8 The moral definition of the term maʿrūf raises
the issue of moral justification and whether the source of this justification would be limited
to divine revelation or whether it could also be extended to include reason. The question of
moral epistemology in the Islamic normative tradition was the subject of an extensive and also
extended debate, particularly in theology and legal theory, which eventually became one of
the main points of distinction between rationalist and traditionalist orientations within this
tradition. The linguistic and cultural background of these terms is crucial for understand-
ing the role of custom, in the sense of common or recurrent practice, in the Islamic legal
tradition. The semantic association between ‘what is known’ and ‘what is morally good’ in
the meaning of terms such as ʿUrf and maʿrūf may help explain the general juristic attitude
towards custom, which could be characterized as prima facie recognition. Especially in the
later phases of the tradition after the concept of custom became well established, jurists often
note that unless a common custom conflicts with one of Shariʿah’s fundamental principles,
it should be recognized as a source of legal derivation. But this does not mean that juristic
discussions over custom were restricted to its role as a legal source. In fact, the concept was
employed in various other ways in different types of legal genres.
2 Shariʿah and custom in the formative period

Repeated references to ʿUrf and maʿrūf, in the sense of both what is commendable and
what is customary within the foundational sources, inspired juristic discussions on a wide
range of issues under the general theme of the relationship between Shariʿah and custom.
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Ayman Shabana
For example, several verses in the Qurʾan refer to ʿUrf as a standard of evaluation as is the
case with the proper amount of maintenance to be provided for breastfeeding mothers
(2:233) as well as assessment of equitable mutual rights and duties between spouses (2:228).
In addition to these direct and explicit references to ʿUrf, several other texts make implicit
references to ʿUrf for the clarification of undefined categories such as average standard of
living (5:89; 65:7) and the definition of moral standards expected of acceptable witnesses
(65:2).9 Similarly, several Prophetic reports include references to custom as a basis for cer-
tain rules. One of the most famous examples is the case of salam, which is a type transaction
in which the price is paid in advance for a commodity to be delivered at a future date.
Although this type of transaction goes against a general rule prohibiting the sale of com-
modities that are not readily available at the time of contract, it was deemed permissible on
the basis of common custom. In fact, reports indicate that the Prophet made this concession
in the case of salam when he emigrated to Medina because it was a well-known transaction.
The case of salam was used by later jurists in order to justify the permissibility of istis․nāʿ
(contract of manufacture), which involves commissioning a craftsman to produce a partic-
ular item. On the basis of textually based examples such as salam as well as other derived
examples such as istis․nāʿ, jurists developed custom as a principle for the construction of nu-
merous subsequent rules. Initially, these and many other similar examples were subsumed
under the general theme of istih․sān, which was usually contrasted with analogical reasoning
when the latter results in burdensome conclusions. A jurist may resort to istih․sān in order
to avoid such burdensome conclusions on the basis of another text, Ijmāʿ, custom, or neces-
sity. Although istih․sān has consistently been associated with the Hanafi school, the Maliki
school was also famous for its use of this doctrine.10 It is important to note here that some
jurists predicate the permissibility of istis․nāʿ on consensus, while others do so on the basis
of general custom. This in turn reveals the close relationship between Ijmāʿ and custom in
jurisprudential debates.11 The roots of this relationship go back to a particular report that
is usually cited to prove the authority of these two concepts: ‘What Muslims deem good
is good in the sight of God’. This report, however, is traced to its narrator, the companion
ʿAbdullah b. Masʿud rather than the Prophet himself. The jurists, however, distinguish
between Ijmāʿ and ʿUrf on several grounds: Ijmāʿ refers to the agreement of qualified jurists
while ʿUrf refers to the agreement of people in general; Ijmāʿ is considered binding for sub-
sequent generations, while ʿUrf is considered binding only for those who recognize it; Ijmāʿ
requires considered deliberation on the issue in question, while ʿUrf emerges in society and
it is adopted on the basis of its popularity and circulation; jurists cannot violate an estab-
lished Ijmāʿ, while parties to a contract can stipulate a condition that contradicts a common
practice; a valid Ijmāʿ is one that is based on a textual source, while ʿUrf does not have to.
Another related concept has been the Medinan practice (ʿamal), which was formulated by
Malik b. Anas and remained one of the main distinctive features of the Maliki school. For
Malik, a prevalent practice in the hometown of the Prophet should be considered norma-
tive because it must be indicative of a Prophetic Sunna either explicitly or implicitly.12 It
should be noted that the Medinan ʿamal, which is considered normative, is the one that was
established during the lifetime of the Prophet. The term, however, continued to be used
within the Maliki school to refer to prevalent practices which are considered normative in
general even subsequently outside of Medina. It is ʿamal in this sense that is often compared
to ʿUrf and even used as its synonym.13
Apart from references in the foundational sources to custom (ʿUrf ) in the sense of com-
mon practices, particularly in the area of transactions (muʿāmalāt), other meanings gradually
emerged with the cumulative development of the normative tradition, particularly in the
288
area of legal theory. One important example was the concept of custom (ʿāda) in the sense
of established and recurrent norms in the universe. It was used as a type of rational proof
in several debates on issues such as religious-legal obligation (taklı̄f ). These debates were
for the most part inspired by early theological debates centring around the general theme
of defending revelation and religious claims on rational grounds. Early theologians often
made the argument that the veracity of religious beliefs has to be proven primarily by reason
because revelatory sources cannot be used to prove themselves. For example, the Ashʿari-
Shafiʿi theologian-jurist Imam al-Haramayn al-Juwayni (d. 478/1085) divided the sources
of religious knowledge into three main types: reason, miracles and textual sources (i.e.
the Qurʾan, Sunna and Ijmāʿ respectively).14 While reason establishes necessary (intuitive)
knowledge, miracles prove the veracity of Prophets, and subsequently religious texts. The
role of custom is evident in the fact that the veracity of miracles is dependent on their ability
to break with the ordinary, the conventional and the customary.15 One of the important
theological debates highlighting this use of custom in verifying the Prophets’ miracles is
the debate on causality. Since the Qurʾan speaks repeatedly about the God-given ability
of the Prophets to break the conventional order of the universe in the form of miracles,
Muslim theologians, particularly the Ashʿaris, discussed the relationship between causes
and effects in terms of customary association by means of which effects occur with, rather
than because of, their causes.16 God can break this customary association at will, and there-
fore, this causal connection between causes and effects should not be seen as necessary or
independent (of God’s will). This divine cosmic custom manifested in the relationships
governing the different natural objects was also extended to include the human condition
as well as the human experience of the created world. Recognition of this notion of custom
as a type of rational proof in juristic discourses can be explored in debates concerning ver-
ification of reports, particularly of the successive type (mutawātir) and also on establishing
the authority of consensus (Ijmāʿ). While these two concepts are often vindicated on the
basis of textual grounds, some jurists appealed to custom in order to establish their feasi-
bility and also authority. For example, in his discussion on the types of reports, al-Juwayni
distinguished three main types: reports that can be categorically trusted; reports that can
be categorically rejected; and reports that cannot be either trusted or rejected categorically.
The first type includes definitive reports denoting necessary knowledge and those that are
conveyed through continuous successive narration (tawātur) as supported and confirmed by
established conventions and credible circumstantial evidence. A successive report is one
that was conveyed by such a large number of narrators that it would be inconceivable to
discredit all of them. It is this type of reports that is used to support the Prophets’ miracles
as they were successively reported from one generation to the other.17 The role of custom in
verifying and supporting Prophets’ miracles, therefore, is twofold. On the one hand, cus-
tom indicates the distinctive character of a miracle; namely, its ability to break conventional
norms and common customs. On the other hand, custom also supports the veracity of a
miracle; namely, its reliance on customarily credible reporting through succession (tawātur).
The second (discredited) type includes reports that contradict what is deemed necessary
knowledge, conventional norms; or established customs. For example, if a report purports
to convey a major event that requires a large number of witnesses, it must be corroborated
by multiple supporting reports by several narrators rather than a single isolated report. If it
fails to secure such corroborative evidence, it must then be rejected due to its contradiction
of common conventions. The third type includes the majority of solitary (āh․ād) reports
that denote speculative rather than definitive knowledge.18 In major part, the argument
used to support the rational feasibility and also authority of tawātur is also used to support
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Ayman Shabana
the feasibility and authority of Ijmāʿ especially with regard to major fundamental principles
rather than individual speculative rulings. But even in the case of the latter, Ijmāʿ would not
be inconceivable. For example, in support of the feasibility of Ijmāʿ, al-Juwayni put forth
the argument that consensus of the jurists goes against the general tendency of reasonable
individuals to disagree rather than to agree. Earlier precedents of consensus must, therefore,
be based on strong credible supporting evidence. He does not even rule out the possibility
that this original supporting evidence might itself over time be lost or forgotten while the
resultant consensus remains intact.19
3 Custom in the legal tradition: classifications,

authority and applications
Juristic discussions over the concept of custom reveal the numerous classifications that the
jurists developed on the basis of different considerations. For example, with regard to its
source, custom is divided into two main types: customs initiated by Shariʿah and customs
initiated by people. Shariʿah-based customs refer to specific meanings and usages of particu-
lar terms in the idiom of Shariʿah such as the specific meanings of words such as prayer (s․alāt)
and fasting (s․awm). When these words are used within the context of juristic discussions,
they refer to their idiomatic meaning within Shariʿah rather than their literal meanings
indicating supplication and abstention respectively. Human customs, on the other hand,
denote customs originating in people’s actions and common practices. While Shariʿah-based
customs are mainly linguistic in nature due to their articulation within the foundational
sources, human customs include, in addition to linguistic conventions, also practice-based
customs. This, in turn, marks one of the important binary classifications of custom on the
basis of its originating cause: verbal or linguistic custom (ʿUrf qawlı̄) and practical custom
(ʿUrf ʿamalı̄ or fiʿlı̄). In general, linguists recognize custom as one of the main sources for
the definition of meaning and signification of terms. For example, while the term dābba can
refer to any animal, it is conventionally used to refer either to a horse or a donkey. Similarly,
while the Qurʾan uses the word lah ․m (meat) to refer to fish, its conventional usage does
not include this type of meat.20 The role that this linguistic dimension of custom plays in
the construction of legal rules has been recognized almost unanimously as one of the main
manifestations of custom in the Islamic legal tradition. Linguistic conventions are further
divided into two main types: singular (e.g. dābba and lah․m) and compound (e.g. idiomatic
expressions and phrases). For example, when the Qurʾan speaks about prohibition of female
relatives, what is meant is prohibition of marrying one’s female relatives.21 Practical customs,
on the other hand, refer to common practices, which would include both people’s habitual
practices in their private or social lives on the one hand and common practices involved in
their civil transactions, on the other. Examples of the former include what people eat, how
they dress, and how they communicate with each other. Similarly, many etiquettes in the
area of social ethics are defined by common (expected) customs such as proper treatment
of guests, neighbors and friends. Famous examples in the area of transactions that are often
cited in juristic discussions involve definition of unspecified variables such as: length of stay
at public bathhouses; ancillary rights associated with the sale of certain types of property;
average amounts; and means of measurement.22 Both linguistic and practical customs are
divided, in terms of their scope and degree of circulation, into two main types: general
and specific. The former includes universal customs that are prevalent among Muslims or
throughout Muslim lands. The latter includes customs that are specific to certain regions,
communities or professional groups.
290
In addition to these main classifications of custom, further classifications were also devised
on the basis of other considerations such as their compatibility with Shariʿah and continuity.
With regard to their compatibility with Shariʿah, customs are divided into three main cate-
gories: compatible, incompatible and unstated. Compatible customs include pre-Islamic Ara-
bian customs that were approved by the Prophet and were subsequently incorporated within
the Islamic normative system, such as placing responsibility for blood money on one’s ag-
natic relatives. Incompatible customs include the ones that were condemned by the Prophet
and were therefore rejected, such as certain types of marriage, female infanticide, drinking
wine and dealing in usury. Unstated customs include the ones that are not clearly specified
in Shariʿah and that require close analysis in light of the fundamental principles of Shariʿah
as well as its relationship to other approved and disapproved customs. Abu Is haq al-Shatibi
(d. 790/1388) divides this type into two categories. The first are fixed habits (ʿādāt), which
he links to basic human instincts and natural propensities such as one’s need to eat, drink and
communicate. Such fixed habits are implied in the various rulings of Shariʿah. The second
are changing habits, which include a wide range of customs associated with particular cul-
tural contexts (e.g. dress code), geographical conditions (e.g. age of maturity) or economic
standards (e.g. type of currency).23
Clearly these various classifications of custom bear a significant degree of overlap but they
demonstrate the extent to which custom has been embedded in the wide spectrum of both
legal theory and substantive law. Most significantly these classifications are often invoked
within the context of discussions addressing the various applications of custom in the legal
tradition. Surveys of this subject often indicate several important applications of custom,
which include: its use as a subsidiary legal source; its use in the articulation and construction
of general legal rules; and its use as a type of circumstantial evidence.24
The perception of custom as a subsidiary legal source signifies one of the most famous
roles that custom is assumed to play. This qualified designation of custom as a legal source
is meant to rule out its use as an absolute or independent legal source, which would run
counter to the role of Shariʿah as the supreme legal source, by means of its embodiment of
the divine will. In support of this view of Shariʿah, Muslim jurists often make the argument
that people develop both good and bad customs, as can be demonstrated throughout the
course of human history. Within an Islamic normative system, Shariʿah should serve as the
ultimate judge to determine agreeable and disagreeable customs. This role of custom is
illustrated by numerous examples, such as istis․nāʿ, in which custom is in essence supported
by another source such as juristic consensus. Subsequently, some jurists also used the orig-
inal justification of consensus, such as people’s need, in order to make similar applications
of custom. In other words, people resort to certain practices due to particular needs, which
over time turn into common practices or customs. This approach was particularly pursued
in cases of contested consensus. This original justification may also include other general
considerations such as necessity, removal of hardship or harm, or original permissibility.
This function of custom as a subsidiary legal source is substantiated by numerous references
in legal manuals and is also captured in legal maxims such as: ‘What is established by custom
is in essence established by a sharʿı̄ evidence’.25
Another important application of custom is its role in the construction of particular rul-
ings in light of general legal principles. Although most of the examples demonstrating this
function of ʿUrf relate to financial transactions (e.g. the concept of the average), many other
examples are also found in the various legal sections. An illustrative example from the penal
system is determination of a suitable type of discretionary punishment for a particular legal
infraction. Islamic criminal law specifies three types of punishments: stipulated crimes and
291
Ayman Shabana
their punishments (h․udūd); retaliation (qis․ās․); and discretionary punishments (taʿzı̄r). Unlike
the first two types, discretionary punishments are not clearly delineated. They are left to be
determined by experts in light of contemporary circumstances in a manner that serves the
intended goals of the penal system (e.g. deterrence).26
Reference to custom as a type of circumstantial evidence represents another important
usage of the concept. Such usage is meant to obviate the need to provide explicit articulation
for certain presumed details. For example, the food presented by a host to a guest involves
an implicit permission to eat it even without further explicit reference. This contextual ev-
idence is based on common customs pertaining to etiquettes of hospitality. Similarly, this
usage of custom is invoked to define customary standards governing various legal rules across
the wide spectrum of the Islamic legal corpus. For example, in the area of transactions it is
used within the context of the sale or lease of certain types of property, either separately or
in combination with other associated items.27
The domain of legal implementation has been one of the important contexts illustrating
the role of custom in the continued process of legal construction, as demonstrated in the fatwa
and judgeship literature. To begin with, knowledge of and familiarity with custom has been
one of the important qualifications of a competent mufti or judge. Moreover, it has been
emphasized that custom-based rules ought to change once the underlying customs change.28
Within the heritage of the various legal schools, numerous examples demonstrate how later
jurists modified certain legal rules to keep up with changing socio-historical circumstances.29
For example, one of the conditions for the validity of instituting a charitable endowment
is that it must be done on a permanent basis (taʾbı̄d), which is usually taken to apply to im-
movable properties. Later Hanafi jurists, however, adopted the opinion attributed to Abu
Yusuf and al-Shaybani allowing the endowment of movable items, including cash waq f, on
the basis of common custom.30 Similarly, determination of the units of measurement for the
six items subject to the prohibited usury (gold, silver, wheat, barley, dates and salt) is based
on Prophetic reports indicating that while gold and silver are to be measured by weight, the
other items are to be measured by volume. The majority of jurists held, on the basis of this
Prophetic report, that these units of measurement should remain indefinitely as the standard
units of measurement. Later Hanafi jurists, however, adopted the opinion of Abu Yusuf that
such units of measurement should be determined on the basis of the common custom. Abu
Yusuf argued that reference to weight and volume in the Prophetic report was based on the
common custom in Medina at the time of the Prophet. In other words, the report merely
cited these standard units and did not necessarily mean to fix them indefinitely. Accordingly,
if these units were to change, due to changing circumstances, the rulings associated with them
have to change as well.31
Eventually, in light of the above-mentioned classifications and applications, custom
emerged as one of the five main legal maxims underlying and guiding the various Shariʿah-
based rulings, often rendered as: custom is to be used as a basis for judgement (al-ʿāda muh ․ak-
kama). This principal maxim inspired a number of derivative maxims, which cover its main
legal applications within the legal corpus of the various legal schools.32 The example of the
Ottoman Majalla (Mecelle) and its codification of a Hanafi-based civil law demonstrates the
gradual consolidation of custom within the legal maxims genre. The work opens with a list
of 100 maxims governing the various rulings that it contains, out of which ten highlight
the role of custom. In addition to the main maxim mentioned above, other relevant maxims
include: widespread usage is authoritative and must be acknowledged; what is customarily
impossible is impossible in reality; change of rules in different time periods cannot be denied;
real or literal meaning of linguistic expressions can be superseded by customary indications;
292
custom is acknowledged only if it is recurrent or prevalent; reliance should be on what is

common, not what is rare; what is known by custom is equal to what is known by (con-
tractual) stipulation; what is known among merchants is equal to explicit stipulations; and
(implicit) determination by custom is equal to explicit determination.33
Turning to the question of the authority (h․ujjiyya) of custom, it can be explored in two
main contexts. The first investigates the textual evidence invoked to support and justify its
legitimacy (as discussed above with regard to associated terms under conceptualization of
custom). The second investigates its relationship to other legal sources, especially in cases of
conflict. Starting with textual sources, the jurists make a distinction between a concurrent
or contemporaneous custom and a subsequent one. With regard to the former, the jurists
are in agreement that specific textual indications cannot be trumped by custom. The only
exception made for this scenario is the case of a text whose ruling is justified by custom, as is
the case with the opinion of Abu Yusuf on the criteria for the determination of measurement
units. They are also in agreement on the authority of linguistic conventions to specify gen-
eral textual indications. They, however, disagreed on the authority of practical customs to
specify general textual indications. While the majority of jurists argue that practical customs
cannot specify the indication of general texts, the Hanafis and Malikis reportedly allowed
this possibility, especially if the custom in question is a general rather than a specific one.34
On the other hand, if the custom in question is subsequent to the foundational text, the ju-
rists are in agreement that the former cannot trump the latter in cases of conflict.35 Beyond
the domain of textual sources, cases of conflict between custom and other types of legal
sources are usually discussed under the general theme of juristic preference (istih ․sān), espe-
cially in light of the fact that custom is considered one of the important grounds on the basis
of which an argument for juristic preference is made.
On the basis of the various scattered discussions on custom in the pre-modern legal tradi-
tion of the various legal schools, modern scholars deduced several conditions for the recog-
nition of a given custom. Most sources emphasize that a valid custom is one that is: recurrent
(mut․․tarid) and widely circulated (ghālib); not incompatible with a clear Shariʿah-based text;
well established at the time of its invocation; and not contradicted by an explicit (contrac-
tual) statement. In addition to these four main conditions, some sources also indicate that a
custom must be general or universal, not specific. 36 Disagreement on this condition is traced
back to a debate among pre-modern jurists, particularly within the Hanafi and the Shafiʿi
schools.37
4 Shariʿah and custom in the modern period

The gradual and incremental development of the role of custom in the Islamic legal tra-
dition, as outlined above, continued to evolve in the modern period despite the sudden
eclipse of Shariʿah, which was precipitated by European colonial structures. By the end of
the First World War, most Muslim-majority countries came under direct or indirect Euro-
pean colonial influence, which in most cases resulted in total overhaul of indigenous legal
systems and introduction of European codes. For example, in the Middle East, the declining
Ottoman Empire strove to meet increasing demands for reformation by introducing several
reform edicts, known as tanzimat, but the mounting pressures proved more challenging and
eventually caused the abolition of the caliphate and disintegration of the Ottoman Empire.
In fact, some recent studies trace the beginning of legal modernization in this region not to
European influences going back to the 18th and 19th centuries but rather to earlier Ottoman
reforms, particularly during the 16th century. These early Ottoman reforms brought about
293
Ayman Shabana
gradual institutionalization of the law, which in turn translated into more control of the legal
process by the state through the issuance of unified state laws or qawānı̄n.38 This is illustrated,
for instance, by the first civil marriage law of 1521, which demanded that all marriage con-
tracts be registered before a court judge.39 What is interesting to note here is that not only
was custom able to survive these recurrent legal reform efforts but it remained one of the
main sources for their implementation. Within these earlier Ottoman modernization efforts,
communal custom had a complex relationship with the unified qawānı̄n as it continued to
represent local social and cultural patterns against the empire’s attempt to enforce legal cen-
tralization and standardization.40 Starting with the colonial era, the tension between custom
and qānūn gradually morphed into a tension between custom and Shariʿah itself as illustrated
in the Egyptian Civil Code of 1949, which placed custom as its second main source preceded
only by legislation and followed by the principles of Shariʿah and lastly by the principles of
natural law and equity.41 Writing in 1953 on the status of civil codification in the Arab world,
the leading Egyptian jurist ʿAbd al-Razzaq al-Sanhuri (author of the civil code in Egypt as
well as several other Arab countries) distinguished two main models across the Arab world:
countries that developed civil codes following the French example such as Egypt, Syria,
Lebanon, Tunisia, Algeria and Morocco; and countries that developed civil codes on the
basis of the Ottoman Majalla such as Iraq, Jordan and Palestine. Apart from these two main
models, a few countries continued to follow the Islamic common (uncodified) law such as
Saudi Arabia and Yemen.42 In the Indian colonial context, the tension between Shariʿah and
custom was manifested in the creation of the Anglo-Muhammadan Law, which was applied
in British colonial courts. It was based mainly on translated and codified Hanafi legal trea-
tises but it also involved the subjective interpretation of British judges, which was informed
largely by the English common legal tradition. Not only did this codification process isolate
Islamic law from its historical and interpretive context, but it also amounted to further lim-
itations on its ability to engage creatively with local custom, which was pejoratively classified
as tribal and primitive.43 In Southeast Asia, Shariʿah was often compared and even confused
with the local ʿādāt law. Eventually the Dutch colonial administration elevated the status of
ʿādāt over that of Shariʿah and insisted that the former, upon its documentation, should be the
main source of the legal system.44 These various modes of engagement between Shariʿah and
custom during the colonial period constitute the historical context within which current
legal systems emerged in the post-colonial era. In most cases, Shariʿah has been displaced and
replaced by legal codes following modern European models. The main exception has been
the area of personal status law, which continues to derive from the rules of Shariʿah.
Apart from this interface between Shariʿah and positive legislation within the framework
of national legal systems in Muslim-majority countries, another important area for the ex-
ploration of this interface has been the Muslim-minority context.45 This new context raises
questions on the extent to which Islamic legal practice can be impacted by the social and
cultural realities that Muslims living as minorities have to contend with. Although this is
not a new phenomenon as can be attested by pre-modern juristic discourses on Muslim mi-
norities,46 the modern situation poses several new questions pertaining to equal citizenship,
limits of democratic rule and accommodation of religious demands under secular legal juris-
diction. Muslim presence in places such as Western Europe and North America has inspired
an increasing amount of scholarly literature exploring the various aspects of this presence.47
The growing realization that Muslim immigrants are not going back to their countries of
origin coincided with heightened awareness of the communal dimensions of this presence.
Both factors were behind the establishment of specialized institutions to support the needs
of the growing Muslim communities such as mosques, educational facilities and cemeteries.
294
Until recently, Muslim minorities used to rely on external resources and institutions from
Muslim majority countries for religious education and counselling before they took initia-
tives to develop home-grown institutions, which they felt would be more attentive to their
particular needs and circumstances. Currently, several reputable juristic councils already ex-
ist in Europe and in North America, which tend to focus on the specific questions facing
Muslims living as minorities in these places. Close examination of the deliberations that take
place at these institutions on questions such as political participation or status of marriage
upon conversion to Islam by only one spouse reveal the emergence of phrases such as Euro-
pean or American ʿurf.48
At the intellectual and scholarly level, the impact of these modern political, social and
legal realities in Muslim majority countries are clearly reflected in the scholarly literature
exploring the place of custom in the Islamic legal tradition. On the one hand, within the
Muslim context, Muslim writers tended to emphasize the role of custom as an important
feature that classical Muslim jurists employed in order to ensure the continued flexibility and
functionality of Shariʿah. Consequently, custom has been a standard feature in works of legal
theory (us․ūl al-fiqh) within which it almost always occupies its place among the secondary
sources of the law. In addition to works of legal theory, many other works single out cus-
tom as a subject of independent study either from a comparative interschool perspective or
within the framework of a particular school. It is important to note, however, that the main
approach that most of these works adopt is normative rather than historical, and is heavily de-
pendent on classical juristic discourses. Moreover, in light of the growing influence of West-
ern positive law, a large portion of the published literature examines custom from a Western
historical or secular legal perspective. On the other hand, within the Western context, the
issue of custom has received a great deal of attention in modern Islamic legal studies due to
its close connection with important debates over questions such as the origins and nature of
Islamic law.49
At the conclusion of this chapter it is important to reflect on the trajectory of the rela-
tionship between Shariʿah and custom in light of the overall impact of modernity and also
in light of the significant social, cultural and scientific forces that it heralded. Although
Islamic law has largely lost its privileged status as the main or sole legal system in Muslim
majority countries since the legal reformation movement, which was undertaken under
European colonial pressure, it continued to maintain its influence not only in its preserved
enclave of personal status legislation but also through its ritual and moral dimensions. It
was through these dimensions that Islamic law kept its vibrancy and vitality, which may
also explain its invocation in major moral questions facing Muslims in the modern period.
Some of the most pressing questions include, for example: inter-gender relations before the
law; political freedoms, constitutional rights and human rights concerns; modern forms
of commercial transactions; and modern applications of biomedical technology and bio-
ethical dilemmas.50 These modern social, cultural and scientific forces have immensely
transformed social reality. Their ability to generate new social patterns and customs pose
important questions to the inherited Islamic legal structure. To what extent then can these
new customs fit the classical classifications that the pre-modern jurists devised? To what
extent do they satisfy the conditions that the jurists stipulated for the recognition of a valid
custom? And ultimately, how do they fit within the current hybrid legal landscape? The
fact that these modern transformations change not only social reality but also people’s
consciousness of themselves and of the world requires that these questions should not be
limited to the narrow legal domain but must rather be addressed at a deeper theological and
philosophical level.
295
Ayman Shabana
Acknowledgement
This publication was made possible by NPRP grant # NPRP8-1478-6-053 from the Qatar National
Research Fund (a member of Qatar Foundation). The statements made herein are solely the responsi-
bility of the author.
Notes
1 See, for example, Harold J. Berman and Samir Saliba, The Nature and Function of Law (New York:
Foundation Press, 2009), 16–24. The authors compare the definition of law according to three
main legal schools: the analytical-positivist school, the philosophical-moralist school, and the
h istorical-traditionalist school. While the first school emphasizes the role of a sovereign political
authority in the definition of law, the second emphasizes the role of morality as well as agreement
with the dictates of natural law and the third school emphasizes the role of the social-historical
context within which a legal system emerges. Instead of supporting any one of these perspectives,
the authors suggest a more integrative approach that incorporates these three dimensions and con-
centrates on the function of the law as a social institution that aims primarily to preserve social
order.
2 A. Arthur Schiller, ‘Custom in Classical Roman Law’, in Folk Law: Essays in the Theory and Practice of
Lex Non Scripta, ed. Alison Dundes Renteln and Alan Dundes (Madison: University of Wisconsin
Press, 1994), vol. 1, 35. Alan Watson notes that the two main elements in European law – in the
post Roman period to the beginning of the 18th century – have been Roman law and custom be-
cause during this intermediary period European lawyers were mainly concerned with harmonizing
these two elements; see Alan Watson, ‘An Approach to Customary Law’, ibid., 141.
3 For surveys of the role and place of custom in these legal systems, see ibid. 49–110.
4 David J. Bederman, Custom as a Source of Law (Cambridge: Cambridge University Press, 2010), 4.
5 Amanda Perreau-Saussine and James Bernard Murphy, ‘The Character of Customary Law: An
Introduction’, in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, ed.
Amanda Perreau-Saussine and James Bernard Murphy (Cambridge: Cambridge University Press,
2007), 1.
6 Ahmad Fahmi Abu Sunna, Al-ʿUrf wa-l-ʿAda fi Raʾy al-Fuqahaʾ (Cairo: Dar al-Bashaʾir, 2004), 31.
7 In 8:199 it is used as a synonym of maʿruf and in 77:1 it is used in the sense of maʿruf again, or as an
adverb meaning following each other; see Al-Raghib al-Isfahani, Al-Mufradat fi Gharib al-Qurʾan
(Beirut: Dar al-Maʿrifa, n.d.), 332. For more on the meaning of the term ʿUrf, its origin and deriv-
atives, see Ibn Manzur, Lisan al-ʿArab, 18 vols (Beirut: Dar Sadir, 2008), vol. 10, 112.
8 Toshihiko Izutsu, Ethico Religious Concepts in the Qurʾān (Montreal: McGill–Queen’s University
Press, 2002), 214.
9 For a discussion of these references in the foundational sources, see my Custom in Islamic Law and
Legal Theory (New York: Palgrave, 2010), 45–58.
10 Mohammad Fadel, ‘Istih ․sān is Nine-tenths of the Law: The Puzzling Relationship of Us․ūl to Furuʿ in
the Māliki Madhhab’, in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 161.
11 ʿUbaydullah b. ʿUmar al-Dabbusi, Taqwim al-Adilla fi Usul al-Fiqh (Beirut: Dar al-Kutub al-
ʿIlmiyya, 2001), 404–6; Muhammad Amin b. ʿAbidin, ‘Nashr al-ʿArf fi Binaʾ Baʿd al-Ahkam ʿala
al-ʿUrf ‘ in Majmuʿat Rasaʾil Ibn ʿAbidin, 2 parts in 1 vol. (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi,
n.d.), 2: 114.
12 See Yasin Dutton, The Origins of Islamic Law: The Qurʾan, the Muwattaʾ and Madinan ʿAmal (New
York: Routledge, Curzon, 2002), 32–52; see also Umar F. Abd-Allah, Mālik and Medina: Islamic
Legal Reasoning in the Formative Period (Leiden: Brill, 2013).
13 ʿUmar b. ʿAbd al-Karim al-Jidi, al-ʿUrf wa-l-ʿAmal fi al-Madhhab al-Maliki wa Mafhumuhuma lada
ʿUlamaʾ al-Maghrib (Rabat: Wazarat al-Awqaf wa-l-Shuʾun al-Islamiyya, 1982), 393–6.
14 ʿAbd al-Malik b. ʿAbdullah al-Juwayni, Al-Burhan fi Usul al-Fiqh, ed. ʿAbd al-ʿAzim al-Dib, 2 vols
(Mansoura: Dar al-Wafaʾ, 1999), vol. 1, 116.
15 Al-Shatibi, Al-Muwafaqat, 2: 239.
16 See Al-Shatibi, al-Muwafaqat, 1: 158.
17 Al-Juwayni, Kitab al-Irshad ila Qawatiʿ al-Adilla fi Us․ul al-Iʿtiqad, ed. Muhammad Yusuf Musa and
ʿAli ʿAbd al-Munʿim ʿAbd al-Hamid (Cairo: Maktabat al-Khanji, 2002), 345.
18 Al-Juwayni, al-Burhan, vol. 1, 378–88.
296
19 Al-Juwayni, al-Burhan, vol. 1 431–8. From a different perspective, a similar argument has also been
used within the modern Shiʿi context to support the argument that a lay practitioner must follow
the opinion of a learned scholar in Shari’ah-related matters (taqlid). The rational argument used is
the common custom that the ignorant often turns to the learned for advice. See L. Clarke, ‘Shiʿi
Construction of Taqlid’, Journal of Islamic Studies 12(1) (2001): 43.
20 Ibrahim ibn ʿAli al-Shirazi, Al-Lumaʿ fi Usul al-Fiqh, ed. Muhyi al-Din Dib Mistu and Yusuf ʿAli
Bidiwi (Beirut: Dar al-Kalim al-Tayyib, 1995), 40–2.
21 Ahmad ibn Idris al-Qarafi, Kitab al-Furuq, eds., Muhammad Ahmad Siraj and ʿAli Jumʿa Muham-
mad, 4 vols (Cairo: Dar al-Salam, 2001), vol. 1, 307.
22 Mustafa al-Zarqa, Al-Madkhal al-Fiqhi al-ʿĀmm, 2 vols (Damascus: Dar al-Qalam, 2012), vol. 2,
876–94.
23 Al-Shatibi, al-Muwafaqat, 2: 242–3. For more on Al-Shatibi’s treatment of custom, see my ‘ʿUrf and
ʿAdah Within the Framework of al-Shatibi’s Legal Methodology’, UCLA Journal of Islamic and Near
Eastern Law (2006–2007): 87–100.
24 Abu Sunna, Al-ʿUrf wa-l-ʿAda, 60–100.
25 ‘Al-thābit bi-l-ʿUrf thābit bi-dalil sharʿi’, ibid. Another legal maxim indicates that ‘forcing people to
ignore their customs constitutes great hardship’ ( fi nazʿ al-nās ʿan ʿādātihim haraj ʿazim).
26 Abu Sunna, Al-ʿUrf wa-l-ʿAda, 84. For a discussion on the role of custom within the structure of the
Islamic penal code, see Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation,
and Islamic Criminal Law (Cambridge: Cambridge University Press, 2014); and Luqman Zakariyah,
‘Custom and Society in Islamic Criminal Law: A Critical Appraisal of the Maxim “al-ʿAda Muhak-
kamah” (Custom is Authoritative) and its Sisters in Islamic Legal Procedures’, Arab Law Quarterly
26 (2012): 75–97. For example, Rabb discusses the role of Medinan practice in the definition of
punishable crimes according to the Maliki school (ibid., 160). Linguistic convention was also used
to determine the hand to be amputated in the punishment for theft (ibid., 174).
27 See Al-ʿIzz b. ʿAbd al-Salam, Al-Qawaʿid al-Kubra, al-Mawsum bi-Qawaʿid al-Ahkam fi Islah al-Anam,
ed. Nazih Kamal Hammad and ʿUthman Jumʿa Dumayriyya (Damascus: Dar al-Qalam, 2000), 2:
225–37; Ibn ʿAbidin, ‘Nashr al-ʿArf ’, 136.
28 Al-Qarafi, Kitab al-Furuq, vol. 1, 314; Ibn al-Qayyim, Iʿlam al-Muwaqqiʿin ʿan Rabb al-ʿAlamin,
2 parts in 4 vols (Cairo: Dar al-Hadith), 2: 5.
29 Wael Hallaq, ‘From Fatwas to Furuʿ: Growth and Change in Islamic Substantive Law’, Islamic Law
and Society 1 (1994): 50.
30 See Muhammad Amin Ibn ʿAbidin, Radd al-Muhtar ʿala al-Durr al-Mukhtar, Sharh Tanwir al-Absar,
ed. ʿAdil Ahmad ʿAbd al-Mawjud and ʿAli Muhmmad Muʿawwad, 13 vols (Riyadh: Dar ʿAlam
al-Kutub, 2003), vol. 6, 555–6; Abu Sunna, Al-ʿUrf wa-l-ʿAda, 242; Miriam Hoexter, ‘Qādi, Mufti
and Ruler: Their Roles in the Development of Islamic Law’, in Law Custom, and Statute in the Mus-
lim World, ed. Ron Shaham (Leiden: Brill, 2007), 73.
31 Ibn ʿAbidin, ‘Nashr al-ʿArf ’, 118; Abu Sunna, Al-ʿUrf wa-l-ʿAda, 244.
32 See for example, Jalal al-Din ʿAbd al-Rahman al-Suyuti, Al-Ashbah wa-l-Nazaʾir, 2 parts in 1 vol., ed.
Muhammad Muhammad Tamir and Hafiz ʿAshur Hafiz (Cairo: Dar al-Salam, 2004), 1: 221. Al-Suyuti
discusses the meaning of this legal maxim and its applications in the Shafiʿi school. Zayn al-ʿAbidin
b. Ibrahim b. Nujaym, Al-Ashbah wa-l-Nazaʾir, ed. ʿAdil Saʿd (Cairo: al-Maktaba al-Tawfiqiyya, n.d.),
101. Similarly, Ibn Nujaym discusses the meaning of this legal maxim and its applications in the
Hanafi school. While al-Suyuti lists five cardinal maxims (actions are judged according to the inten-
tions of their agent, certainty cannot be removed by doubt, hardship triggers ease, harm cannot be
removed by harm, and custom is to be used as a basis for judgement), Ibn Nujaym lists six (adding: no
reward without intention). For more on custom as one of the main legal maxims, see Yaʿqub b. ʿAbd
al-Wahhab al-Bahusayn, Qaʿidat al-ʿAda Muhakkama (Riyadh: Maktabat al-Rushd, 2004).
33 ʿAli Haydar, Durar al-Hukkām, Sharh Majallat al-Ahkām, trans. Fahmi al-Husayni, 4 vols (Beirut:
Dar al-Kutub al-ʿIlmiyya, 2010), vol. 1, 40–7.
34 Ibn ʿAbidin, ‘Nashr al-ʿArf ’, 114–15; Al- Zarqa, Al-Madkhal, vol. 2, 908–18.
35 Al-Zarqa, Al-Madkhal, vol. 2, 919.
36 Al-Zarqa, Al-Madkhal, vol. 2, 897–902; Abu Sunna, Al-ʿUrf wa-l-ʿAda, 105–23; Al-Mawsuʿa al-
Fiqhiyya, 2nd edn, 45 vols (Wazarat al-Awqaf wa-l-Shuʾun al-Islamiyya, 2009), vol. 30, 58–60. On
the basis of his analysis of Ibn ʿAbidin’s treatise on custom, Ahmad Atif Ahmad concludes that Ibn
ʿAbidin developed a tripartite doctrine of custom on the basis of which a valid social custom must
be of: ‘(1) universal circulation, (2) residing nature, and (3) capacity to be reconciled with basic
297
Ayman Shabana
Qurʾanic and Sunnaic doctrines’. See Ahmad Atif Ahmad, Islam, Modernity, Violence, and Everyday
Life (New York: Palgrave Macmillan, 2009), 102.
37 Al-Suyuti, Al-Ashbah wa-l-Nazaʾir, 229; Ibn Nujaym, Al-Ashbah wa-l-Nazaʾir, 110; Ibn ʿAbidin,
‘Nashr al-ʿArf ’, 116; Haydar, Durar al-Hukkam, 41, 132.
38 On the definition of qanun, see Khaled Abou El Fadl, ‘Qanun’, in Encyclopedia of Islam and the Mus-
lim World, ed. Richard Martin (New York: Macmillan Reference USA, 2004), vol. 2, 560–1.
39 Reem Meshal, Shari’ah and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of
Ottoman Cairo (Cairo: The American University in Cairo Press, 2014), 155.
40 Meshal, Shari’ah and the Making of the Modern Egyptian, 214.
41 ʿAbd al-Razzaq al-Sanhuri, ‘Al-Qanun al-Madani al-ʿArabi’, in Islamiyyat al-Sanhuri Basha, 2 vols,
ed. Muhammad ʿImarah (Mansoura, Egypt: Dar al-Wafaʾ, 2006), vol. 2, 541.
42 Ibid., 540.
4 3 Wael Hallaq, Shariʿa, Theory, Practice, Transformation (Cambridge: Cambridge University
Press, 2009), 376; Mustafa Baig and Robert Gleave, ‘Customary Law’, in Encyclopedia of Islam
and the Muslim World, ed. Richard Martin (New York: Macmillan Reference USA, 2016), vol.
2, 647–9.
4 4 Hallaq, Shariʿa, 394.
45 Said Fares Hassan, Fiqh al-Aqalliyat: History, Development and Progress (New York: Palgrave Macmil-
lan, 2013).
46 Khaled Abou El Fadl, ‘Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim
Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries’, Islamic Law and Society
1(2) (1994): 141–87.
47 See, for example, Julie Macfarlane (ed.), Islamic Divorce in North America: A Shariʿa Path in a Secular
Society (Oxford: Oxford University Press, 2012) and Rubya Mehdi and Jorgen S. Nielsen (eds),
Embedding Mahr in the European Legal System (Copenhagen: DJORF Pub., 2011).
48 Alexandre Caeiro, ‘Transnational Ulama, European Fatwas, and Islamic Authority: A Case Study
of the European Council for Fatwa and Research’, in Producing Islamic Knowledge, Transmission and
Dissemination in Western Europe, ed. Martin Van Bruinessen and Stefano Allievi (New York: Rout-
ledge, 2011), 135.
49 For a representative list of these works, see my Custom in Islamic Law, 17–42 and ‘Custom in the
Islamic Legal Tradition’, in The Oxford Handbook of Islamic Law, ed. Anver Emon and Rumee
Ahmed, (Oxford: Oxford university Press, 2018), 231–48. http://www.oxfordhandbooks.com/
view/10.1093/oxfordhb/9780199679010.001.0001/oxfordhb-9780199679010-e-35 (accessed 24
July 2018).
50 For example, on gender issues, see Ahmad, Islam, Modernity, Violence, and Everyday Life, 106 (raising a
question about the possibility of arguing for equal privileges in the Islamic law of divorce in light of
Ibn ʿAbidin’s treatment of custom). For constitutional and human rights concerns, see Khaled Abou
El Fadl, ‘Cultivating Human Rights: Islamic Law and the Humanist Imperative’, in Law and Tradition
in Classical Islamic Thought, ed. Michael Cook et al. (New York: Palgrave Macmillan, 2012), 170 (ob-
serving that ‘before becoming effective laws, human rights are embedded in individual consciences
and collective wills expressed as cultural practices’). See also, in general, Abdulaziz Sachedina, Islamic
and the Challenge of Human Rights (Oxford: Oxford University Press, 2009). On economic issues, see
Alexandre Caeiro, ‘The Social Construction of Shariʿa: Bank Interest, Home Purchase, and Islamic
Norms in the West’, Die Welt des Islams 44(3) (2004): 351–75 (analysing a fatwa by the European
Council for Fatwa and Research on the topic of home mortgages). On modern bioethical issues, see
Abdulaziz Sachedina, Islamic Biomedical Ethics (Oxford: Oxford University Press, 2009).

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Ibn ʿAbidin, Muhammad Amin. Radd al-Muhtar ʿala al-Durr al-Mukhtar, Sharh Tanwir al-Absar, ed. ʿAdil
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17
Jihad, sovereignty and jurisdiction
The issue of the abode of Islam
Ahmed Al-Dawoody
Introduction
Jihad is in the eye of the beholder! To a great extent this phrase reflects the current state of the
attempts to answer the question of what is jihad as understood from the Islamic normative
sources and/or as practised by Muslims throughout Islamic history. As an Islamic doctrine,
jihad developed in the earliest Islamic formative periods with the aim of fulfilling certain
objectives in specific contexts or, put differently, in response to certain contexts. Since ji-
had (literally struggle, exerting effort) must be fı̄ sabı̄l Allah (in the path of God), namely to
struggle to achieve an objective that is desirable to God, it has theological, legal and ethical
aspects, not necessarily separated, but even generally intertwined. Achieving such objectives
could be done spiritually/peacefully (al-jihād al-akbar, the greater jihad) or violently (al-jihād
al-as․ghar, the lesser jihad), and individually or collectively. In the Qurʾan, derivatives of jihad
occur 41 times both during the Meccan and Medinan periods and only 12 occurrences refer
to fighting contexts.1 In the Meccan period, Muslims lived as a persecuted religious minority
who were unable to practise their religion freely and were not permitted to use force as a
means of self-defence. But after the Muslims’ hijra (flight) to Medina, jihad in the sense of an
armed struggle was permitted to the persecuted Muslim community against their enemies
and within a little over a decade of Prophet Muhammad’s life in Medina, the use of jihad as
a defensive war helped the survival of the nascent Islamic state established by the Prophet in
Medina. In a word, in this formative period, the Prophet’s lifetime, the incidents of jihad fı̄
sabı̄l Allah in the sense of an armed struggle were used merely as a defensive war. However,
this chapter argues that a core factor that lies in the heart of the Sunni classical and some
modern Muslim jurists’ discussions of the doctrine of jihad during both the second formative
period (the first four centuries of the Islamic era) and the post-colonial era is the implemen-
tation and application of Islamic law. Therefore, the overarching factor in the twofold or
tripartite divisions of the world devised by the classical Muslim jurists and one of the main
duties of the establishment of the institution of the caliphate is the application of Islamic law.
This factor gives new parameters to the study of the Islamic tradition of war and indicates
the significance of the contemporary calls for the establishment of the Islamic state/caliphate.
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1 Justification for jihad

The history of the interaction, and more specifically the fighting incidents that took place, be-
tween the Muslims and their enemies during Prophet Muhammad’s lifetime and the Qurʾanic
texts addressing this subject form the basis upon which Muslims derive the Islamic justifications
and regulations for going to war. Classical Islamic jurists considerably succeeded in developing
the Islamic regulations for going to war, while paying little attention to the question of the jus-
tifications for going to war because a state of hostility was the norm in their pattern of interna-
tional relations unless a peace treaty was bilaterally concluded. Moreover, early Islamic history
shows that the advent of Islam created a wave of hostility and aggression against the believers in
Islam because it endangered the religio-socio-political power of the Arab idolaters. The Proph-
et’s following words indicating rejection of the Meccans’ temptations to give up the call for the
religion of Islam is quite revealing: ‘By God, if they [the Meccan idolaters] put the sun in my
right hand and the moon in my left so that I abandon this matter [the religion of Islam], I will
not until God establishes it or I perish’ (emphasis added). Muslims were unable to practise their
religion freely during the Meccan period and, by way of example, they were unable for the first
13 years of the advent of Islam to build a mosque in Islam’s birthplace, Mecca. Only after the
flight to Medina did Muslims manage to build a mosque and establish their religion. The flight
to Medina was an attempt to survive persecution and, no less importantly, practise/establish the
religion of Islam. The first permission to engage in fighting was given to the Muslims following
their flight from Mecca to Medina in the following Qurʾanic text:
Permission to [engage in fighting] is given to those against whom war is waged because
they have been wronged; verily God is able to give them victory. Those who have been
expelled from their homes unjustly and only for saying: God is our Lord; had not God
permitted people to defend themselves against [the aggression of ] others, monasteries,
churches, synagogues and mosques, wherein the name of God is oft-mentioned, would
be pulled down; certainly God will support those who support Him; indeed God is All-
Strong, All-Mighty.2
This text clearly indicates that jihad is justified in cases of religious persecution, not only
the physical attacks directed against the individual followers of the above religions, but also
against the establishment of these religions since the above houses of worship are mentioned
as symbols of the establishment of the respective religions they belong to. Other text 3 asks
the Muslims to go to war to rescue the oppressed weak Muslim minority who were also
subjected to oppression because of their religious beliefs. Furthermore, the controversially
interpreted concept of fitna is given as a justification for going to war in many Qurʾanic
texts.4 Fitna is interpreted by some exegetes and jurists as torture and religious persecution of
Muslims to force them to apostatize from Islam, while it is interpreted by some as unbelief
in God. These two interpretations diametrically change jihad from a defensive just war to
prevent religious persecution, according to the first interpretation, to an offensive holy war
to force unbelievers in God to accept Islam, according to the second.
But the exegetical theory of abrogation which means that a Qurʾanic ruling abrogates
its previous ruling(s) caused a trend among Muslim jurists to unwarrantedly adopt a rather
purely methodological approach to the determination of the Qurʾanic justifications for war.
Utilizing the principle of abrogation, this trend argues that since the Qurʾanic texts 9:5 and
9:29 are the last revelations on the subject of the justifications for going to war in Islam, this
trend advocates that the Qurʾanic text 9:5 indicates that polytheists are to be fought until they
become Muslims, while the Qurʾanic text 9:29 indicates that the people of the book are to be
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fought if they reject Islam and the payment of jizya (tax levied to exempt eligible males from
conscription). This sharp mathematical theory ignores the totality of the Qurʾanic message
and contradicts the practise of the Prophet and the succeeding Muslims generations. But the
majority maintains, as expressed specifically in the words of modern Muslim scholars, that
jihad is a defensive war to defend: 1) the occupation of the Muslim territories; 2) fitna (perse-
cution) of Muslims;5 and 3) the prevention of preaching Islam. Preventing the proselytization
of Islam as a justification for going to war is quite revealing because it indicates the unique
and central place of establishing and practising the religion of Islam in the Islamic just war
tradition. It is worth adding here that classical Muslim jurists divided jihad into two catego-
ries: jihād al-dafʿ (defensive war) and jihād al-t․alab (military campaigns to convey the message
of Islam in non-Muslim territories). Apart from jihād al-dafʿ, the interesting question here is
how Muslim scholars justified the jihād al-t․alab and will it be permitted for Muslims to resort
to this type of jihad in the present time. Since Islam is a message for all humanity and Muslims
are required to preach it to the rest of the world, the early Islamic state resorted to jihād al-
․talab or what is described in Islamic history as the futuh ․āt (militarized missionary campaigns)
because preaching Islam was not permitted in the non-Muslim territories at that time. It is
worth adding here that the decision to initiate a jihād al-t․alab is left to the caliph and must be
conducted under his command. But at present, anyone can preach Islam in or to any part of
the world even without having to physically be present in such territories. In addition to the
fact that the modern world recognizes the right of freedom of religion and freedom of ex-
pression, Muslims can preach Islam via the internet or other media of mass communication.
According to Islamic law, any act taken under duress is null and void and hence accepting
Islam under duress is not valid6 and, by the same token, apostatizing from Islam under duress
is pardonable.7 Hence, in the jihād al-t․alab, Muslims are obliged to start with introducing
the religion of Islam to the non-Muslim territories and if they reject it, then they are to pay
the jizya to the Islamic state in return for the protection it guaranteed to such territories.
In fact, the acceptance of the payment of jizya – which is a pre-Islamic tradition – indicates
the absence of hostility between the concluding members and that they have the right of
the practice of their religion. Had the motive of jihad been to force non-Muslims to accept
Islam, jizya should not have been accepted from them. Although this refutes the claim that
jihad is a tool to force non-Muslims to accept Islam, this still leaves the question of the nature
of the jihād al-t․alab unsettled. That is because if the above discussion refutes the claim of the
universalization of the religion of Islam, it may indicate, first, that the Islamic state aimed at
the universalization of Islamic rule or, second, merely the collection of the jizya tax and other
economic advantages or, third, as argued by many modern Muslim scholars whether labelled
as reformers, apologetics or otherwise, at removing the oppressive Persian and Roman em-
pires who were ruling over most of the world at the time of the Islamic futuh․āt. It should be
added here that this chapter focuses on the Islamic normative sources and not on the history
of the Islamic state practices. However, it is very likely that many Muslim rulers waged so-
called jihad in non-Muslim territories because of their ambition to annex more territories to
their rule. This is especially the case in light of the fact that many of the internecine wars that
took place among Muslims were motivated by the urge to rule.
It is interesting to find that the above three motives for jihad in addition to the refuted
claim for the universalization of Islam by force find their proponents both from within and
from outside the Islamic belief. But a quick look at the Islamic jus in bello rules (regulations
on the use of force) gives some indications into, and invalidate some of the above, justifica-
tions for jihad. Fortunately, classical Muslim jurists developed detailed and comprehensive
rules that regulate the recourse to war both in international armed conflicts (war against
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non-Muslims) and non-international armed conflicts (inter-Muslim fighting). Their sources

are mainly scriptural and regulated their primitive war situations. However, their delibera-
tions, agreements, disagreements, and rulings understandably reflect a genuine concern for
humanizing the military conflicts by not jeopardizing the lives of non-combatants and not
causing unnecessary damage to enemy property while at the same time making sure that the
Islamic restraints on the use of force will not prevent Muslims from winning the war. First
and foremost, a full-blown non-combatant immunity developed by the classical Muslim
jurists indicates that fighting is not justified against non-Muslims because of their unbelief
in Islam, but because of their belligerency. The non-combatant immunity extended to the
enemy clergy – provided that they do not engage in acts of hostilities – is just a case in point.
Furthermore, the humane treatment provided for the non-Muslim prisoners of war and the
lack of any rules that would put any kind of pressure on them to convert to Islam also dis-
prove the claim for the universalization of Islam by force.
The Islamic restraints on the use of force also includes prohibitions on the use of indis-
criminate weapons and tactics such as shooting mangonels at, or flooding, enemy fortifica-
tions, the use of poison-tipped arrows, poisoning enemy water, attacking the enemy by night,
or shooting at the human shields. In all of these cases, there are different interpretations of
the texts, deliberations, and negotiations among classical Muslim jurists. Some jurists permit
the use of such indiscriminate weapons and tactics either because their readings of the texts
lead to this permission or because their priority is winning the war and any casualty would
be justified by the military necessity or as a collateral damage. Other jurists maintain the
prohibition of such weapons and tactics because of their strict adherence to the texts and/or
the general prohibition on jeopardizing the lives of non-combatants. These approaches led to
a wide range of conflicting rulings on the restraints on the use of force and as a consequence
many contemporary terrorist groups and individuals cherry-picked certain classical rulings
to justify their terrorist acts against non-Muslim as well as Muslim victims.
In addition to the sanctity of the lives of enemy non-combatants, the Islamic jus in bello
rules indicate the sanctity of enemy property, which must be protected during hostilities
unless in case of dire military necessity. Understandably, classical Muslim jurists also differed
here in identifying what constitutes dire military necessity in various war situations, but at
least a general sense of protecting enemy property existed in the Islamic tradition of war.
For example, the prohibition on the use of indiscriminate weapons such as those mentioned
above is also based on the concern of not damaging enemy property. The instructions of
the First Caliph Abu Bakr (r. 632–634) to his army leader includes: ‘do not cut down fruit-
bearing trees; do not destroy buildings; do not slaughter a sheep or a camel except for food;
do not burn or drown palm trees’.8 It is interesting to add here that al-Shafiʿi (d. 204/820)
differentiated between lifeless and animate creatures possessed by the enemy because the
latter suffers the pains and thus any suffering that is not dictated by the military necessity
will be a sort of torture for which a person will be questionable before God. However,
animals used by the enemy in combat, such as horses, can be killed during the fighting.
Otherwise, unnecessary killings of animals or wanton destruction of enemy property falls
under the heinous crime described in the Qurʾan as causing destruction in the earth.9 Fur-
thermore, and pragmatically speaking, the fact that defeated enemy property in pre-modern
Islamic era used to be spoils of war should have alleviated the degree of damage to enemy
property. To show the sanctity of enemy property, it is suffice to mention here by way of
example that classical Islamic law books discussed whether it is permissible in case they are
short of food that the Muslim soldiers can eat and give fodder to the animals of the Muslims’
army from the property of the enemy.10 Although the permissibility is given on the basis of
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military necessity, the Islamic jus in bello rules prove the inviolability of enemy property. In
short, the above discussion reveals that these structured rules, which originally developed
as self-imposed on the Muslims, cannot simply be motivated by the urge for economic pur-
poses and, without a doubt, could have the greatest impact in humanizing the use of force.
But the hypothesis of the universalization of rule of the Islamic state as a justification for
jihad will be examined below.
2 Divisions of the world

With the incredible widespread rule of the Islamic state over territories that expanded in
three continents – Asia, Africa, and Europe – within less than a century of the advent of
Islam, second/eighth century Muslim jurists devised an interesting division of their world.
These divisions give indications into this classical Islamic paradigm of international relations
and reinforce the thesis of this chapter regarding the justifications for jihad. The interesting
question here, which is directly linked to the main thesis of this chapter, is, what do these
divisions demarcate? Do they demarcate a religious or geographical division? At the outset,
it should be pointed out that since immediately after the Prophet’s demise until its abolition
in 1924, Muslims lived under the institution of the caliphate which, at least theoretically,
unified its citizens apart from the rest of their world. But to answer these questions, the defi-
nitions of these divisions as adopted by the Muslim jurists must be examined. In fact, there
are some jurists that divided their world into three divisions, namely, dār al-Islām, dār al-h ․arb,
and dār al-s․ulh
․, while others were content with only the first two.
Dār al-Islām (house of Islam), also called dār al-salām (house of peace) or dār al-ʿadl (house
of justice), is defined in three different ways by classical Muslim jurists. First, according to
the majority of Muslim jurists representing the four schools of Sunni Islamic law, which in-
cludes Shaybani (d. 189/805) and Abu Yusuf (d. 182/798) from the Hanafi, Maliki, Shafiʿi,
and Hanbali schools, dār al-Islām is defined as the territory where Islamic law is applied, ․zuhūr
al-Islām or ․zuhūr ah․kām al-Islām (literally emergence of Islam or emergence of Islamic law).
These jurists differed tremendously, however, on the limits of the application of Islamic law.
While some maintained that it is limited to the territory where Islam is freely proclaimed and
practised, others were only content with the implementation of even a single Islamic ritual in
a territory to be classed as dār al-Islām. It appears that, for those who were content with the
partial application of Islamic law, the lack of persecution for the practice of Islam was suffice
for a territory to be considered as a part of the dār al-Islām. That is because one of the exam-
ples classical Muslim jurists gave here is that if Muslims are able to perform prayers freely,
then a territory is considered a dār al-Islām. However, in the post-colonial era and following
the westernization of the Islamic legal systems in most of the Muslim world, some radical
Islamist groups argued that the current Muslim states are not a dār al-Islām because they do
apply wholly Islamic law, quoting the Qurʾanic text 5:44: ‘And those who do not rule by
what God has revealed, such are the unbelievers’. Hence, Muhammad ʿAbd al-Salam Faraj
(d. 1401/1981), executed in 1982 for his role in the assassination of President Sadat of Egypt,
claimed that what he called the neglected duty, i.e., jihad, must be waged against what he
called the ‘near enemy’, i.e., the Muslim rulers until they rule by Islamic law. This new devel-
opment to the concept of jihad from a war against non-Muslims to an internal war to enforce
the application of Islamic law reinforces the thesis that the ․zuhūr al-Islām (the establishment
of the religion of Islam and its laws) is a core justification of jihad regardless of the diverse
understandings of what constitutes the acceptable limits of the ․zuhūr al-Islām. It should be
mentioned here that a dār al-Islām is not necessarily exclusively inhabited by Muslims since
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Ahmed Al-Dawoody
dhimmis (non-Muslim permanent citizens of the Islamic state) have been always a part of the
dār al-Islām and, according to classical Islamic law, they have the right to apply certain aspects
of their respective legal systems.
Second, according to a minority group, including Shawkani (d. 1255/1834), a territory
is a dār al-Islām if it is ruled by Muslims. Obviously what lies behind this stipulation is that
since authority is in the hands of the Muslims, Islamic law is applied and Muslims can reside
and apply their religion freely. However, will a territory be called a dār al-Islām if it is ruled
by Muslims but Islam cannot be practised and its Muslim population are persecuted because
of their religion? The answer would be in the negative. Similarly, the more interesting ques-
tion here is that, if a territory that is ruled by non-Muslims, but Muslims enjoy the freedom
to practise their religion, would this territory be called a dār al-Islām? The rational answer,
as can also be deduced from the third position below, is that such a territory would be a dār
al-Islām, though sovereignty is in the hands of non-Muslims.
Third, according to Abu Hanifa (d. 150/767), dār al-Islām is a territory in which Muslims
and dhimmis are secure and can practise their religion with no persecution.11 In a much clearer
way than the preceding two positions, Abu Hanifa’s words indicate that what determines
whether a territory is a dār al-Islām or not is the lack of enmity against both Muslims and
dhimmis, permanent non-Muslim citizens of the Islamic state. If the element of security exists
in any territory, then it deserves to be categorized also as a dār al-salām (house of peace) or dār
al-ʿadl (house of justice). In this context, it is worth adding here that classical Muslim jurists
stated that if Muslims are unable to perform their religion without persecution, then follow-
ing the Prophet’s and the Companions’ practice, hijra (flight) to the dār al-Islām is obligatory.
Sheikh al-Azhar Mahmud Shaltut (d. 1383/1963) argues that the Qurʾanic command 5:79 for
Muslims to flee in case of persecution because of their religion from any territories – whether
ruled by Muslims or non-Muslims – still applies in the contemporary world.12 Although
these three positions are expressed in different ways, they basically reinforce the same idea:
dār al-Islām is not a territory that is identified by geographical boundaries or the religious af-
filiation of the rulers or inhabitants. It is a theoretical division that emerged in a period where
hostility and the lack of religious freedom signified the pattern of international relation at
the time. So, in addition to the intrinsic right of self-defense against aggression against one’s
territories, by this division of the world, classical Muslim jurists were identifying the state
or the home that is peaceful to the religion of Islam. Additionally, as can be seen from the
discussion below, this division is not about demarcating territories that Muslims are to annex
to the Islamic state or non-Muslims that are to be fought until they are converted by force to
Islam, but it is a division that has legal ramifications regarding, for example, the issue of the
jurisdiction of Islamic law.
Based on the above definitions, or parameters, of what constitutes a dār al-Islām, a dār al-h․arb
(house of war), also called dār al-kufr (house of unbelief ) or dār al-jawr (house of injustice), is
the territories where the above parameters are lacking. But this does not necessarily mean that
the Islamic state has to go to war against such territories partly because, even with the lack of
some of these parameters, a territory can still be categorized as a dār al-s․ulh ․ (house of peace) if
an armistice or a peace agreement is concluded. It is worth recalling here that this division was
rather a description of the state of reality at that time when a state of hostility was the norm in
international relations. It goes without saying that if a country invades the Islamic territories, it
becomes a dār al-h ․arb, according to the majority of jurists, and in this case jihad becomes an obli-
gation on every capable Muslim. But in any case, it is of paramount importance to note here that
the civilian inhabitants of a dār al-h․arb cannot be targeted during the hostilities. This is because
the muh ․āribūn (enemy combatants) only can be a legitimate target during military operations
306
within the Islamic restraints on the use of force briefly touched upon above. Furthermore, if
enemy combatants ask in any form, whether verbally or via gesture, for amān (literally safety
and protection, while as a legal term it means quarter and safe conduct), they must be granted it.
However, this distinction between the civilian population of the dār al-h ․arb and the muh ․āribūn
has been grossly overlooked by terrorist groups who justified their terrorist attacks in non-
Muslim countries against innocent civilians by wrongly claiming that the lives and property of
the inhabitants of the dār al-h ․arb are not inviolable. Furthermore, as pointed out above, claiming
that the current Islamic states that do not solely apply Islamic law are dār al-h
․arb/dār al-kufr, hence
they claim it is permitted to commit terrorist attacks against government targets to enforce the
application of Islamic law. Also non-violent Islamist politicians and thinkers claim that their
primary objective is enforcing the application of the Shariʿah in their countries.
As for the third division, dār al-s․ulh․ (house of peace), also called dār al-ʿahd (house of
covenant) or dār al-muwādaʿa (house of reconciliation), refers to the sovereign of semiautono-
mous territories with which the Islamic state concluded a peace agreement, an armistice, or
a pact of non-aggression. The Islamic state has no control over such territories and therefore
does not enforce the implementation and application of Islamic law,13 but such agreements
indicate the lack of hostility towards its Muslim community. Notwithstanding the details of
such peace arrangements, the mere fact that Islamic law legitimized, and the Islamic state
practised, peace agreements with non-Muslim territories prove that the aim of jihad is not
the universalization of Islam by force since the inhabitants of the dār al-s․ulh ․ maintain their
religions. It also shows that the claim made by Majid Khadduri (d. 1428/2007) that one of
the aims of jihad is ‘the establishment of an imperial world state’,14 or what is described as the
universalization of Islamic rule, is inaccurate, as argued by Wahbah al-Zuhayli, since what
Islam aims at is protecting the enforcement of Islamic Shariʿah.15 Furthermore, it is only a
minority among classical Muslim jurists including al-Shafiʿi that accepted this third division,
because according to the majority of the jurists, as shown above, irrespective of the limits of
its application or practice, if Islam can be freely practised in any territory it becomes a part
of the dār al-Islām and, according to Abu Hanifa, the mere fact that Muslims and dhimmis are
secure in a certain territory makes it a dār al-Islām.
In the light of this brief discussion of the figurative territorial divisions of the classical
Muslim jurists’ world, it becomes clear that what determines the above three categorizations
of the world is the freedom to practise Islam and its laws. As a corollary of that, in addition
to aggression and occupation of the Islamic territories, a dār al-h․arb is any territory in which
the practice or the application of Islam is persecuted/prohibited. This explains the agreement
among Muslim scholars on preventing the proselytization of Islam as a peculiar justification
for going to war according to the Islamic tradition of war.16 Moreover, the ten-year encyclo-
pedic research project on international relations in Islam sponsored by the US-based Interna-
tional Institute of Islamic Thought concludes that what determines whether a state of peace
or war exists with non-Muslims is their position towards the preaching of Islam.17 But the
sharp disagreement between those who are content with the mere safety of Muslims to reside
and proclaim their faith in a certain territory to be categorized as a dār al-Islām and those
who claim that the application of non-Shariʿah laws in any territory makes it a dār al-kufr/dār
al-h․arb could either make the whole world today either a dār al-Islām, according to the former,
or a dār al-kufr/dār al-h․arb, according to the latter. The significance of the place of Islam in this
classical formula of international relations is understood in light of the hostility that charac-
terized the pattern of international relations in which this territorial division emerged. But
no less importantly, as shown below, this territorial division theory has legal consequences
regarding the sovereignty and the jurisdiction of Islamic law.
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Ahmed Al-Dawoody
3 Sovereignty and jurisdiction

In his controversial The Impossible State: Islam, Politics, and Modernity’s Moral Predicament, Wael
B. Hallaq writes:
Generally, in whichever territory the Sharı̄ʿa is applied as the paradigmatic law, the territory
is deemed an Islamic domain, Dār al-Islām. Wherever the Sharı̄ʿa does not operate, or in
whichever it is relegated to a secondary, inferior status, the territory is deemed Dār al-H
․ arb,
a territory that is potentially subject to conversion by peace or by war. The ultimate pur-
pose of this conversion is to bring non-Muslims to accept Islam’s law, which is primarily a set
of moral principles sustained by legal concepts. Thus, the boundaries and defining concept
of the Community is the Sharı̄ʿa. Islam, unless eviscerated, stands or falls on the Sharı̄ʿa.18
These words reinforce the thesis of this chapter about the place of the Shariʿah in determining
the Islamic ‘domain’, to use temporarily Hallaq’s term, though the nuances of the deliberations
of the classical Muslim jurists as well as the third division are ignored here. That is because,
as shown above, the twofold divisions adopted by the majority of the jurists or the threefold
divisions adopted by al-Shafiʿi are aimed at ensuring the application of Shariʿah by the Muslim
community. The element of safety of Muslims as maintained by Abu Hanifa in non-Muslim
territories is suffice for a territory to be a dār al-Islām and permitting the non-Muslim citizens
of the Islamic state to be ruled by some of their religious laws as well as the jurisdiction the-
ory treated below refute the claim that the territories ruled by non-Muslims where obviously
Shariʿah ‘does not operate, or in whichever it is relegated to a secondary, inferior status’, are to
be forced to accept Islamic law ‘by war’. However, since Islam is a universal religion, Muslims
are required to preach it to the rest of the world (Qurʾan 16:125).
Agreeing with Hallaq, Khadduri who claims that one of the aims of jihad is ‘the establish-
ment of an imperial world state’, claims that ‘In theory dar al-Islam was always at war with dar
al-harb. The Muslims were under legal obligation to reduce the latter to Muslim rule in order
to achieve Islam’s ultimate objective, namely, the enforcement of God’s law (the Shariʿa) over
the entire world’.19 In his attempt to prove that ‘There never was an Islamic state’,20 Hallaq
argues that since sovereignty lies alone in the hands of God and that God is the sole legislator,
then Islam aims at ‘building a moral-legal empire’ based on the divine moral will.21 Leaving
aside the claim that there can never be an Islamic state in the modern sense of the word be-
cause it is not the focus of this chapter, the principle of sovereignty in Islamic constitutional
theory is of paramount importance and directly linked to the modern discussion of jihad,
particularly since the middle of the 20th century. In fact, Hallaq’s conception of the principle
of sovereignty is somewhat a reiteration of the conception of jihad developed by Abu al-Aʿla
al-Mawdudi (d. 1399/1979) and popularized by Sayyid Qutb (d. 1386/1966). According to
the words of Qutb, since al-h ․ākimiyya (sovereignty) is only for God and therefore His Shariʿah
alone must reign over the whole of humanity and that all manmade laws must be abolished,
then Islam constitutes a permanent comprehensive revolution against all forms of regimes
and governments in order to liberate humanity so that sovereignty returns solely for God.
Quoting Qurʾanic texts 3:64, 12:40 and 43:84, and reminiscent of what Hallaq described as ‘a
moral-legal empire’, Qutb maintains that Islam wants to destroy man’s kingdom to establish
God’s kingdom on earth. Although apparently self-contradictory and fundamentally utopian,
Qutb recognizes that Islam does not accept forced conversion and at the same time he advo-
cates that jihad is not only defensive. Offensive jihad is to be waged until oppressive systems
and regimes are removed and then people are to choose their creed freely, Qutb argues.22
308
The above agreement between Mawdudi-Qutb and Hallaq on resorting to offensive war
to ‘bring non-Muslims to accept Islam’s law’ is a revealing development to the doctrine of
jihad. Most likely, Faraj, who coined the formula the ‘near enemy’ versus the ‘far enemy’,
was influenced by Mawdudi-Qutb’s interpretation of jihad. Hence, it is understandable that
Faraj claimed that jihad must be waged a fortiori against the ‘near enemy’, i.e. the Islamic
government until Islamic law is wholly applied. In the words of Sohail Hashmi, ‘The focus
of [contemporary] fundamentalist argument on war is thus inward, aimed at transforming
allegedly hypocritical Muslim societies into true Islamic communities, led by true Muslim
leaders’.23 This explains the rise of radical violent Islamist groups who have taken up arms
against the regimes in many Muslim states over the last few decades in an attempt to force the
Islamization of their societies. In order to achieve this, what Faraj calls ‘the forgotten duty’,
i.e. jihad in the sense of armed struggle, must be revived to re-establish the Islamic govern-
ment system.24 But resorting to offensive war to force the application of Shariʿah law against
what Faraj calls the ‘far enemy’, the non-Muslim world, appears out of the question in the
literature of even the most terrorist Muslim groups. That is due to, practically speaking,
the lack of military force to confront professional armies of the so-called ‘far enemy’. Hence,
the re-establishment of the caliphate would be a necessary step to unify the might of the
Muslims and, according to the claims made by the Islamic State in Iraq and Syria (ISIS),
Muslims ‘will own the world, and the east and the west will submit to’ them if they re-
establish the caliphate and renounce ‘democracy, secularism, nationalism, as well as all other
garbage and ideas from the west’.25
These recent developments in the doctrine of jihad indicate a drastic and historic change
in several respects. First and foremost, apart from invoking jihad by the legitimate authority
and/or in case of invasion of the Muslim territory by foreign countries, the jihad in recent
decades is mainly undertaken by non-state actors against their own Muslim government.
The lack of genuine democratic experiences and the failure to provide services in many of
the failed and failing states in the Muslim world lead to radicalization and resort to terror-
ism. Thus, lamenting this miserable state of most of the Muslim countries, particularly when
compared with the past glory of the Islamic civilization, thousands of young Muslims born
and/or living in the West have joined terrorist Muslim groups, including, most notably, ISIS.
Many acts of terrorism are perpetrated under the guise of so-called jihad by non-state actors
who, because of being criminalized and their clandestine nature, resort to sporadic terrorist
attacks or guerrilla warfare. In other words, calling such use of force jihad is a misnomer,
particularly in light of the complete disregard for the Islamic regulations on the use of force.
But the radicalization of young Western Muslims and the call for the adaptation of Islamic
laws in Western legal systems necessitate shedding some light on the theory of the jurisdic-
tion of Islamic law.
As argued above, the territorial division devised by the classical Muslims jurists aimed
mainly at demarcating the territories which are peaceful/hostile to the practice and applica-
tion of Islam. Therefore one can safely say that these divisions have fallen into abeyance – as
generally believed by Muslims – following the establishment of the United Nations and the
world’s agreement on the prohibition of offensive war. As a practical consequence of this
division, the issue of the jurisdiction of Islamic law came to the forefront of the discussion.
Before delving into the issue of the jurisdiction of Islamic law, it should be mentioned here
that classical Muslim jurists divided the individuals of their world into four categories:
1) Muslim, whether living in dār al-Islām or in any other part of the world;
2) dhimmi (a non-Muslim permanent citizen of the dār al-Islām);
309
Ahmed Al-Dawoody
3) mustaʾmin (a non-Muslim temporary resident/visitor of the dār al-Islām); and

4) ․harbı̄ (a belligerent enemy).
It is interesting to find that classical Muslim jurists of the four Sunni schools of Islamic law
developed three theories regarding the jurisdiction of Islamic law. According to the first
theory, developed by Abu Hanifa, the eponymous founder of the Hanafi school of law,
Islamic law has jurisdiction inside the dār al-Islām over only Muslims and dhimmis. Hence,
Abu Hanifa adopts the principle of the territorial jurisdiction of Islamic law, but at the same
time he also does not apply Islamic law to non-Muslim, non-permanent citizens of the Is-
lamic state, i.e. the mustaʾmin and the ․harbı̄, even for acts undertaken by them inside the dār
al-Islām. Sovereignty over territory and its permanent citizens are both pre-requisites for
the jurisdiction of Islamic law according to Abu Hanifa. Thus, Muslims are not punished
for crimes committed outside the dār al-Islām. More interestingly, non-Muslim permanent
citizens are allowed, for example, to eat pigs or drink wine because these are permissible in
their religions, though prohibited in Islam. Maintaining the territorial jurisdiction theory
championed by his teacher Abu Hanifa, judge Abu Yusuf (d. 798) developed the second
jurisdictional theory arguing that Islamic law should be applied to non-Muslim temporary
residents of the Islamic state. As for the third jurisdictional theory developed by the majority
of the Sunni Muslim jurists, in addition to the jurisdiction over any acts committed inside
the dār al-Islām, Islamic law has universal jurisdiction over Muslims and dhimmis irrespective
of whether they live in the dār al-Islām or not.26
Therefore, the claim raised above by Hallaq about forcing non-Muslims to accept Islam’s
law is not true because, for example, according to Abu Hanifa’s jurisdictional theory, first,
Islamic law does not have jurisdiction over non-Muslim temporary residents/visitors of the
dār al-Islām; second, Islamic law is not strictly applied to non-Muslim permanent citizens and
as a result they are allowed by Abu Hanifa to drink wine, for example, which is a major sin
and a punishable ․hadd crime for the Muslims; and third, Islamic law does not have universal
jurisdiction over Muslims outside of the territories of the dār al-Islām. Moreover, this succinct
presentation of the three Islamic jurisdictional theories and the discussions and deliberations
of the classical Muslim jurists prove that the main concern of their discussions of this issue is
a practical matter, mainly, developing the rules regulating the actions of both Muslims and
non-Muslims within these specific three jurisdictional theories.
Conclusion
There is no doubt that the current literature on the subject of jihad is full of sweeping over-
simplifications of such complex and purely contextual legal tradition. The above discussions
of the four issues of the justifications for jihad, the territorial division of the world, sover-
eignty, and jurisdiction of Islamic law are key to understanding the nature of the doctrine
of jihad. In fact, these four issues are inextricably linked. Apart from defensive jihad against
the invasion of Muslim territories, the main justification for the doctrine of jihad is the per-
secution and oppression of Muslims because of their practice and application of Islam and
its law. Hence, classical Muslim jurists devised their two- or threefold figurative territorial
divisions of the world according to this criterion. As a practical consequence of these divi-
sions, classical Muslim jurists discussed, deliberated and developed the rulings regulating the
interaction between the dār al-Islām with the dār al-kufr/dār al-h
․arb and dār al-s․ulh
․ in times of
peace and war. These rules include, for example, the application of the Islamic penal codes
over the crimes committed inside the dār al-Islām or committed by its citizens outside of its
310
territories, international trade, and concluding covenants with dār al-kufr/dār al-h ․arb and dār
al-s․ulh․. This purely pre-modern contextual structure upon which the doctrine of jihad was
based and developed has collapsed following, most prominently, the establishment of the
UN. By signing the UN charter, member states agree to abide by the prohibition on the
resort to offensive war and to respect and observe human rights and fundamental freedoms.
As a consequence, the dār al-kufr/dār al-h․arb ceased to exist and the entire world, even ac-
cording to the classical territorial division, became either a dār al-Islām, according to the
majority of classical Muslim jurists, or dār al-s․ulh․, according to al-Shafiʿi. Disregarding these
changes in the paradigms of international relations between the classical Muslim jurists and
the post-UN world is to read jihad out of context and to underestimate the legal heritage of
one of the world’s greatest, most complex, and richest legal traditions, pure and simple.
Fortunately, the classical Islamic legal literature has left an immensely detailed and hu-
mane body of regulations on the use of force, in particular, that can have the greatest impact
on preventing non-international armed conflicts and humanizing both international and
non-international armed conflicts. Since most cases of jihad following the independence
of the Muslim countries were invoked by non-state actors, including radical and terrorist
groups mainly in non-international armed conflicts, Islamic rules on the use of force have
been misinterpreted and selectively abused by terrorist groups such al-Qaeda and ISIS. This
means that the since jihad as the Islamic just war theory will be utilized by Muslims, the
question of what constitutes jihad and, more importantly and specifically, the Islamic rules
on the use of force in contemporary war situations, which differ considerably from that of the
primitive war situations of the classical Muslim jurists, will continue to be debated by Islamic
scholars and the just war theorists.
Notes
1 For the fighting contexts see Qurʾan 3:142; 4:95 (3 times); 9:16, 24, 41, 44, 81, 85, 88; 61:11. For the
non-fighting context see Qurʾan 2:218; 5:35, 53–4; 6:109; 8:72, 74, 75; 9:19–20, 73, 79; 16:110; 22:78
(2 times); 24:53; 25:52 (2 times); 29:6 (2 times), 8, 69; 31:15; 35:42; 47:31; 49:15; 60:1; 66:9.
2 Qurʾan 22:39–40. All translations of the Qurʾanic texts are mine.
3 Qurʾan 4:75–6.
4 See, for example, Qurʾan 2:191–3, 217; 8:39.
5 Qurʾan 2:190, 193; 4:75; 22:39–40.
6 Qurʾan 2:106.
7 Qurʾan 16:106.
8 See, for example, M. Cherif Bassiouni, ed., A Manual on International Humanitarian Law and Arms
Control Agreements (New York: Transnational Publishers, 2000), 9.
9 Qurʾan 2:205. For further exploration, see Ahmed Al-Dawoody, The Islamic Law of War: Justifi-
cations and Regulations, Palgrave Series in Islamic Theology, Law, and History, vol. 2 (New York:
Palgrave Macmillan, 2011), 126–9.
10 Ibid., 128.
11 Wahbah al-Zuhayli, Athar al-Harb fi al-Islam: Dirasa Muqarana, 3rd edn (Damascus: Dar al-Fikr,
1998), 172.
12 See Mahmud Shaltut, Al-Fatawa: Dirasa li-Mushkilat al-Muslim al-Muʿasir fi Hayatih al-Yawmiyya al-
ʿAmma, 19th edn (Cairo: Dar al-Shuruq, 2009), 375.
13 See ibid., 175.
14 Majid Khadduri, War and Peace in the Law of Islam (Baltimore, MD: Johns Hopkins University Press,
1955), 51.
15 Al-Zuhayli, Athar al-Harb fi al-Islam, 181.
16 See, for example, ʿAbd al-Halim Mahmud, ‘Al-Jihad’, Kitab al-Muʾtamar al-Rabiʿ li-Majmaʿ al-
Buhuth al-Islamiyya (Cairo: Majmaʿ al-Buhuth al-Islamiyya, 1968), 36; Ismaʿil R. al-Faruqi, ‘Islam
and Other Faiths: The World’s Need for Humane Universalism’, in The Challenge of Islam, ed.
311
Ahmed Al-Dawoody
Altaf Gauhar (London: Islamic Council of Europe, 1978), 100; Tawfiq Wahba, Al-Harb fi al-I slam wa-fi
al-Mujtamaʿ al-Dawli al-Muʿasir, Kutub Islamiyya, Issue 145 (Cairo: Supreme Council for Islamic
Affairs, 1973), 21ff.
17 See ʿAbd al-ʿAziz Saqr, Al-ʿAlaqat al-Dawliyya fi al-Islam Waqt al-Harb: Dirasa lil-Qawaʿid al-Munazzima
li-Sayr al-Qital, Mashruʿ al-ʿAlaqat al-Dawliyya fi al-Islam 6 (Cairo: Al-Maʿhad al-ʿAlami li-l-Fikr
al-Islami, 1996), 7–29.
18 Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York:
Columbia University Press, 2014), 49.
19 Majid Khadduri, ‘Islam and the Modern Law of Nations’, The American Journal of International Law
50(2) (April 1956): 359.
20 Hallaq, The Impossible State, 48.
21 Ibid., 50ff.
22 See Sayyid Qutb, Fi Zilal al-Qurʾan, vol. 3 (Beirut: Dar al-Shuruq, 1982), 1432–47.
23 Sohail H. Hashmi, ‘Islam, Sunni’, in Encyclopedia of Religion and War, ed. Gabriel Palmer-Fernandez
(New York: Routledge, 2004), 221.
24 See Muhammad ʿAbd al-Salam Faraj, ‘Translation of Muhammad ʿAbd al-Salam Faraj’s Text Enti-
tled Al-Farida Al-Ghaʾiba’, in J. J. G. Jansen, The Neglected Duty: The Creed of Sadat’s Assassins and
Islamic Resurgence in the Middle East (New York: Macmillan, 1986), 159–234.
25 https://ia902505.us.archive.org/28/items/poa_25984/EN.pdf (accessed 29 August 2015).
26 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, paperback edn (Cambridge: Cambridge
University Press, 2006), 177.

Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press,
2006).
Bassiouni, M. Cherif (ed.). A Manual on International Humanitarian Law and Arms Control Agreements
(New York: Transnational Publishers, 2000).
Dawoody, Ahmed al-. The Islamic Law of War: Justifications and Regulations. Palgrave Series in Islamic
Theology, Law, and History (New York, Palgrave Macmillan, 2011).
Faraj, Muhammad ʿAbd al-Salam. ‘Translation of Muh․ ammad ʿAbd al-Salām Faraj’s Text Entitled
A l-Farı̄d․ ah Al-Ghāʼibah’. In The Neglected Duty: The Creed of Sadat’s Assassins and Islamic Resurgence
in the Middle East, trans. J. J. G. Jansen (New York: Macmillan, 1986), 159–234.
Faruqi, Ismaʿil R. al-. ‘Islam and Other Faiths: The World’s Need for Humane Universalism’. In The
Challenge of Islam, ed. Altaf Gauhar (London: Islamic Council of Europe, 1978), 196–218.
Hallaq, Wael B. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York:
Hashmi, Sohail H. ‘Islam, Sunni’. In Encyclopedia of Religion and War, ed. Gabriel Palmer-Fernandez
(New York: Routledge, 2004), 217–21.
Khadduri, Majid. War and Peace in the Law of Islam (Baltimore, MD: Johns Hopkins University Press,
1955).
Khadduri, Majid. ‘Islam and the Modern Law of Nations’. The American Journal of International Law
50(2) (April 1956): 358–72.
Mahmud, ʿAbd al-Halim. ‘Al-Jihad’. Kitab al-Muʾtamar al-Rabiʿ li-Majmaʿ al-Buhuth al-Islamiyya (Cairo:
Majmaʿ al-Buhuth al-Islamiyya, 1968).
Qutb, Sayyid. Fi Zilal al-Qurʾan (Beirut: Dar al-Shuruq, 1982).
Saqr, ʿAbd al-ʿAziz. Al-ʿAlaqat al-Dawliyya fi al-Islam Waqt al-Harb: Dirasa li-l-Qawaʿid al-Munazzima
li-Sayr al-Qital. Mashruʿ al-ʿAlaqat al-Dawliyya fi al-Islam 6 (Cairo: Al-Maʿhad al-ʿAlami li-l-Fikr
al-Islami, 1996).
Wahba, Tawfiq. Al-Harb fi al-Islam wa-fi al-Mujtamaʿ al-Dawli al-Muʿasir. Kutub Islamiyya, Issue 145
(Cairo: Supreme Council for Islamic Affairs, 1973).
Zuhayli, Wahbah al-. Athar al-Harb fi al-Islam: Dirasa Muqarana, 3rd edn (Damascus: Dar al-Fikr, 1998).
312
18
Fiqh al-aqalliyyāt and Muslim
minorities in the West
Said Fares Hassan
1 New minority developed

Today, one third of the world’s Muslim population lives in countries where they constitute
a minority. This situation in itself is not new. Muslims have experienced minority life since
the early years of Islam. The first wave of Muslim immigration to Abyssinia (614–615 CE) is
a case in point. Due to political and territorial struggle, Muslims also had minority experi-
ences in places like Spain, Sicily, the Balkans, China and India. This long history of minority
experience did not result – on the part of early and pre-modern jurists – in the formulation
of a concrete jurisprudential position towards minority Muslim communities.1 Instead, ear-
lier jurists tended to address questions about Muslims living outside the world of Islam as
individual cases. They did not systematically or thematically group these questions or work
out a methodology to deal with them. Jurists did not feel the need, in their writings and
debates, to address the notion of developing constructive Muslim minority life. This does
not mean that their debates were superficial or insignificant. Rather they were complex and
diverse. Jurists of various schools discussed various ‘minority’ questions and projected dif-
ferent positions based on their geopolitical setting and juridical orientations. They debated
the rulings pertaining to immigration, definition of dārs, i.e. land (both dār al-Islām and dār
al-h․arb), the boundaries of Islamic jurisdiction, the limitations of manifesting one’s religion
and the role of amān, i.e. contracts that guarantee the safety of the individuals, in defining
Muslims’ relation to the non-Muslim territory. Khaled Abou El Fadl argues that there are
three main questions that the juristic debate pertaining to Muslims residing in non-Muslim
polities focused upon: Were Muslims permitted to reside in a non-Muslim territory? Were
Muslim minorities part of the Muslim Umma or did they constitute a special class of Mus-
lims? What were the obligations of Muslim minorities towards Islamic Law, and towards
their host states? These questions are discussed within the framework of four key issues:
1) residence in a non-Muslim land; 2) ability to practise Islam, especially rituals; 3) juris-
diction; and 4) interaction with non-Muslims. Definitely, these three questions have driven
the debate with all its complexities and other sub-issues throughout Islamic legal history up
until the present time.
Muslim immigration in the second half of the 20th century to the Western world pre-
sented a new phenomenon in the history of Muslim minority communities. During this time,
313
Said Fares Hassan
Muslims immigrated in unprecedented numbers to Western Europe and North A merica.

Although this immigration was of different modes, involving different types of immigrants
and representing different forms of relationships with host societies, in general it represented
a new reality where Muslims did not migrate from non-Muslim polities to Muslim lands,
but instead there was a reverse hijra where Muslims immigrated from the land of Islam to
non-Muslim territories.
These immigrant Muslims (between the 1950s and the late 1970s) had a mentality of tem-
poral settlement and isolation, and were often waiting to achieve a specific task – to improve
their economic situation, escape political persecution, receive an education, etc. – before
returning to their home country. They rationalized their isolation by referring to traditional
legal doctrines that view with suspicion any interaction with non-Muslims in non-Muslim
lands. These doctrines caused immigrants to reject their place of residence due to the belief
that they would be subject to non-Muslim rule, add to the strength of a non-Muslim state, and
betray the Umma. The assumption was that the best they could do until they rectified their sit-
uation was to work to keep their Islamic identity intact and their community protected from
assimilation into the non-Muslim culture. This was the function of early Islamic institutions
such as mosques and centres that were built in the West in the 1970s and the 1980s.
Within a few decades, however, Muslim immigrants realized that the new land had be-
come their new home, and they were the ones who needed to rethink their tradition in light
of the changing realities. The attitudes of early immigrants changed, and a solid Muslim
community started to carve its way into the Western public sphere. Gradually, Muslim im-
migrants developed concerns about their Islamic identity. They faced the challenge of how
to make their lives ‘Islamic’. Though the meaning and scope of the word ‘Islamic’ varies from
one group to another, the underlying aspiration of Muslim immigrants – living according to
the teachings of Islam – remains essentially the same. For some, the challenge of constructing
an ‘Islamic life’ presented a significant dilemma. On the one hand, submission to their beliefs
required them to abide by certain Islamic law rulings, which many Muslims believe to be based
on divine texts and/or prophetic commands. At the same time, these immigrants sought to
adapt to their new place and adhere to its positive laws, which might contradict some norms
of their belief system.
It is noted that Islamic law is blended with the culture of its people. With time, it becomes
hard to distinguish between the two, i.e. Islam and culture, until one encounters an opposing
culture. At this moment the question of the Islamicity of certain acts is raised and strongly de-
bated. In order to resolve such dilemmas vis-à-vis Islam, 20th-century Muslims immigrants
often resorted to the advice of imams or muftis. They sought answers to questions about almost
every detail of their lives. They questioned their immigration and their acquisition of new
citizenship. They asked about food, drink and clothing, and they inquired about work, social
interaction and mingling with their non-Muslim fellow citizens. A new genre of fiqh called
‘fiqh al-aqalliyyāt’, i.e. fiqh of minorities, started to pave its way to scholarship as a new attempt
to revisit immigrants’ questions and reconsider them in light of the new space and time.
The experience of Muslim minorities of the second half of the 20th century was also
different from the earlier presence of Muslims in non-Muslim polities due to a number
of significant shifts in the structure of both the host society and the Muslim communities
themselves. With the steady increase of Muslim immigrant numbers and the visibility of their
presence, the West’s old historical conflict with Islam, informed by orientalists’ positions and
essentializing discourses, was carried into the modern time and revealed various prejudices,
the most important of which is that Islam is inherently anti-modern and that its adherents
cannot, therefore, be integrated into the modern West.2 Discrimination and biased media
314
Muslim minorities in the West
coverage played a role in asserting and disseminating a hostile attitude toward Muslims. Such
hostility towards Islam, for some Muslims, resulted in an intensification of their personal
attachments to Islam and their affirmation of their Islamic identity.
Conscious affirmation of one’s Islamic identity in response to discrimination and vic-
timization was empowered by an external travelling factor, i.e. the spread of the influence
of Islamic Awakening in the Muslim world. Two competitive forces of the Awakening, the
Muslim Brothers and the Wahhabi-oriented organizations, exerted huge efforts to reach
Muslim minorities. A significant number of Muslim Brothers immigrated to the West to
escape political persecution. They brought with them their ideologies and established insti-
tutions and organized work among the ranks of the Muslim minorities. Wahhabi-oriented
organizations dedicated huge funds for Daʿwa purposes in the West. They funded the estab-
lishment of many Islamic centres, donated large numbers of Islamic books and materials in
foreign languages and provided scholarships to European and American Muslims to study
Islam in Mecca or Medina. Both forces made an impact in the early formation of Muslim
minority identity in the West. Also in the late 1980s, Muslim communities witnessed the
rise of the second and third generations of young Muslims who knew no home other than
the Western world. These young Muslims had aspirations and the power to persuade parents
dreaming of returning to their home country to stay permanently in the non-Muslim land.
Next to these internal changes in the structure of Muslim minority communities, the secular
liberal western democracy provided a reasonable space for Muslims to express themselves
both as Muslims and as citizens.
Given this process of identity construction, threat of Islamophobia, community aware-
ness, the rise of the second and third generations, and the liberal western democratic environ-
ment, the traditional answer for minority questions which would basically require immigration
to the land of Islam was questioned. Moreover, many Muslim scholars argued for the need of an
intellectual juristic renewal and a new methodology to deal with Muslim minority questions.
2 New fiqh created

At a conference organized by the Union des Organisations Islamiques de France (UOIF) in
1992, a number of fiqh experts came together to discuss the question of the legality of Mus-
lims’ residence in the west. It is important to note that the real issue for these experts was not
whether fiqh would permit Muslims to remain in Europe but how fiqh should be related to
the Muslim minority normative obligations in Europe as Muslims and how to relate this fiqh
to contextual reality, rather than to textual historical assumptions. Their meetings, though,
resulted in a number of positive resolutions, but more importantly a need to develop an insti-
tution to cater for legal needs of Muslim minorities was felt. In due time this resulted in the
establishment of the European Council for Fatwa and Research (ECFR) in London in 1997
(a few years later, the ECFR was relocated to Dublin, Ireland).
During the 1990s, as a result of the ongoing transformation in the Muslim immigrant
communities in the West, an enormous body of ‘religious’ questions were directed to imams,
muftis and Muslim leaders. Some imams and Muslim leaders compiled their fatwas for Muslim
minorities for publication. Dr Darsh’s Questions and Answers about Islam (1997),3 for exam-
ple, contains a large selection of his biweekly column ‘Questions and Answers about Islam’
which appeared in Q-News International, a Muslim weekly newspaper published in English.
By the advent of the 21st century, a number of similar compilations and treatises were pub-
lished.4 These various publications paved the way for the emergence of a new jurisprudential
category that extended beyond fiqh or fatwa cases. Rather it seeks to develop a new genre of
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jurisprudence, fiqh al-aqalliyyāt. This fiqh aims at providing a general framework of objectives,
characteristics and fundamentals for a minority-based fiqh, which considers the distinctive
traits of each minority and their position in the new states. In other words, this fiqh in-
tends to change the rulings pertaining to Muslims living in minority situations from rukhas
(licence)-labelled rulings to widely acknowledged established rulings.
As early as 2000, the expression ‘fiqh al-aqalliyyāt’ had come to be an established term, but
nobody clearly knows who was the first to coin the term or introduce it. Some claim that
al-Qaradawi did so with his early book Al-Halal wa-l-Haram (1960). Others argue that Taha Jabir
al-ʿAlawani first introduced it with his papers in various conferences and periodicals, particu-
larly those presented around 1994. A third hypothesis argues that Dr ʿAbd al-Majid al-Najjar or
Dr Muhammad Fat-hy Othman was the first. In any case, the publications of al-Qaradawi and
al-ʿAlawani led to the term’s acceptance in many scientific and public circles. Their writings
shifted the debate from the mere issuing and publishing of fatwas to the creation of a framework
on how to deal with ‘religious’ (here, an ambivalent term that has ritual, social, economic and
political dimensions) questions of a Muslim minority. In other words, the process of establishing
a new category of fiqh called fiqh al-aqalliyyāt started. In due time, the title ‘fiqh al-aqalliyyāt’ be-
come institutionalized through its acknowledgement by Muslim local and international juristic
councils such as the European Council for Fatwa and Research, the American Muslim Jurists
Association, the Islamic Society of North America, the Islamic Fiqh Academy, al-Azhar, etc.
From reading the available literature published by the proponents of this fiqh, however,
no clear definition of the concept of fiqh al-aqalliyyāt emerges. In his Fi Fiqh al-Aqalliyyāt
al-Muslima, al-Qaradawi does not provide a legal definition, focusing instead on the fiqh’s ob-
jectives, characteristics and sources. One reason for this disinterest in a legal definition is that
al-Qaradawi considers fiqh al-aqalliyyāt a part of the general fiqh (al-fiqh al-ʿāmm), the only dif-
ference being that this new category of fiqh considers the current political and social changes
for which the old fiqh did not account. He argues that if there exists a fiqh of zakat and a fiqh
of politics, then there exists room for a fiqh for aqalliyyāt.5 His version of a fiqh for minorities
calls for reading classical sources, identifying all issues that are relevant for minorities, orga-
nizing and analysing these issues and then contextualizing them within the special needs of
the minority in question, thereby reaching a better solution and more practical fatwas.
Given this interpretation, one can anticipate al-Qaradawi’s sources for his fiqh al-aqaliyyat:
the Qurʾan, the Sunnah, Ijmāʿ and Qiyās. After that, consideration of other sources can be
identified: ʿUrf, istis․lāh
․, istih․sān, sadd al-dharā’iʿ, etc. However, al-Qaradawi qualifies his usage
of these sources by arguing that he intends to use them within a framework of Ijtihād that
takes into account the comprehensive rules of fiqh, the exigencies of the time, the interest of
the Muslim community (rather than only the individual interest), the consideration of the
gradual application of the rulings, the recognition of human contemporary necessities and
the liberation of oneself from commitment to any single school of thought.6 One may ar-
gue that this methodology operates in al-Qaradawi’s overall discourse and in his projects of
‘Taysı̄r al-Fiqh’ and ‘Fiqh al-Awlawiyyāt’. Fiqh al-Aqalliyyāt is essentially a continuation of his
methodological framework.
Al-ʿAlawani, on the other hand, focused on methodology and attempted to define the
meaning of fiqh al-aqalliyyāt. His definition, however, also lacks a legal dimension. After
defining what constitutes fiqh and minority, he attempted to define fiqh al-aqalliyyāt, but,
instead, ends up merely justifying the need for that fiqh. He describes it as “a qualitative fiqh
that considers the interaction between the Islamic legal rulings and the conditions of the
community and the polity in which it lives.” He characterizes it as “a fiqh that applies to a
316
limited restrained community living under special circumstances. What might be good for
that community may not be so for another.” 7
The sources of fiqh al-aqalliyyāt, according to al-ʿAlawani, start with the Qurʾan and
the Sunnah. The classical fiqh, especially that which in relation to the interaction between
Muslim and non-Muslims, is historically bound and irrelevant to our present time. The
classical fiqh arguments can be taken as precedents but they should not govern our positions.8
Apart from al-Qaradawi and al-ʿAlwani, other Muslim scholars engaged in the debate.
ʿAbdullah al-Najjar,9 a member of the ECFR, tried to underline the justifications for the
need of fiqh al-aqalliyyāt. He argued that the Islamic jurisprudence manuals have little to say
about the current situations of Muslims. He gave two reasons for this. First, the detailed rules
of religion were based on the supremacy of Islam and the ability of the community to apply
its rules collectively under an Islamic state. The case when Muslims lived under non-Muslim
rules was discussed under general rules that do not correspond to the current presence of
Muslims in non-Muslim nation-states. Second, the historical moment when Muslims were
subject to non-Islamic rule were moments of intellectual stagnation and weakness, a matter
which did not encourage the establishment of a solid framework for Muslims in a non-
Muslim polity. Even the current residence of Muslims in the West began at a time when the
Muslim world was itself dominated and colonized by the West. However, the new presence
of Muslims in the West, under the new geography of the world, has proven an asset for Islam
and Muslims that needs to be supported. Although Muslim jurists, he argues, try to respond
to the new situations with their fatwas and studies, their efforts lack an essential element, the
establishment of legal us․ūlı̄ rules that consider the peculiarities of the new situation. These
new rules will not disregard the general us․ūlı̄ rules but will add to them a greater focus on
the needs of Muslim minorities. These principles would include maintaining the religious
life of Muslim minorities, introducing Islam to the wider society, and establishing a civilized
and collective fiqh that is not limited to ʿibadāt, but rather incorporates all walks of life and
determines their relationships with their society, their environment, etc.10
Salah Sultan,11 a member of the Fiqh Council of North America, argues, in the same
vein, for the need for methodological principles for fiqh of minority. The most interesting
aspect of his research, however, is his argument that the fiqh of minority should be based on
strengthening feelings of citizenship and belonging to one’s country. His language represents
a paradigm shift from both traditional and contemporary discourses in that he does not begin
by establishing a jurisprudential basis for his analysis. Instead he jumps to what some other
scholars may consider a conclusion. In other words, Sultan calls on the proponents of that fiqh
to make it a positive fiqh rather than a defensive one.12
Analysing the different positions discussed in different sources, one can argue that al-
Qaradawi represents a trend of traditional reformism that bases its analysis on the general
basic rules of traditional fiqh. Al-Najjar and Sultan take the issue a step further by factoring
in the context. Al-Najjar concentrates on us․ūlı̄ rules, while Sultan considers citizenship in
the society an us․ūlı̄ principle that takes priority. Al-ʿAlawani, on the other hand, represents a
more intellectually and philosophically oriented school.
The discourse of fiqh al-aqalliyyāt was primarily developed by Sunni activist-jurists of
Arab origin who immigrated to the West in the 1980s and 1990s, or those who had strong
connections with those immigrants either due to activists’ circles or governmental support.
Although many non-Arab immigrants, especially Indian and Pakistani scholars, have been
increasingly participating in the legal debate during the last decade, the discourse itself is
dominated by Arab jurists and intellectuals. This may be due to the fact that non-Arab
317
Said Fares Hassan
immigrants, who are mostly South Asians, have had prior experience with both secularism
and minority issues in their home countries, having engaged and worked with non-Muslims
in an open environment. Therefore, they did not have much problem seeking Western cit-
izenships or politically engaging with the non-Muslim polity. But Arabs did not have this
experience. Instead, their memories are alive with colonized histories followed by despotic
regimes that used puritan forms of religion to control the masses and galvanize them against
the ‘liberal’ West. This created an internal dynamic of distancing oneself from the culture
and politics of the ‘other’. It took Arab immigrants some time to realize the qualitative
difference of their new life and its potential for their advancement, whether in political,
economic or even religious realms.
Most of those involved in the discourse of fiqh al-aqalliyyāt have an affiliation with modern
movements of political Islam, especially the Muslim Brothers. As activists in an alien setting,
they needed to justify their presence in relation to their faith and to their country of origin.
Also as activists within their new residence, they sought to maintain an Islamic vision of life
and promote it among their fellow Muslims. This was done through establishing national
institutions such as the Muslim Student Association in the United States and the Federation
of Islamic Organization in Europe. The more engaging these institutions were with their
local and non-Muslim community, the more the need was felt for a specific legal discourse,
i.e. fiqh al-aqalliyyāt, that responds Islamically to the new challenges.
How to relate this new branch of jurisprudence for minorities with ‘traditional’ fiqh?
What is the impact that minority fiqh has on traditional fiqh and vice versa? Legal debate
shows that jurists mostly consider fiqh of minority as a sub-category of traditional fiqh. They
share the same sources, the same legal principles, the same deductive rules, etc. They differ
in the consideration of the context that may require a re-ordering of priorities or overweigh-
ing a certain juristic position. In such a way, fiqh al-aqalliyyāt is a label for a methodology
of sifting, compiling and organizing traditional fiqh positions in a way that presents urgent
minority questions in a mild accommodating manner. Other jurists, however, redefine the
meaning of fiqh, so as not to limit its connotation to legal determinations but to signify the
earlier usage of the term to cover theology, law and ethics. Some other jurists relate fiqh
al-aqalliyyāt to modern understanding of the function of law, i.e. an epistemological field that
requires the interaction of various realms: the legal, the sociological, the psychological and
the historical. The main concern of the minority jurists is to go beyond the literal adoption
of traditional fiqh and look for the general absolute principles of Shariʿah. If certain traditional
jurists divided the world into two abodes, the abode of Islam and the abode of War, Shariʿah
does not obligate that. If traditional jurisprudence demands Muslims to be loyal only to one
entity, Shariʿah allows multiply loyalty, to one’s religion, to one’s residential community, to
one’s family, etc.
Fiqh al-aqalliyyāt uses the rich Islamic legal tradition to provide jurists and leaders of Mus-
lim minorities not only with answers for their questions but also with legal premises that may
be utilized on one hand to ethically respond to the claims of a Muslim’s inherent disloyalty
to his non-Islamic state and on the other hand to support Muslims’ social bonds and enhance
their political influence within the non-Muslim general public. These legal premises include:
deepening the feeling of citizenship; responsibility for the welfare of one’s country (even if it
is non-Muslim); stressing the civilized dimension of Islamic Law (e.g. jurisprudence for the
environment, for human rights, for minority rights, etc.); the practice of collective Ijtihād; the
significance of piety in legal deduction; the consideration of community priorities; and find-
ing legitimate alternatives for forbidden matters in minority contexts. Although these ideas
were mainly introduced in the context of minorities, they have been reiterated and affirmed
318
in some contexts in the majority context, a matter that shows the travel and impact of ideas
back and forth between majority and minority Muslim communities.
Fiqh al-aqalliyyāt has also been used as an intellectual forum to introduce an Islamic perspec-
tive on the question of world minorities, which has been one of the challenges encountering
modern nation states in the contemporary world. In his study Jamal al-Din ‘Atiyya, Nahwa
Fiqh Jadid li-l-Aqalliyyat (Cairo: Dar al-Salam, 2007), for example, Jamal al-Din ʿAtiyya, an
Islamic Law scholar and lawyer, examines the question of world minorities, regardless of their
ethnic, religious or linguistic origin. He argues that there is no contradiction between the
international legal conventions and the Islamic legal tradition on minority questions. Rather,
they complete each other. The Islamic vision introduces theoretical basics and practical princi-
ples that constitute a substance that international treaties translate into legal commitments, and
establishes necessary mechanisms to monitor the application of these commitments.
The impact of minority fiqh is not confined to minority communities, but it has an impact
on the field of Islamic Law as a whole and the conceptualization of its role in the modern
world. As modern Muslim jurists stress the need to ijtihād, tajdı̄ d and reform, minority jurists
found the field of minority jurisprudence a good space to test their ijtihād methodologies and
reform ideas. The advocates of this fiqh had their own ijtihādi projects with a view to making
Islam, referred to here as fiqh, relative to the questions and conditions, be they political, social
or scholastic, of the present time. Al-Qaradawi, for example, introduced his project of mod-
eration and facilitation, where he attempts to present a moderate vision of how to reclaim
the spirit of Islam and how to redefine the role of Muslims in present-day life. Al-ʿAlwani
proposed his ijtihādi project of the Islamization of Knowledge, where he aims to revive the
universal Islamic philosophy of knowledge by redefining the objectives of the Shariʿah. Jamal
ʿAtiyya, an advocate of fiqh al-aqalliyyāt, pioneered the project of al-tanwı̄r al-Islāmı̄, that is,
the Islamic Enlightenment Project. In this project ʿAtiyya calls for a new ijtihād/revival of the
science of the principles of jurisprudence. Those scholars managed to utilize the minority
space to apply their reform projects. In another way, those jurists used minority questions to
test their reform projects. For example, al-Qaradawi bases his fatwas on the principle of facil-
itation and removing people’s hardships even if this means not adopting the position of the
majority of jurists (see, for example, his fatwa on the conditional permissibility of mortgage).
As another example, Al-ʿAlawani applies the principle of islamization through the widening
of the scope of fiqh and incorporating interdisciplinary branches of knowledge such as sociol-
ogy and psychology to answer a minority question (see his fatwa on political participation).
The language of the discourse of fiqh al-aqalliyyāt is different from the traditional fiqh in
its conceptualization of the non-Muslim ‘other’. While traditional fiqh bases its positions on
the division of the world and the classifications of people into Muslim, dhimmı̄, ․harbı̄ and mus-
taʾman, contemporary minority jurists stress the values of justice, freedom and human rights.
This value-based discourse is unusual in the context of Muslims’ discussion of the Western
world. Not long ago, and even in some circles today, the West is often seen as an immoral
land without values. If contemporary anti-Muslim trends promote a conflict of civilizations,
the Muslim literature talks about a conflict of values. To challenge this value conceptualiza-
tion of the West, fiqh al-aqalliyyāt provides Muslim minorities with a different evaluation of
the Western value system (of justice, equity, egalitarianism, etc.). In fact, it makes them uni-
versal, and as such Islamic. In so doing, fiqh al-aqalliyyāt promotes not only a normalization of
Muslims’ lives in the West from a juridical point of view, but also from an ethical and moral
point of view. This means a moral commitment to maintain the basic political and social
values of the non-Muslim society such as justice, freedom, equality, etc. This commitment
cannot be maintained until there has been a process of critical investigation and redefinition
319
Said Fares Hassan
of the Islamic classical jurisprudential classification of the world into dār al-Islām and dār al-
․harb. Minority jurists hold that this binary division of the world is context-specific and inap-
plicable to the contemporary world. If there is at all a need to divide the world, the negative
identification of an abode is no longer legitimate. Alternatives such as an abode of humanity,
an abode of immigration, an abode of citizenship or an abode of co-existence and coopera-
tion, or an abode of contract are more valid than other negative divisions. Consequently, the
jurisprudence of minorities is better called jurisprudence of citizenship or co-existence or
fiqh al-taʿaruf, i.e. knowing one another.
In a practice of adaptation, accommodation and negotiation with contextual realities and
a reaffirmation of the changing nature of the Islamic legal system, fiqh al-aqalliyyāt aims at
four parallel goals. First, it contextualizes the legal tradition by arguing that the classical
tradition is a result of its own context. Second, it normalizes a Muslim’s life in the West by
providing evidence that Western life is in harmony with Islamic principles. Third, it argues
that certain Shariʿah principles do not contradict liberal ethical beliefs. Fourth, it constructs
a neo-Muslim identity where law, context and identity converge and balance. The ultimate
objective of this process is to normalize Muslims’ life in the West via an Islamicized package
that addresses individuals’ religious aspirations, the integrity of traditions, the authority of
jurists, the threat of identity erasure in a globalized context, and the theoretical discourse of
globalization and liberalization. Kathleen Moore elaborates that diasporic jurisprudence is a
form of legal strategy designed to ‘normalize’ Muslims’ presence in the West, not necessar-
ily in terms of the dominant institutions of a society, but internally, through the conscious
use of Islamic idioms. The use of Islamic idioms serves multiple purposes: it empowers the
identity of Muslims by connecting it to its historical roots; it assures the non-Muslim society
that Islam has internal dynamics that fit their framework of reference and that Islamophobic
claims are not warranted; it provides verification that the discourse participants are legally
qualified and authorized to examine the issue; it renders their discourse authoritative enough
for the satisfaction of diverse groups; and it constructs normative claims that can serve as
principles for future debates.13 These various elements have been evident in the discourse of
minorities. One may venture to argue that were it not for this internal discourse, Muslim
integration into Western societies would not be complete.
At the same time that the debate on the Islamicity of the presence of Muslim minorities
in non-Muslim polities was on the rise among Muslim concerned bodies, western-based
scholars contributed to the understanding of this phenomenon. Although many of their
writings focused mainly on the historical and social setting,14 others, though few, realized
the significance of the emerging religious discourse. Koningsveld stressed the significance
of fatwas in the formulation of a European Muslim identity.15 Rohe discusses the possibilities
and opportunities of accommodation between Muslims, Islamic law and European laws
through legal arrangements and religious non-binding verdicts ( fatwa).16 More recently,
young western researchers observed the rise of the minority fiqh debates and extensively
investigated the growing discourse. Informed by liberal political theory, March illustrates
the presence of moral obligation in Islamic law and the possibility of overlapping consen-
sus between liberal principles of citizenship and fiqh al-aqalliyyāt.17 Hellyer underlines the
parameters of a social setting to build a European identity for Muslim citizens.18 Alexandre
Caeiro focuses on the process of fatwa-production in the west and the case of the European
Council for Fatwa and Research.19 Hassan recognizes three different approaches (literalist,
conservative and renewal) to religious questions of Muslim minorities, each of which would
result in different, sometimes competing, world views of the law of Islamic law for Muslim
minorities.20
320
Even with the growth of literature on fiqh al-aqalliyyāt on both sides (the internal Muslim
legal production and the observing academic investigation), it cannot be argued that the sub-
ject of fiqh al-aqalliyyāt has taken its final shape. On the Muslim side, jurists and discourse par-
ticipants argue for the need of transforming the fiqh al-aqalliyyāt discourse to fiqh al-muwat․ana
and fiqh al-taʿayush ( fiqh of citizenship and fiqh of co-existence). Attempts are still being made
to provide a comprehensive legal theoretical frame for a transformation in Islamic legal think-
ing that cope with the challenges facing 21st-century Muslims. Also studies are being con-
ducted to see if the space created by fiqh al-aqalliyyāt may be further utilized for re-thinking
the role of maqasid, i.e. the objectives of Shariʿah21 in current debates. On the other side,
academics and researchers still investigate the impact that this discourse might have on the
ongoing changes in the Muslim mind and space. Eyadat, for example, explores to what extent
a discourse on fiqh al-aqalliyyāt may have an impact on the political scene of the Arab Spring.22
Notes
1 To review the legal historical debate on Muslims in minority situations, see Khaled Abou El
Fadl, ‘Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from
the Second/Eighth to the Eleventh/Seventeenth Centuries’, Journal of Islamic Law and Society 1(2)
(1994): 143–53.
2 Jocelyne Cesari, When Islam and Democracy Meet: Muslims in Europe and in the United States
(Basingstoke and New York: Palgrave Macmillan, 2004), 21; Muʿtaz al-Khatib, ‘Min al-Ightirab ila
Afaq al-Musharaka, al-Muslimun fi al-Gharb’, Al-Manar al-Jadid 15 (Cairo: Dar al-Manar al-Jadid
in co-operation with Islamic Assembly of North America, 2001), 49.
3 Dr Sayyid M. Darsh is an Azhar graduate who was the imam at the Regents Park Mosque in L ondon
for many years. He was also the chairman of the UK Shariʿah Council.
4 See, for example, Khalid Muhammad ʿAbd al-Qadir, Fiqh al-Aqalliyyat al-Muslima (Lebanon: Dar al-
Iman, 1997); Khalil al-Moumni, Al-Fatawa al-Badriyya: Majmuʿah min al-Asʾila fi Mawadiʿ Mukhtalifa
wa-Mutanawwiʿa fi al-ʿIbadat wa-l-Muʿamalat wa-l-Akhlaq wa Shuʾun al-Usra waradat ʿala Masjid Badr
bi-Wajda wa-Masjid al-Nasr bi-Rotterdam- Hulanda (Casablanca: Dar al-Rashad al-Hadithiyya, 1998);
ʿAbd al-Wadud Shalabi, Ijabat Hasima ila al-Ukht al-Firnsiyya al-Muslima, 2nd edn (Cairo: Mu’assasat
Al-Khalij al-ʿArabi, 1989); Muhammad Rassoul, Der Deutsche Mufti (Cologne: Islamische Bibil-
iotheck, 1997); Tabatabaʾi al-Hakim, Risala Abawiyya wa-masaʾil fiqhiyya tahammu al-Mughtaribin
(Parental Advice and Jurisprudence Questions of Significance to the Expatriates), prepared and
introduced by Muhammad Jawwad al-Tahiri (Beirut: Muʿassasat al-Murshid, 1994).
5 Yusuf al-Qaradawi, Fi Fiqh al-Aqalliyyat al-Muslima, Hayat al-Muslimin Wasat al-Mujtamaʿat al-Ukhra
(Cairo: Dar al-Shuruq, 2001).
6 Ibid., 30ff.
7 Taha Jabir ʿAlawani, Fi Fiqh al-Aqalliyyat al-Muslima, Series of Islamic Enlightenment 52 (Cairo:
Nahdat Misr, 2000), 5–6; Taha Jabir ʿAlawani, Towards a Fiqh for Minorities, Some Basic Reflections
(Herndon, VA: International Institute of Islamic Thought, 2003).
8 ʿAlawani, Fi Fiqh, 11–12.
9 ʿAbd al-Majid al-Najjar, a Tunisian, has been associated with Zaytuna University since 1975. He
is known for his support of the Islamic Movement of Tunisia. He has various publications on the
question of Islamic Renewal. He now lives in France. He was a prominent figure in the formation
of the ECFR and a member of the editorial committee of ECFR Review.
10 See ʿAbd al-Majid al-Najjar, ‘Nahwa Manha Usuli li-Fiqh al-Aqalliyyat’, Scientific Review of the
European Council for Fatwa and Research 3 (n.d.): 43–65. See also: Al-Najjar, ‘Maʾlat al-Afʿal wa-
Atharuha fi Fiqh al-Aqalliyyat’, Scientific Review of the European Council for Fatwa and Research 4
(n.d.): 149ff.
11 Salah Sultan is an Egyptian scholar who used to live in the United States. He was a faculty member
of Cairo University, Egypt, and a founding member of the Islamic American University. He is a
member of ECFR and Fiqh Council of North America.
12 Salah Sultan, ‘Al-Dawabit al-Manhajiyya li-Fiqh al-Aqalliyyat’, Scientific Review of the European
Council for Fatwa and Research (available online: http://www.e-cfr.org/ar/bo/18.doc).
321
Said Fares Hassan
13 Kathleen Moore, The Unfamiliar Abode: Islamic Law in the United States and Britain (Oxford: Oxford
University Press, 2011), 4-ff.
14 Yvonne Yazbeck Haddad, Jane I. Smith and John L. Esposito, Religion and Immigration: Christian,
Jewish and Muslim Experience in the United States (Walnut Creek, CA: Rowman Altamira, 2003);
Yvonne Yazbeck Haddad, Muslims in the West: From Sojourners to Citizens (New York: Oxford
15 P. S. van Koningsveld, ‘The Significance of Fatwas for Muslims in Europe: Some Suggestions for
Future Research’, Nederlandsch Theologisch Tijdschrift 60(3) (2006): 208–21.
16 Mathias Rohe, Muslim Minorities and the Law in Europe: Chances and Challenges (New Delhi: Global
Media Publications, 2007).
17 Andrew F. March, ‘Sources of Moral Obligation to non-Muslims in the “Jurisprudence of Muslim
Minorities” (Fiqh al-Aqalliyyat) Discourse’, Islamic Law and Society 16 (2009): 34–94; see also A ndrew
F. March, ‘Liberal Citizenship and the Search for an Overlapping Consensus: The Case of Muslim
Minorities’, Philosophy and Public Affairs 34(4) (2006): 373–421.
18 H. A. Hellyer, Muslims of Europe: The ‘Other’ Europeans (Edinburgh: Edinburgh University Press,
2009).
19 See, for example, Alexandre Caeiro, ‘The Social Construction of Shariàh: Bank Interest, Home
Purchase and Islamic Norms in the West’, Die Welt des Islams 44(3) (2004): 351–75; Alexandre
Caeiro, ‘The Making of the Fatwa: The Production of Islamic Expertise in Europe’, Archives de sci-
ences sociales des religions 155 (October): 81–100; Alexandre Caeiro, ‘The Power of European Fatwas:
The Minority Fiqh Project and the Making of an Islamic Counter-public’, International Journal of
Middle East Studies 42(3): 435–49.
20 Said Fares Hassan, Fiqh of Minorities, History, Development and Progress (New York: Palgrave
M acmillan, 2013).
21 Tauseef Ahmad Parray, ‘The Legal Methodology of Fiqh al-Aqalliyyāt and its Critics: An Analyt-
ical Study’, Journal of Muslim Minority Affairs 32(1) (March 2012): 88–107; Zainab Alwani, ‘Maqās․id
Qurʾāniyya: A Methodology on Evaluating Modern Challenges and Fiqh al-Aqalliyyāt’, The Muslim
World 104(4) (October 2014): 465–87.
22 Zaid M. Eyadat, ‘Fiqh al-Aqalliyyāt and the Arab Spring: Modern Islamic Theorizing’, Philosophy
and Social Criticism 39(8) (2013): 733–53.

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Alwani, Zainab. ‘Maqās․id Qurʾāniyya: A Methodology on Evaluating Modern Challenges and fiqh
al-Aqalliyyāt’. The Muslim World 104(4) (October 2014): 465–87.
Caeiro, Alexandre. ‘The Social Construction of Shariàh: Bank Interest, Home Purchase and Islamic
Norms in the West’. Die Welt des Islams 44(3) (2004): 351–75.
Cesari, Jocelyne. When Islam and Democracy Meet, Muslims in Europe and in the United States (Basingstoke
and New York: Palgrave Macmillan, 2004).
Dawish, Ahmad b. ʿAbd al-Razzaq al-, ed. Fatawa al-Lajna al-Daʾima li-l-Buhuth al-ʿIlmiyya wa-l-Iftaʾ
(Riyadh: Dar al-ʿAsima, 1998).
Delorenzo, Yusuf Talal. ‘The Fiqh Councilor in North America’. In Muslims on the Americanization
Path, ed. Yvonne Yazbeck Haddad and John Esposito (Oxford: Oxford University Press, 2000),
65–86.
European Council for Fatwa and Research. Qararat wa-Fatawa al-Majlis al-ʾUrubi li-l-Iftaʾ wa-l-Buhuth
(Cairo: Dar al-Tawziʿ wa-l-Nashr al-Islamiyya, 2002).
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Eyadat, Zaid M. ‘Fiqh al-Aqalliyyāt and the Arab Spring: Modern Islamic Theorizing’. Philosophy and
Social Criticism 39(8) (2013): 733–53.
Gräf, Bettina and Jakob Skovgaard-Petersen (eds). Global Mufti: The Phenomenon of Yusuf al-Qaradawi
(New York: Columbia University Press, 2009).
Hassan, Said Fares. Fiqh of Minorities: History, Development and Progress (New York: Palgrave Macmillan,
2013).
Hellyer, H. A. Muslims of Europe: The‘Other’ Europeans (Edinburgh: Edinburgh University Press, 2009).
Ibn Bayya, ʿAbdullah. Sinaʿat al-Fatwa wa-Fiqh al-Aqalliyyat ( Jeddah, Saudi Arabia: Dar al-Minhaj li-l-
Nashr wa-l-Tawziʿ, 2007).
Judayʿ, ʿAbdullah b. Yusuf al-. Taqsim al-Maʿmura fi al-Fiqh al-Islami wa-Atharuh fi al-Waqiʿ (Dublin:
European Council for Fatwa and Research, 2007).
March, Andrew F. ‘Liberal Citizenship and the Search for an Overlapping Consensus: The Case of
Muslim Minorities’. Philosophy and Public Affairs 34(4) (2006): 373–421.
March, Andrew F. ‘Sources of Moral Obligation to non-Muslims in the ‘Jurisprudence of Muslim
Minorities’ (Fiqh al-Aqalliyyat) Discourse’. Islamic Law and Society 16 (2009): 34–94.
Masud, Muhammad Khalid. ‘Islamic Law and Muslim Minorities’. ISIM Newsletter 11 (December,
2002): 17.
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Parray, Tauseef Ahmad. ‘The Legal Methodology of Fiqh al-Aqalliyyāt and its Critics: An Analytical
Study’. Journal of Muslim Minority Affairs 32(1) (March 2012): 88–107.
Qaradawi, Yusuf al-. Fi Fiqh al-Aqalliyyat al-Muslima (Cairo: Dar al-Shuruq. 2001).
Rohe, Mathias. Muslim Minorities and the Law in Europe: Chances and Challenges (India: Global Publica-
tion, 2007).
Rohe, Mathias. ‘The Formation of a European Shariʿah’. In Muslims in Europe: From the Margin to the
Center, ed. Jamal Malik (Munster: LIT Verlag, 2004), 161–184.
Sawi, Salah al-. Mawsuʿat Fatawa al-Mughtaribin (Cairo: Al-Faruq al-Haditha li-l-T ․ ibaʿa wa-l-Nashr,
2009).
Shawarbi, Muhammad Yusuf al-. Al-Islam fi Amrika (Cairo: Lajnat al-Bayan Al-ʿArabi, 1960).
Sultan, Salah. Al-Dawabit al-Manhajiyya li-l-Ijtihad fi Fiqh al-Aqalliyyat al-Muslima (n.p., 2007).
Sultan, Salah. Al-Muwatana bayna al-Taʾsil al-Sharʿi wa-Taʿaddud al-Walaʾat al-Diniyya wa-l-T ․ aʾiffiyya wa-
l-ʿIrqiyya (n.p., n.d.).
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19
Family law and succession
Irene Schneider
Introduction
The terms ‘family law’, ‘succession’ and/or ‘personal status law’ are modern Western catego-
ries adopted by contemporary Muslim states in the process of modernizing Shariʿah law and
codifying it. Islamic pre-modern law differentiates between matters of ritual and worship
(ʿibādāt) versus relations among human beings (muʿāmalāt) of which marriage and succes-
sion fall, broadly speaking but not exclusively, under the second category.1 The pre-modern
fiqh-literature deals with these matters under the headings of nikāh․ (marriage), ․talāq (repudia-
tion) and farāʾid
․ (lit. allotted portions: succession).2 Family law and succession are extensively
dealt with in the Qurʾan and Sunnah. Sexuality outside marriage and legal possession, i.e.
sexual relation of a man with his female slave, is forbidden and men and women are equally
punished for unlawful sexual relation (zinā) (24:2–4),3 which is God’s right.4 Also mentioned
in the Qurʾan are a woman’s right to dower (s․adāq/mahr) (4:4), the man’s prerogative to marry
up to four wives (4:3), man as head of the family (4:34), as well as forms of marriage separa-
tion (2:226–32; 65:1–5) and the waiting period (ʿidda) (2:228) a woman has to observe after
the end of a marriage. Regulations in the Qurʾan can be interpreted as correcting the pre-
Islamic custom: dower was now given to the woman herself and not to her father, a male’s
right to marriage was restricted to four women and levirate marriage was forbidden (4:23),
as was the practice of killing new-born baby girls (81:8–9).5 On the other hand, traditions
seem to imply that women had more space of movement and sexual freedom in pre-Islamic
time, including the existence of different forms of marriage, which seem to have been matri-
local and matrilineal.6 Khadija, the first wife of the Prophet and a rich and self-confident
merchant, who hired Muhammad and offered him marriage, is often named in this respect.
However, the scarcity and inconsistency of the sources of the first and second centuries do
not warrant far-reaching conclusions. With all due caution, it may be said that verses and
regulations reflecting gender equality, e.g. zinā – punishment for both men and women in
the Qurʾan (24:2–4), stand beside verses which reflect gender hierarchy, such as 4:34. A vari-
ety of different types of marriages (obviously including matrilocal and matrilineal forms) in
pre-Islamic time was replaced by a strict patriarchal, patrilineal and patrilocal form of mar-
riage. The pre-Islamic legal practices were thus corrected and fixed by the Qurʾan. They can
be seen as a reflection of the historical situation of seventh-century Arabia.
324
In the centuries following, these Qurʾanic verses (as well as the Sunnah reports) were
interpreted by the jurists, who held the monopoly of exegesis.7 Since the literary period of
Islamic law, which started in the middle of the eighth century,8 authoritative fiqh texts were
produced by the four Sunni schools and the main Shiʿi school of law, the Imamiyya, and
jurists deduced a broad variety of detailed rulings and opinions justifying the classification
of Islamic law as ‘jurists’ law’.9 This inherent pluralism of Islamic law is expressed in what
the jurists call their ‘difference’ (of opinions) (ikhtilāf ) which is institutionally represented in
the mentioned schools of law.10 Obviously, the well-known categorization of Islamic law as
a ‘holy’ law, in the sense of eternal and therefore immutable, is not in accordance with the
wide range and varieties (‘difference’) of opinions deduced from the holy law that are all
equally accepted in fiqh.
The ‘differences’ may seem small and hairsplitting but from the believers’ perspective
they could matter: As traditional doctrine allows a Muslim to change his or her school of
law at will, a girl brought up according to the Shafiʿi law school, which did not allow her
to marry without a marriage guardian, could claim to have adopted the Hanafi system,
which would allow her, having reached maturity, to conclude her own marriage contract.11
Fascinating questions arise as to how these rulings were actually applied in the courts in
pre-modern times by the (male) judges.12 How did women deal with it? Did they know about
the competing rulings of the schools of law? Considering their family and social as well as
legal backdrop, could they just turn to a Maliki judge as in the above-mentioned case from
19th-century British India, which Coulson quotes? There is a vast desideratum for research
on legal practices of courts, as well as on actors, due to the comparatively scarcity of sources
available on the legal practice in pre-modern times. As the focus of this chapter is on the
normative literature, the legal practice cannot be dealt with here.
Despite the great variety of rulings and different nuances in the regulations of gender roles
in the schools of law, the patriarchal family structure remained, as mentioned above, the basic
idea of family and gender relations until the modern age. In what follows, special attention is
given to the differences between the schools of law, since a process of ‘picking and choosing’
out of the different opinions of the law schools13 can be observed in the making of modern
legislation and codification.
The first part of the chapter will deal with the regulation of sexual relations, the second
part with family law chronologically from betrothal and marriage to separation, including
the legal effects of marriage such as parentage. The third part covers the regulations regard-
ing succession and, finally, a summary will be presented at the end.
1 Sexuality: male, female, third gender

The classical Islamic fiqh literature is predominantly based on the concept of two genders
(male and female) and their rights and duties. Both have a right to sexual satisfaction, which,
in contrast to Christian marriages, is not exclusively connected to procreative purposes but
also to enjoyment of sex as such.14 Addressing men, in 2:223, women are referred to as a ‘place
of sowing your seed’, whereas in 2:187, men and women are more mutually seen as a ‘gar-
ment for each other’.15 In the male-centred terminology of fiqh-literature, a woman becomes
permissible (h․alāl) for a man in two ways: by marriage or possession, i.e. possession of a slave
woman (milk al-yamı̄n).16 The sexual act is identified with penetration (dukhūl) (anal or vag-
inal), the active part being the man/penetrator and the passive part the woman/penetrated.
Besides the active–passive dichotomy of male–rational and female–emotional which was
well known to the Muslim jurists, Muslim jurists argued on the basis of the Prophet’s saying
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that women have weaker rationality, that women are overpowered quickly by emotions and
have an inclination to disturb normal life.17 As sexuality is only permitted in a marriage,
free women are expected to be virgins (bikr) before their first marriage and are classified as
deflowered (thayyib) when being divorced or widowed. Being deflowered without marriage
would mean a free woman would be a zāniya, a woman having committed unlawful inter-
course (zinā).
Preserving virginity before marriage, observing the waiting period and respecting the
gender segregation are measures that help to establish and secure the patrilineal lineage
(nasab), which is seen as crucial in a patriarchal society. Gender segregation has to be upheld
generally between opposite sexes as soon as they reach maturity. The usual exceptions are
the mah․ārim (plural of mah․ram), the ‘non-marriageable persons’, i.e. the nearest relatives (see
4:23) with whom mingling is permissible. The ambiguous meaning of this concept between
the sacred and the profane can be recognized when one semantically considers the root of this
word, ․h-r-m, meaning ‘holy’, ‘forbidden’.
Same-sex relations are legally prohibited. Lagrange has pointed out the impossibility
of subsuming the discussion on same-sex relations in pre-modern fiqh-literature with the
European/Western concept of homosexuality. The classical Arabic term liwāt․ refers to active
anal intercourse.18 Same-sex intercourse is equated to unlawful heterosexual intercourse by
most schools of law. Interestingly, some scholars among the Shafiʿis and Hanbalis hold that
the death penalty by stoning applies only to the active partner.19
Legal literature also deals with a ‘third gender’, the khunthā (pl. khināth). The term can
variously be translated as effeminate, transvestite, transsexual or hermaphrodite, referring to
failings to concur with the prevailing normative standards of masculinity. However, it has
been identified as a recognized ‘third gender’ in Oman by recent anthropological research.20
2 Marriage and marriage dissolution
2.1 Marriage (nikāh., zawāj)

The main type of marriage is permanent marriage based on a civil contract conceptualized
for life but with the possibility of divorce, which is different from that in pre-modern Chris-
tianity. Temporary marriage (mutʿa) is only accepted in Shiʿi law, where it is justified with
reference to 4:28. Coulson argues that mutʿa is not simply a nikāh․ with a time limit as an
accompanying condition, but a distinct and individual legal institution more or less falling
under the heading of hire or lease (ijāra).21 In practice, the Sunnis have the same arrangement,
because those who wish to marry only temporarily can circumvent the prohibition of mutʿa
simply by agreeing on living as husband and wife only for a certain limited period of time
without stipulating it in the marriage contract.22 Mutʿa is contracted for a specific period and
in consideration of a specific remuneration/lease (ujra) payable to the woman. The normal
impediments to a nikāh․ (see below) apply equally but there is no limit to the number of
women with whom a man may conclude mutʿa contracts, with no right of maintenance for
the woman and no corresponding duty of obedience falling upon her, as well as no rights
of mutual inheritance between the partners. There can be no divorce. As it is possible to
stipulate a time period of 99 years, a mutʿa marriage can be turned into a lifelong marriage
contract.
The prelude to the regular marriage contract is the betrothal (khit․ba), the promise of
marriage, which does not in itself constitute a marriage contract and therefore is not binding
on either party. The jurists disagree on how much the man may see of the woman’s body at
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the betrothal. Malik allowed the face and hands to be seen only, whereas others allowed see-
ing the whole body with the exception of the private parts.23
Marriage in all its aspects is dealt with extensively in the Qurʾan and therefore can be
regarded as an institution rooted in the divine law.24
The main features of marriage which have consequences in modern times are:
1) marriage as a civil contract and not, as in pre-modern church law, a sacrament;

2) insertion of stipulations into the contract is possible;
3) requirement of the walı̄, the bride’s guardian in signing the contract;
4) impediments to marriage;
5) general legal effects of marriage;
6) financial effects of marriage;25
7) offspring: parentage, custody and guardianship.
2.1.1 Contract (ʿaqd)

In contrast to Christian law, a marriage contract 26 is not sacrament but a civil contract and ‘at
once a legal, religious, economic and symbolic transaction’.27 The jurists compare it in some
perspectives to the contract of sale,28 and some jurists such as the Shiʿi al-Hilli (d. 726/1325)
define it as a contract that gives the husband ownership (tamlı̄ k) over intercourse.29 As a
contract, marriage shows traits that indicate a similarity with a sale contract. Accordingly,
the bridegroom concludes the contract with the legal guardian (walı̄) of the bride, i.e. the
nearest male relative, normally the father or grandfather. However, the fact that the dower
is not paid to the walı̄ but to the bride herself makes marriage a distinct contract. It need
not be written and must, like a sale or any other contract, be concluded through the two
pillars (arkān) of offer (al-ı̄jāb) and acceptance (al-qabūl). This is the only legally relevant act
in concluding marriage. However, privacy (khalwa) and consummation (dukhūl) are relevant
for legal, mainly financial consequences in case the marriage is dissolved. 30 Based on a saying
of the Prophet that there can be no marriage without witnesses, the jurists except the Shiʿis
agree that witnesses are a condition of the contract.31 ‘Secret marriage’ is not accepted.32 The
guardians can conclude marriage contracts between minor(s), 33 in which case consumma-
tion of the marriage is expected to take place after the minor(s) reach puberty. This would,
according to 21st-century standards, amount to a child marriage and allow girls below nine
lunar years and boys below 12 lunar years, the considered minimum ages for sexual matu-
rity, to get married. ʿAʾisha, the beloved wife of the Prophet, is said to have been married
off to the Prophet at the age of six or seven, and the marriage consummated when she was
nine years old.34 A minor boy coming of age can use his right to repudiation (see below). A
girl reaching puberty can, according to some jurists, claim the dissolution of the contract in
court according to what is called ‘vote on puberty’ (khiyār al-bulūgh). However, the Hanafis,
Hanbalis and Imamiyya do not grant her this right if the father or grandfather have given her
in marriage.35 Today, in most Muslim states the marriage age has been raised significantly or
it has been even been adapted to international human rights regulations, according to which
every person below 18 is a child.
It is possible to stipulate in the contract that, for example, the woman will have the right
to judicial divorce if the husband takes a second wife or that the wife is granted certain
rights, such as to work or leave the house. The husband may grant the wife the right of ․talāq
al-tafwı̄d․, the so-called ‘delegated ․talāq’. In this case, the husband allows the woman to free
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Irene Schneider
herself of the marital bond when a certain event occurs. These stipulations help women but
basically depend on the groom’s approval. Generally, marriage contracts are classified into
valid (s․ah․ı̄ ․h), irregular ( fāsid) and void (bāt․il), the consequences of which are discussed in
detail by the jurists. Only a ․sah․ı̄ ․h marriage is a valid and fully effective union. 36 Another
important aspect of marriage is kafāʾa, meaning that man and woman have to be of equal
matches with regard to lineage, piety, wealth and profession. It is understood as a right to
be exercised by the wife and her guardian. There is consent that the guardian cannot deny a
marriage of his ward if it is a marriage based on kafāʾa.37 The basis for this consent is a saying
of the Prophet that a woman is married for four things: her wealth, her lineage, her beauty
and her piety, but later jurists also discussed other aspects. Malik permitted marriages be-
tween the Arabs and the clients (mawālı̄), whereas Abu Hanifa ruled that a Qurayshi woman
can only marry a Qurayshi man. Certain professions were despised and a woman had the
right to refuse marriage to a man of such professions.38
The general and unanimous position of all schools of law is that a Muslim man has the
right to contract up to four marriages and that he does not require the wife’s permission to
do so. This right is not given to women. Today, many Muslim countries impose legal re-
strictions on polygyny, e.g. by imposing court hearings, but only in Tunisia and Turkey is
polygyny legally forbidden.39
2.1.2 Marriage guardian (walı̄ al-nikāh.)

The majority of jurists agree that a woman needs a marriage guardian. This is based on a
tradition by ʿAʾisha, according to which no marriage is allowed for the woman without a
walı̄.40 The Hanafis, however, allow a woman having reached puberty to contract her own
marriage. Ibn Rushd states that the jurists disagree whether the marriage guardian is a
condition of the validity of the contract. He argues that the verses and traditions quoted by
those who say it is a condition as well as by those who say it is not a condition are subject to
interpretation.41 The walı̄ is the nearest male relative, normally the father or grandfather. He
has to be Muslim, of male gender and mature. A woman cannot be a walı̄.42 Full brothers
and sons can be a woman’s marriage guardian, but Shafiʿi voted against the guardianship of
a son for his mother.43 Failing male relatives, the judge himself has to give her in marriage.
Between the jurists of the formative era (seventh to ninth centuries) and the classical age
(tenth to 12th centuries), Spectorsky finds a discernible tendency on the part of Hanafi and
Maliki jurists to further restrict a woman’s capacity to conclude her own contract, so that
their positions on this question become virtually indistinguishable from those of the Shafiʿis
and Hanbalis.44
With regard to consent, the jurists agree that the consent of a major (bāligh)45 deflowered
(thayyib) woman has to be taken into account, whereas there is discussion about the major
virgin’s (bikr) and the minor deflowered woman’s consent. In particular, the virgin is consid-
ered as being shy and thus her silence is taken as consent, whereas the deflowered woman is
seen as able to speak out for herself, based on the Prophet’s saying: ‘The deflowered woman
has a greater right over herself than her guardian (walı̄), but the virgin is to be asked about
herself and her silence is her permission’.46 Jurists agree that a father can force his minor
virgin daughter into marriage but he cannot force a divorced major daughter – again with
some exceptions. Ibn Rushd sums up that there is disagreement about the underlying cause
of forced consent, whether it is virginity or minority.47 Marriage by proxy is possible and a
person of full legal capacity may authorize another person to conduct the marriage on his
or her behalf.
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2.1.3 Marriage impediments (mawāniʿ)

Marriage impediments are either permanent or temporary.48 Permanent prohibitions which
are generally agreed upon are descent, relationship by marriage and fosterage, whereas there
is disagreement on zinā and liʿān (illegitimate sexual intercourse and imprecation, see be-
low).49 The ‘non-marriageable persons’, i.e. the nearest female relatives, are named in the
Qurʾan (4:25–9). The general rule is that any prohibited degree on grounds of kindred is
also prohibited on grounds of fosterage (4:23). It is permitted to marry one’s first cousin
and the half-brother’s half-sister (from another marriage), but it is forbidden to marry one’s
stepmother. Temporary prohibition is based on existing marriage and ʿidda (waiting period,
see below), irrevocable divorce or disbelief (kufr) and status of slavery, because an unbeliever
can become Muslim and a slave can be manumitted.50 A man is not allowed to be married to
more than four wives at the same time and not to two sisters at the same time. A free woman
can marry a male slave but there is disagreement about the marriage of a freeman to a fe-
male slave.51 The Sunni and Shiʿi jurists are unanimous that no Muslim woman can marry a
non-Muslim man, even among the people of the book, i.e. Christians or Jews (2:220).52 The
rationale behind this ruling is the patriarchal concept of lineage, which would mean that
children born to such a marriage would drop out of Islam and follow their father’s religion.
2.1.4 Rights (h.uqūq)

From every marriage rights and duties of the spouses arise, especially the permission of
sexual relation and the legitimacy of the offspring resulting from this sexual relation.53 Both
husband and wife have a right to sexual intercourse. However, the husband’s sexual appetite
is supposed to be stronger and he is granted the right to have intercourse whenever he wants
while respecting the religious prescription of purity, which prohibits sex during menstrua-
tion, in childbed and during fasting days in Ramadan. The woman has a right to sex, too,
but, according to some jurists, only every fourth day, so as to ensure that the husband can
evenly visit all his wives. This is because the woman has a right to her husband’s justice and
equal treatment of her and the other wives.54 A husband’s right, which is not unanimously
agreed upon, is the wife’s nursing and taking care of the household.55 The financial rights of
the wife will be dealt with below (see section 2.1.5 ‘Dower and maintenance (mahr/nafaqa)’).
The husband has not only a right to sexual intercourse, but also, more broadly, to obedience.
In pre-modern fiqh, 4:34 has traditionally been interpreted as the husband’s natural leading
position in the family above the wives, even including the right to reprimand and beat them.
The husband can choose the place of residence and can restrict the wife’s leaving this mater-
nal home. If the woman behaves as a recalcitrant, disobedient woman (nāshiza), she will lose
her right to maintenance.
2.1.5 Dower and maintenance (mahr/nafaqa)

Dower and maintenance are the financial effects of a marriage contract. There is no mat-
rimonial community of goods and separation of property is one of the main characteristics
of the pre-modern Islamic marriages well into modern times. It gives women a certain in-
dependence in marriage as well as after marriage. However, the husband’s obligation to pay
dower56 is one of the conditions of the validity of the marriage.57 This and his obligation to
pay maintenance (nafaqa) during the whole marital life have been maintained in modern per-
sonal status laws. There is no maximum limit but the minimum limit of dower is disputed.58
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A woman has the right not to engage in sexual relation before her dower is paid; it ‘becomes
due by consummation (dukhūl) or death’.59 Dower is inalienable and taken for granted even if
it is not expressly stated in the contract, in which case the dower of the equal (mahr al-mithl)
applies. According to Sunnis and Shiʿis alike, the dower may consist of anything that can be
valued in money, is useful and is ritually clean.60 Dower can be prompt (mahr muʿajjal) as well
as deferred (mahr muʾajjal). The latter seems to have had great practical relevance. The dower
becomes payable on the date agreed upon, otherwise on divorce or death. If the marriage is
dissolved by ․talāq before the first marital sex, the woman has the right to half of the dower,
according to 2:237, if she did not initiate the break-up of the marriage.61
Maintenance (nafaqa) is the second important financial claim and the lawful right of the
obedient wife under a valid marriage contract.62 It encompasses food, clothing, housing, toi-
let necessities, medicine, doctor’s fees, bathing and servants, if the wife is of a social position
which does not permit her to dispense with such services, or when she is sick. If the husband
does not pay, she can go to court and file a claim for judicial divorce.63 According to Ibn
Rushd, the jurists debate whether maintenance is a counter-value for sexual utilization, or
a compensation for the fact that she is confined (mah ․būsa, lit. a prisoner64) as in the case of a
sick or an absent husband. The maintenance shall be due to the wife if she places herself in
65
the husband’s power, including sexual intercourse, and she loses maintenance when she de-
nies these rights to her husband and is recalcitrant (nāshiza).66 The majority of Islamic jurists,
Sunnis and Shiʿis, rule that there shall be no maintenance for the wife who goes out to work
without the permission of her husband.
2.1.6 Legal effects with regard to the offspring

A central concept in this context is nasab, the legal and legitimate lineage. It is of the utmost
importance to the child to be born in wedlock and thus with a nasab connecting him or her
with his or her father. Marriage establishes the husband’s parentage of the offspring unless
there is indisputable evidence to the contrary. It creates mutual inheritance rights (see be-
low).67 No paternity can be established for an illegitimate offspring. The minimum term
of pregnancy is reckoned to be six lunar months for legitimate lineage to be established.68
A child born after separation shall be attributed to the husband if the interval between
separation and birth is one lunar year or less. However, the Malikis, especially, recognize
gestation periods up to four or five years,69 based on the concept of the ‘sleeping foetus’
(al-raqı̄ d). According to this perception, the embryo can stop developing in the mother’s
womb for a certain amount of time, thus stretching the time of pregnancy and helping to
create a legal nasab for the child born considerably after the death of the husband or the
divorce of the spouses.70
The category of walad al-zinā classifies a child born out of wedlock not only as illegal, but
a product of a sin and a crime against God. Still today these children are stigmatized. There
is no adoption in Islam but confirmation of paternity by a child’s father is possible and the
doctrine of acknowledgement (iqrār) can be used to establish legitimacy, but only when real
paternity is plausible.71
The full legal rights and obligations as well as the full legal representation are with guard-
ianship (wilāya) and rest in the hand of the father, including guardianship of the child’s assets
and marriage. Furthermore, the child has a right to upbringing and ․had․ānā is the mother’s
right to personal custody, such as caring for the bodily requirements of the child, feeding
and clothing the child, etc. Law schools differ with regard to the age of children who fall
under ․had․āna. It is up to around seven years for boys and for girls until they reach puberty.
330
All schools, Sunni and Shiʿis alike, hold that the mother, whether she is living with the hus-
band or separated, has the claim to the custody of her infant.72 However, if she remarries, she
loses this right. After the mother, according to the Hanafis, the right is given to maternal
relatives. The mother should foster the child if possible for two years (2:233).
Generally speaking, men are responsible for the maintenance of the family. Islamic jurists
and modern Arab personal status laws are unanimous that maintenance is a right of minors
who possess no property, against their father, and a right of the parents against their children
who have means to provide it. Taking care of a foundling is a religious duty and the baby’s
finder has the sole right to its guardianship unless he or she is unfit or a non-Muslim and a
Muslim disputes that right. A foundling is considered to be a Muslim if found in a Muslim
locality, or a Christian or a Jew if found by such a person in his own locality.73
2.2 Forms of marriage dissolution

The right to separation is again a male prerogative and women only have restricted access to
it.74 Generally, marriage may be dissolved by:
1) the husband in three ways: repudiation (t․alāq), injurious assimilation (z

․ihār) or vow of
continence (ı̄lāʾ);
2) the spouses, either by mutual agreement (khulʿ or mubāraʾa) or imprecation (liʿān);
3) judicial order of separation in a suit filed by the husband or the wife on various grounds
( faskh, khiyār).
2.2.1 Repudiation (t alāq)

˙
There is no dispute among the jurists as to the basic right of a husband to unilaterally re-
pudiate his wife at will without any formalities.75 Repudiation may be effected orally or in
writing, witnesses are not necessary for its validity and no reasons have to be given. T ․ alāq
pronounced in delirium or by a lunatic is invalid; ․talāq of an intoxicated man is disputed and,
in the case of culpable intoxication, it is regarded as valid by the majority. T ․ alāq pronounced
under pressure is valid, according to the Hanafis, but not according to the Malikis, Shafiʿis
and Hanbalis.76 The Shiʿis, however, insist that the pronouncement must be made orally, the
precise term ․talāq or some form thereof must be used in the presence of two witnesses and
there must be proof of a definitive intention to repudiate.
The repudiation is either revocable (rajʿı̄) or definite (bāʾin), depending on the way it is
formulated. If the ‘approved’ (see below) expression is used, it is revocable, otherwise (and
also if the repudiation is pronounced before consummation of the marriage) it is definite.
A revocable repudiation does not dissolve the conjugal community and can be withdrawn
during ʿidda (see section 2.2.2 ‘Waiting period (ʿidda)’ below). A definite repudiation dis-
solves the conjugal community. After a husband has repudiated his wife three times, the
former husband and wife can only marry again after the wife has been married to another
husband.
The ․talāq is classified as either ‘approved’ (t․alāq al-sunnah) or ‘disapproved’ (t․alāq al-bidʿa,
lit. innovation).77 T ․ alāq al-sunnah may take the form either of a single repudiation, which is
revocable by the husband until the expiry of the ʿidda, or of one repudiation followed by two
further confirmatory repudiations in successive months. These repudiations must ideally be
made during a time of ‘purity’ (t․uhr), i.e. when the woman is not menstruating and in which
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Irene Schneider
she has had no sexual relations with her husband. T ․ alāq al-bidʿa is the threefold utterance of
repudiation in one statement or one period of purity with ‘the advantage, for the husband
at least, of simplicity and finality’.78 The triple repudiation has become the normal form and
although it is considered a (bad) innovation (bidʿa), it is valid.79 The Imamiyya insists upon
strict adherence to the ‘approved’ forms under pain of nullity and thus manifests a desire to
confine the husband’s exercise of his power to repudiate within rigidly defined limits.80 As
mentioned above, ․talāq can be delegated (t․alāq at-tafwı̄d․) taking the form of a stipulation in the
marriage contract. There is also conditional ․talāq (taʿlı̄q al-t․alāq), which is pronounced after
the conclusion of the marriage and enforced when the condition occurs.81
T
․ alāq is often translated as ‘divorce’. But as in the case of other legal terms, too, it
makes sense to use the Arab terms to differentiate between the different types of marriage
dissolutions. Translating ․t alāq as divorce evokes the belief that it is compatible with mod-
ern forms of gender-equal judicial divorce, which it is not. For example, the M oroccan
legislator used the classical term ․t alāq in art. 78 of the Moroccan Family Law in 2004
and defined it as ‘the dissolution of the bonds of matrimony exercised by the husband
and wife, each according to his or her respective conditions’.82 This is an interesting
(re)interpretation or cultural ‘translation’ of the classical form of repudiation as the man’s
clear prerogative, which now appears to become a gender indifferent concept (‘exercised
by the husband and the wife’) but still is not an equal option for man and woman (for
translation, see Schneider 83).
2.2.2 Waiting period (ʿidda)

The revocable repudiation does not dissolve marriage until the waiting period is expired.84
It lasts three menstrual periods or, in the case of pregnancy, until delivery and is defined
as a period of abstinence, or a specified term during which the woman is neither neatly
married nor really divorced. The purpose behind ʿidda is twofold: to check whether the
woman is pregnant and to provide the husband with an opportunity to take her back.85
The husband can return to his wife (rajʿa)86 at any time during ʿidda, either expressly by
word of mouth or implicitly by resuming marital relations, without the necessity of a new
contract or dower and without needing the consent of the wife. Al-Quduri (d. 428/1037)
says that a man can return to his wife by announcing that he is returning to her, having
intercourse with her, kissing her, or gazing at or touching her with lust. It is recommended
to have two men as witnesses, according to 65:2, but the jurists did not consider this as le-
gally binding. According to one opinion, no witnesses are required, just as none is required
for any of the other rights a husband has over his wife.87 God’s word here is, as Spectorsky
puts it, understood barely as a recommendation.88 After the third pronouncement of ․talāq,
the marriage bond is irrevocably dissolved and the former wife becomes ․h arām/forbidden
to the former husband.
Two further forms of separation are ․zihār 89 and ı̄lāʾ,90 which date back to pre-Islamic time
and can still be found today in many modern personal status laws, although without playing
an important role. In ․zihār the husband compares his wife to a relative within a prohibited
degree of relation, e.g. his mother;91 in ı̄lāʾ the husband makes an oath of sexual abstinence
from the wife for four months or more.92 The Hanafis maintain that ı̄ lāʾ shall be irrevocable
after the lapse of the waiting period; the Malikis, Shafiʿis, Hanbalis and the Shiʿis make the
dissolution of marriage subject to a pronouncement of repudiation by the husband or to a suit
by the wife. It is then deemed revocable, although Malik makes return to the married status
contingent on consummation.93
332
2.2.3 Redemption (khulʿ and mukhā laʿa)

Redemption94 is a form of marriage dissolution by mutual consent in which the wife redeems
herself mostly by returning the dower to the husband.95 Khulʿ refers to Qurʾan 2:183 with a
metaphoric description of the spouses as vestments of each other. The dissolution is irrevoca-
ble and takes effect forthwith.96 Early Hanafis and Ibn Hanbal did not address the question of
two arbiters as part of the process of khulʿ but Malik and Shafiʿi said that the arbiters’ task was
either to separate or to reconcile the couple. According to Spectorsky’s comparison between
the formative and the classical texts, a ‘trusted man’ was newly included in classical literature
whose task was to oversee the couple’s behaviour and try to reconcile the couple. The arbiters
were called upon to act only after this reconciliation effort failed.97 This process is not part
of Hanafi discussion, but it is covered in Maliki, Shafiʿi and Hanbali texts.98 Khulʿ including
the arbiters has regained importance in modern time because in several personal status laws
(Egypt 2000, Morocco 2004) it is now understood as a form of judicial separation which
gives the woman the right to redemption even against the husband’s will. This is new and
grants women access to initiate divorce without having to refer to one of the legal grounds
(see section 2.2.4 ‘Court separation (khiyār fi al-nikāh․)’).
Liʿān99 is the husband’s oath that the wife has committed adultery and that the child born
as a result is not his, whereas she affirms under oath the contrary.100 It gives the impression of a
gender-equal act, but classical jurists, both Sunni and Shiʿis, agree that liʿān was the solution of
a problem brought to the Prophet by a husband who complained that if he knew for sure that
his wife was adulterous, or that her child was not his, he could not accuse her without bring-
ing in four righteous male witnesses to proof her infidelity, or else he would face the penalty
of false accusation (qadhf ). The liʿān was the solution to this situation. In the case of liʿān the
court decides. Liʿān does not seem to be of much importance in modernity.
2.2.4 Court separation (khiyā r fi al-nikāh., lit. option on marriage)

The only kind of separation which women could initiate is separation by court, for which
precise reasons are stipulated by the jurists.101 Following Ibn Rushd, the main legal grounds
for the courts to dissolve a marriage are:
1) a defect on the part of the husband or the wife;

2) failure on behalf of the husband to pay dower and maintenance;
3) absence of the husband without an acceptable excuse.
Defects are certain diseases, especially of the sex organs, as well as impotence or castration,
which make sexual relations impossible. A Hanafi wife could obtain a judicial annulment
of her marriage only if it could be proven that her husband was totally incapable of con-
summating the marriage, and on the grounds of putative widowhood if her husband had
become a missing person and 90 years had elapsed since the date of his birth.102 Women un-
der Hanafi classical law thus could not easily hope for a separation.103 The other three major
Sunni imams, Malik, Shafiʿi and Ibn Hanbal grant the wife the right to apply to the court for
divorce on specific grounds, the judge in such a case being asked to act on behalf of the hus-
band. The reason for these regulations is to prevent any harm (d․arar) to the woman mentioned
in connection with sections 2.2.1–2.2.3 above.104 This argument has gained special impor-
tance in modern times, based on Maliki and Hanbali pre-modern law. To counteract the
husband’s right of polygyny, Hanbali law regarded stipulations against a second marriage as
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Irene Schneider
enforceable. The Maliki concept of ‘harm’ was broad enough to allow an insistent wife a
judicial divorce in the event of her husband marrying again.105
Generally after the end of the marriage and the expiry of the waiting period, the woman
receives her dower but has no right to other payments. However, in very restricted cases,
there is an indemnity payable to a divorced wife provided that no dower has been stipulated,
which is called mutʿa.106 This indemnity has gained importance in modern times, as men who
abuse their prerogative to ․talāq and divorce a woman without her fault can be condemned by
the court to pay mutʿa, in the form of a monthly sum for a certain limited time.
To summarize, the divorce regulations in classical fiqh are clearly gendered. The right to
repudiation is in the husband’s hands, which he can exercise at will without the woman being
present or without informing her immediately. Khulʿ in its pre-modern version is no com-
pensation for or no expression of the female’s corresponding and ‘equal’ right to divorce, as
some modernists argue, because in pre-modern times she needs the husband’s consent. D ․ arar
is an option for women seeking the dissolution of marriage but it always obliges the woman
to prove her claim.
3 Succession
Schacht and Layish consider the Qurʾanic reform of succession as an improvement for women
who did not inherit anything in pre-Islamic time. Out of the estate of a deceased the costs
of the funeral and the debts are paid first. If the debts equal or exceed the assets of the estate
of the deceased, the assets are distributed among the creditors. The umm al-walad, the female
slave who has borne her master a child, becomes a free person as well as the child on the death
of her master. Excluded from succession are slaves and persons who have caused the death of
the deceased. Difference in religion and domicile also matter and are disputed. The power to
make a legacy is generally limited to one third of the estate. Female relatives generally receive
half the share of male relatives of the same degree.
The Imamiyya differs in inheritance from the rulings the Sunni schools developed.
For the Sunnis, the heirs are:
1) those entitled to a fixed share ( fard․ ) based on Qurʾan 4:7–14;

2) the ʿas․aba (male agnate relatives);
3) the manumitter;
4) the cognates (dhawū al-arh․ām), etc.107
For the Sunnis, entitlement to succeed on intestacy rests thus on three distinct grounds which
produce three separate groups of legal heirs: the Qurʾanic sharers, the male agnate relatives
(ʿas․aba) of the deceased, and, failing these two, female and cognate relatives. The Imamiyya
recognizes ‘relationship’ (qarāba) as a basis of entitlement. Accordingly, all relatives (with the
exception of the spouse relict who always takes his or her Qurʾanic share) are divided into
the following classes:
1) the lineal descendants and parents of the deceased;

2) brothers, sisters and their issue together with the grandparents of the deceased; and
3) uncles and aunts as well as their issue.
Entitlement, therefore, depends solely upon the position of the claimant heir within this
scheme. The system differs vitally from Sunni law in that it affords no distinctive place to the
334
male agnate relatives. Furthermore, female and cognate relatives who in Sunni law would
only succeed in the last resort, are in Shiʿi law integrated within the general framework of
classes. For example, the paternal grandfather of the deceased occupies a favoured position
in the Sunni scheme in the absence of the deceased’s father. Ranking as a substitute heir
for the latter, he will take a Qurʾanic share of one-sixth in the presence of any child of the
deceased, while by virtue of his agnate relationship he will be entitled, in addition, to any
residue where the only surviving child of the deceased is a daughter, will take twice as much
as the deceased’s mother, when in competition with her alone or in company with the spouse
relict, and finally will totally exclude any children of the deceased’s daughter. However, in
the Imamiyya, the presence of a child, grandchild or mother of the propositus precludes the
paternal grandfather from any rights of succession at all.108 As Coulson states, it is not only
that females and cognate relatives generally enjoy a more privileged position in Shiʿi law, but
rather that Sunni law, in recognizing the claims of the agnate collaterals, embodies a much
broader concept of the family group than Shiʿi law, which rests upon the predominance of
the narrower tie of relationship existing between a mother and father and their issue.109
4 Summary
With regard to an ideal type, Islamic marriage and inheritance belongs, as stated at the
beginning, to the patriarchal type. The husband is not only head of the family, he also rep-
resents his family in the public and controls the woman’s body, while having certain pre-
rogatives such as polygyny, repudiation right, guardianship and inheriting twice as much as
a woman. The separation of property has led Islamist feminists to argue that Islamic law is
‘modern’ because it gives women a right to property.110 However, this has to be seen as a part
of the whole picture of gendered relation in marriage. Mahr, even if not stipulated in the con-
tract, has to be paid before the first marital sex and maintenance is withheld from a woman
who is nāshiza, which is defined by the jurists as a woman refusing to have intercourse with
her husband and/or who does not obey him in other areas. The husband is responsible for
maintenance and if he is not able to provide it, the wife can ask for the dissolution of mar-
riage. This is corroborated by Ibn Rushd, who argued that maintenance is either seen as a
counter-value of sexual utilization (istimtāʿ, lit. enjoyment) or as compensation for the fact
that she is confined (mah․būsa, lit. ‘captive’) because of her husband in case of his absence.111
Thus, Islamic marriage can be seen as a relation of money in exchange for sexual service and
obedience, the property separation being a special Islamic flavour of patriarchal family struc-
ture but not an expression of gender equality. This core and kernel of gender relations have
not been changed or dissolved yet. Female and male activists engage in developing new role
models and types of masculinity and femininity against the backdrop of development toward
a nuclear family as well as the increasing education and professional life of women. They fight
for more gender equality and to curtail the husband’s right to polygyny and divorce. Still,
central male prerogatives – with the exception of Tunisia and Turkey – have not yet been
abolished. In a law passed in 2004, Morocco recognized husband and wife equally as head of
the family (art. 4) but polygyny still is possible and dower is still part of the contract.
What is the future of Islamic family law? Azza Karam defines three ideal types of femi-
nists in the Muslim world: Islamist feminists, who consider man and woman, not as equal,
but as having complementary rights and who (re)define the gender relation in a hierarchical
way keeping many male prerogatives; Muslim feminists, who are convinced that gender
equality and Islamic law can generally go together – both groups refer to Islamic sources
but engage in new interpretations; and secular feminists, who opt for the acceptance of
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Irene Schneider
international human rights standards including gender equality.112 Is there a chance for gen-
der equality to be realized in the Muslim nation states? The development surely depends on
the bargaining power these different social groups display. The legislator in Tunisia demon-
strated the general flexibility of the Shariʿah more than half a century ago by creating a
personal status law based on gender equality, prohibiting polygyny and giving women equal
access to divorce. Other states have not followed this radical course but have made smaller
steps towards more gender equality by curtailing some of the male prerogatives. It is thus
evident that fiqh, the human interpretation of God’s law, is adaptable to different times and
regions and that it has shown plurality in its interpretation throughout the pre-modern time
as well as in modernity.
Notes
1 Asaf A. Fyzee, Outlines of Muhammadan Law, 4th edn (Dehli: Oxford University Press, 1974), 90.
2 By ‘pre-modern’ I mean the time before the first codification of family law in 1875 by Qadri
Pasha in Egypt, which was based on Hanafi law. For reasons of convenience, the expression ‘fam-
ily law and succession’ is used in this chapter.
3 I use the Qurʾan translation of Arthur John Arberry.
4 Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press,
2005), 53–4, 59–64.
5 See also Irene Schneider, Women in the Islamic World: From the Earliest Times to the Arab Spring
(Princeton, NJ: Markus Wiener Publishers, 2014), 22–30.
6 Irene Schneider, Women in the Islamic World, 5–10.
7 Susan Spectorsky has not only compared the broad range of different legal interpretations of the
Qurʾan and Sunnah in the four Sunni schools of law but has also found some substantial differ-
ences in the legal classifications and arguments between the formative and the classical time of
Islamic law. See Susan Spectorsky, Women in Classical Islamic Law: A Survey of the Sources (Leiden:
Brill, 2010).
8 Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 40.
9 Irene Schneider, ‘Islamisches Recht zwischen göttlicher Satzung und temporaler Ordnung?
Überlegungen zum Grenzbereich zwischen Recht und Religion’. In Recht und Religion in Europa:
Zeitgenössische Konflikte und historische Perspektiven, ed. Christine Langenfeld and Irene Schneider
(Göttingen: Universitätsverlag Göttingen, 2008), 142–6.
10 In what follows, references are made to one pre-modern ikhtilāf text written by Ibn Rushd
(d. 1198) and entitled Bidayat al-Mujtahid wa-Nihayat al-Muqtasid. Ibn Rushd, however, takes only
the Sunni schools of law into consideration. He will be quoted below with two page references,
giving first the reference of the Arabic edition and second the reference of the English translation.
11 Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964), 183.
12 According to the Hanafis, women were allowed to be judges in family law matters but the other
schools objected, only the Tabari giving women the right to be a judge in all legal matters. There
seem to have been only a few if any women judges in Muslim history. See Irene Schneider,
‘The Position of Women in the Islamic and Afghan Judiciary’. In The Shariʿa in the Constitutions
of Afghanistan, Iran and Egypt: Implications for Private Law, ed. Nadjma Yassari (Tübingen: Mohr
Siebeck, 2005), 83–101.
13 Takhayyur. See Noel J. Coulson, A History of Islamic Law, 185–96.
14 Basem F. Musallam, Sex and Society in Islam: Birth Control Before the Nineteenth Century (Cambridge:
Cambridge University Press, 1983), 10–11.
16 Ibn Rushd, The Distinguished Jurist’s Primer: A Translation of Bidāyat al-Mujtahid, trans. Imran
Ahzan Khan Nyazee, vol. 2 (Reading, Berkshire: Garnet, 1994–6), 31/36.
17 Ibid., 73/87; Irene Schneider, Women in the Islamic World, 38.
18 Frédéric Lagrange, ‘Sexualities and Queer Studies’. In Encyclopedia of Women and Islamic Cultures,
Edited by Suad Joseph (Leiden: Brill, 2010), 419–22.
19 Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press,
2005), 61.
336
20 Frédéric Lagrange, ‘Sexualities and Queer Studies’, 419–22.

21 Noel J. Coulson, A History of Islamic Law, 111; Shahla Haeri, ‘Divorce in Contemporary Iran:
A Male Prerogative in Self-Will’. In Islamic Family Law, ed. Chibli Mallat and Jane Connors
(L ondon: Graham & Trotman, 1990), 58.
22 Joseph Schacht and Aharon Layish, ‘Mı̄rāth’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman
et al. (Leiden: Brill, 2012), http://dx.doi.org.encyclopaediaofislam.han.sub.uni-goettingen.
de/10.1163/1573-3912_islam_COM_0747 (accessed 24 July 2018); Wilhelm Heffening, ‘Mutʿa’.
In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. (Leiden: Brill, 2012), http://dx.doi.
org.e ncyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_0819
23 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 3/2; Jamal Nasir, The Islamic Law of Personal
Status, 3rd edn (The Hague: Kluwer Law International, 2002), 47.
24 David Pearl and Werner Menski, Muslim Family Law, 3rd edn (London: Sweet & Maxwell,
1998), 140; Joseph Schacht and Aharon Layish, ‘Mı̄rāth’; Asaf A. Fyzee, Outlines of Muhammadan
Law, 89.
25 Because they are of great importance for the Islamic concept of marriage and family those finan-
cial rights and the connected duties are mentioned in a separate paragraph.
26 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 3–8/13–8.
27 Ibn Rushd states that the majority of the jurists agree that marriage is to be subsumed into the
religious category of recommended acts, some even see it as obligatory: Ibn Rushd, The Distin-
guished Jurist’s Primer, vol. 2, 2/1; Shahla Haeri, ‘Divorce in Contemporary Iran’, 57.
28 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 8/8; Noel J. Coulson, A History of Islamic Law,
111.
29 Shahla Haeri, ‘Divorce in Contemporary Iran’, 57.
30 Joseph Schacht, Ghaus Ansari, Jean Boyd, J. Knappert, Aharon Layish, J. M. Otto, S. Pompe and
Ron Shaham, ‘Nikāh ․ ’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. (Leiden: Brill,
2012), http://dx.doi.org.encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_
islam_COM_0863 (accessed 24 July 2018).
31 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 17/19–20.
32 Joseph Schacht, An Introduction to Islamic Law, 161; Susan Spectorsky, Women in Classical Islamic
Law, 157.
33 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 6/6.
34 Ibid.
35 Ibid., 7/7; Joseph Schacht, An Introduction to Islamic Law, 162.
36 David Pearl and Werner Menski, Muslim Family Law, 143–5; Jamal Nasir, The Islamic Law of Per-
sonal Status, 79.
38 Susan Spectorsky, Women in Classical Islamic Law, 164–70.
41 Ibid., 2, 9/9.
42 Ibid., 12/13.
43 Ibid., 13/14–15; Jamal Nasir, The Islamic Law of Personal Status, 53.
44 Susan Spectorsky, Women in Classical Islamic Law, 151.
45 I.e. having reached puberty.
46 Ibn Rushd, The Distinguished Jurist’s Primer, vol. 2, 4–5/3–5; Susan Spectorsky, Women in Classical
Islamic Law, 151).
47 Ibid., 6/5–6.
49 Ibid., 32/37.
50 Ibid.
51 Ibid., 42/49.
52 Jamal Nasir, The Islamic Law of Personal Status, 69; Asaf A. Fyzee, Outlines of Muhammadan Law, 46.
54 Ibid., 55/65.
55 Ibid., 56/66.
56 Ibid., 18–32/20–36.
57 Ibid., 18/20.
337
Irene Schneider
58 Ibid., 18/21.
59 Ibid., 22/25.
60 Ibid., 27/31.
63 Jamal Nasir, The Islamic Law of Personal Status, 95.
64 It is interesting that the jurists use this terminology for a woman whose husband is absent. They
thus seem to recognize her difficult situation but are not, at least not all of them, willing to sup-
port her to be freed.
66 Ibid., 55/64.
68 Qurʾan 31:14.
71 David Pearl and Werner Menski, Muslim Family Law, 400, 408–10.
72 Jamal Nasir, The Islamic Law of Personal Status, 159–61; David Pearl and Werner Menski, Muslim
Family Law, 410–38.
74 Joseph Schacht and Aharon Layish, ‘Nikāh․ ’.
76 Joseph Schacht and Aharon Layish, ‘Nikāh․ ’.
77 Ibid., 63/75.
78 David Pearl and Werner Menski, Muslim Family Law, 281.
79 Joseph Schacht, An Introduction to Islamic Law, 164.
80 Noel J. Coulson, A History of Islamic Law, 112.
81 Joseph Schacht and Aharon Layish, ‘Mı̄rāth’.
82 HREA. The Moroccan Family Code (Moudawana) of February 5, 2004. Global Human Rights Ed-
ucation and Training Centre, http://www.hrea.org/programs/gender-equality-and-womens-
empowerment/moudawana/ (accessed 24 July 2018).
83 See Irene Schneider, ‘Translational Turn and CEDAW: Current Gender Discourses in the Islamic
Republic of Iran’. In Indonesian and German Views on the Islamic Legal Discourse on Gender and Civil
Rights, ed. Fritz Schulze, and Noorhaidi Hasan (Wiesbaden: Harrassowitz Verlag, 2015), 133–65.
88 Ibid., 161.
90 Ibid., 99–104/121–7.
91 Qurʾan 58:1–4.
92 Qurʾan 2:336.
95 Qurʾan 2:229.
97 Qurʾan 4:35.
98 Susan Spectorsky, Women in Classical Islamic Law, 172–8.
100 Qurʾan 24:6–8.
101 Ibid., 50–4/58–63.
104 Ibid., 51–2/60–1.
106 Ibid., 31–2.
107 Joseph Schacht, An Introduction to Islamic Law, 170.
338
108 Noel J. Coulson, A History of Islamic Law, 113–14.

109 Ibid.
110 David Pearl and Werner Menski, Muslim Family Law, 184–5.
112 Azza Karam, Women, Islamism, and the State: Contemporary Feminisms in Egypt (New York:
St M artin’s Press, 1998), 9–14; Irene Schneider, Women in the Islamic World, 173–9.

Coulson, Noel J. A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964).
Fyzee, Asaf A. Outlines of Muhammadan Law, 4th edn (Dehli: Oxford University Press, 1974).
Haeri, Shahla. ‘Divorce in Contemporary Iran: A Male Prerogative in Self-Will’. In Islamic Family Law,
ed. Chibli Mallat and Jane Connors (London: Graham & Trotman, 1990), 55–69.
Heffening, Wilhelm. ‘Mutʿa’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. http://dx.doi.org.
encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_0819 (accessed
24 July 2018).
HREA. The Moroccan Family Code (Moudawana) of February 5, 2004. Global Human Rights E ducation and
Training Centre. http://www.hrea.org/programs/gender-equality-and-womens-empowerment/
moudawana (accessed 24 July 2018).
Ibn Rushd, Abu al-Walid Muhammad b. Ahmad. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid. Ed. ʿAbd
al-Halim Muhammad (Beirut: Dar al-Kutub al-Islamiyya, 1983).
Ibn Rushd, Abu al-Walid Muhammad b. Ahmad. The Distinguished Jurist’s Primer: A Translation of
Bidayat al-Mujtahid, trans. Imran Ahzan Khan Nyazee, 2 vols (Reading, Berkshire: Garnet Pub-
lishing, 1994–6).
Karam, Azza. Women, Islamism, and the State: Contemporary Feminisms in Egypt (New York: St Martin’s
Press, 1998).
Musallam, Basem F. Sex and Society in Islam: Birth Control before the Nineteenth Century (Cambridge:
Nasir, Jamal. The Islamic Law of Personal Status, 3rd edn (The Hague: Kluwer Law International, 2002).
Pearl, David, and Werner Menski. Muslim Family Law, 3rd edn (London: Sweet & Maxwell, 1998).
Peters, Rudolph. Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005).
Schacht, Joseph. An Introduction to Islamic Law (Oxford: Clarendon Press, 1964).
Schacht, Joseph and Aharon Layish. ‘Mı̄rāth’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al.
http://dx.doi.org.encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_
COM_0747 (accessed 24 July 2018).
Schacht, Joseph. ‘T ․ ’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. http://dx.doi.org.
․ alāk
encyclopaediaofislam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_1159 (accessed
24 July 2018).
Schacht, Joseph, Ghaus Ansari, Jean Boyd, J. Knappert, Aharon Layish, J. M. Otto, S. Pompe and
Ron Shaham. ‘Nikāh․ ’. In Encyclopaedia of Islam, 2nd edn, ed. P. Bearman et al. http://dx.doi.
org.e ncyclopaediaof islam.han.sub.uni-goettingen.de/10.1163/1573-3912_islam_COM_0863
Schneider, Irene. ‘The Position of Women in the Islamic and Afghan Judiciary’. In The Shariʿah in the
Constitutions of Afghanistan, Iran and Egypt: Implications for Private Law, ed. Nadjma Yassari (Tübingen:
Mohr Siebeck, 2005), 83–101.
Schneider, Irene. Women in the Islamic World. From the Earliest Times to the Arab Spring (Princeton, NJ:
Markus Wiener Publishers, 2014).
Schneider, Irene. ‘Translational Turn and CEDAW: Current Gender Discourses in the Islamic Repub-
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Spectorsky, Susan. Women in Classical Islamic Law: A Survey of the Sources (Leiden: Brill, 2010).
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20
Islamic law and the q
uestion
of gender equality
Ziba Mir-Hosseini
Introduction
Gender equality is a modern ideal that did not enter Islam’s juristic landscape until the 20th
century, along with the expansion of feminist and human rights discourses. Since then it has
been the subject of an impassioned debate – a debate that is entangled in the history of the
polemics between Islam and the West, and the anti-colonial and nationalist discourses of the
first part of the 20th century. With the rise of political Islam in the second half of the century,
and the Islamist slogan of ‘Return to Shariʿah’, the debate became part of a larger intellectual
and political struggle among the Muslims between two understandings of their religion and
two ways of approaching its sacred texts. One is an absolutist, dogmatic and patriarchal Islam
that makes little concession to contemporary realities, such as the changed status of women
in society. The other is a democratic, pluralist and rights-based Islam that is making room for
these realities and values, including gender equality. In the new century, the politics of the
‘war on terror’ and the invasions of Afghanistan and Iraq – both of them partly justified as
promoting women’s rights – added a new layer of complexity to the political and rhetorical
dimensions of the debate.
In this chapter I outline the conceptions of gender evident in Islamic legal tradi-
tion, summarizing how classical Muslim jurists, in the dominant interpretations of the
Shariʿah, conceived of gender difference and gender relations. I show how 20th-century
developments – notably the rise of Muslim nation-states and changed relations between
Islamic law, state and practice – challenged these traditionalist conceptions of gender, and
led to the debate between two competing contemporary trends, which I have termed neo-
traditionalist and reformist. I then introduce the work of recent reformist and feminist
voices and scholarship in Islam, and the political and hermeneutical challenges they face in
their attempts to bring about an egalitarian construction of gender. Finally, I give the ex-
ample of the work of Musawah, a movement of scholars and activists for justice and equality
in the Muslim family.1
Two themes run through the chapter and link its different sections.
First, ideas about gender, equality and justice have always been socially constructed; they
were shaped and evolved in interaction with ideological, political, socio-economic forces,
340
The question of gender equality
and people’s experiences and expectations. The same goes for interpretations of Islam’s sacred
texts and the legal rulings that the jurists derived from them. There is a dynamic tension
between spiritual-ethical egalitarianism as an essential part of Islam’s message and the patri-
archal context in which this message was unfolded and translated into law. This tension has
enabled both proponents and opponents of gender equality to claim textual legitimacy for
their respective readings and gender ideologies.2
Second, the contemporary quest for gender equality in Islamic law is part of a larger strug-
gle for social justice, which is enmeshed in an intricate dialectic between religion, politics
and practice. The democratization of the production of religious knowledge is an essential
part of this struggle.
1 Gender in Islamic legal tradition

The lively and contentious debate over gender equality and Islamic law, and the vast lit-
erature that it has produced, can be grouped around three competing discourses. The
first, which I term Traditionalist, is premised on gender inequality as prescribed by clas-
sical Muslim jurists, and is still in operation in its unmodified form in only a few Muslim
countries, notably Saudi Arabia. The second discourse is the dominant one, developed
in the early years of the 20th century and reflected in the legal codes of many Muslim
countries. It advocates ‘complementarity’ of rights, often referred to as ‘gender equity’,
which, as we shall see, is a new defence and modification of the classical notion of gender
inequality – hence I term this perspective Neo-Traditionalist. The third discourse, which
I call Reformist-Feminist, emerged in the last decades of the 20th century and is still in
the process of formation; it argues for gender equality on all fronts; while the other two
discourses take a protectionist approach to women’s rights, Reformist-Feminists aim to
democratize the dynamics of gender relations in law and in practice, both in the private
sphere of the family and in society at large.
1.1 Traditionalists: gender inequality

Traditionalists take a literal approach to the texts, and their gender discourse is an ahistor-
ical and simplified version of that of classical fiqh texts.3 These texts take male superiority
for granted, reflecting the world in which their authors lived. Biology is destiny; there is no
overlap between gender roles; a woman is created to bear and rear children as her only con-
tribution to society; her place is at home. Such a notion of women’s roles and duties informs
the ideology and practice of the most conservative Islamist political groups, which take it as
the indisputable interpretation of the Shariʿah. They are today a small minority, but as they
often enjoy substantial financial support from Saudi Arabia they are able to be active in prop-
agating their views in many countries.
The gender discourse in classical fiqh was encapsulated in two sets of legal rulings (ah
․kām):
those that defined the marriage contract and those that regulated women’s dress and access
to public space. In these matters, the various fiqh schools all shared the same inner logic and
patriarchal bias. If they differed, it was in the manner and extent to which their conception
was translated into legal rules. A brief examination of these rulings is in order here, as they
are at the centre of the debate about gender equality and Islamic law.
Here, I must stress, I am only concerned with the ways in which classical jurists under-
stood and defined gender relations;4 whether these rulings corresponded at the time to actual
practices of marriage and women’s covering is, of course, another question, and one that
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Ziba Mir-Hosseini
recent scholarship in Islam has started to answer. What this scholarship warns us is not to
take the classical fiqh texts at face value; in pre-modern times judicial rules and court prac-
tices were quite different, and women had better access to legal justice than has been the case
in more recent times; they frequented courts to negotiate the terms of their marriages and
divorces and were present in public space.5
1.1.1 Marriage in classical fiqh

In classical fiqh, marriage is one of the very acts that cross the boundary between its two
categories of rulings: those pertaining to ʿibādāt (ritual/spiritual acts) and those pertaining
to muʿāmalāt (social/contractual acts). In spirit, marriage belongs to ʿibādāt, in that Muslim
jurists spoke of it as a religious duty ordained by God. In form, it comes under the category
of muʿāmalāt, in that Muslim jurists defined it as a civil contract between a man and a woman
such that any sexual contact outside this contract constitutes the crime of zinā (fornication),
and is subject to punishment. In its legal structure, marriage is a contract of exchange with
defined terms and uniform effects and is patterned after the contract of sale (bayʿ), which has
served as model for other contracts. Its essential components are: the offer (ijāb) by the woman
or her guardian, the acceptance (qubūl) by the man, and the payment of dower (mahr), a sum
of money or any valuable that the husband pays or undertakes to pay to the bride before or
after consummation, according to their mutual agreement.6
With the contract, a woman comes under her husband’s ʿisma/qiwāma (authority, domin-
ion and protection), entailing a set of defined rights and obligations for each party: some with
moral sanction and others with legal force. Those with legal force revolve around the twin
themes of sexual access and compensation, embodied in concepts of tamkı̄n/taʿā (submission)
and nafaqa (maintenance). Tamkı̄n (unhampered sexual access) is a man’s right and thus a
woman’s duty, whereas nafaqa (shelter, food and clothing) is a woman’s right and a man’s duty.
A woman becomes entitled to nafaqa only after consummation of the marriage, and she loses
her claim if she is in a state of nushūz (disobedience).7 The contract establishes neither a shared
matrimonial regime nor identical rights and obligations between spouses: the husband is the
sole provider and owner of the matrimonial resources and the wife is possessor of the mahr
and her own wealth. The only shared space is that involving the procreation of children, and
even here a woman is not legally required to suckle her child and can demand compensation
if she does.
A man can enter more than one marriage at a time: up to four permanent ones in all law
schools, and in Shiʿi law also as many temporary marriages (mutʿa)8 as he desires, or can af-
ford. He can terminate each contract at will: no specific grounds are needed, nor is the wife’s
consent or presence required. Legally speaking, ․talāq, repudiation of the wife, is a unilateral
act (iqāʿ), which acquires legal effect simply by the husband’s declaration. A wife cannot be
released without her husband’s consent, although she can secure her release by offering him
inducements, by means of khulʿ, often referred to as ‘divorce by mutual consent’. As defined
by classical jurists, khulʿ is a separation claimed by the wife as a result of her extreme ‘reluc-
tance’ (karahiya) towards her husband, and the essential element is the payment of compensa-
tion (‘iwad ․) to the husband in return for her release. This can be the return of the dower, or
any other form of compensation. Unlike ․talāq, khulʿ is not a unilateral but a bilateral act, as it
cannot take legal effect without the husband’s consent. If the wife fails to secure his consent,
then her only recourse is the court’s intervention and the judge’s power either to compel the
husband to pronounce ․talāq or to pronounce it on his behalf.
342
1.1.2 Hijab in classical fiqh

Unlike rulings on marriage, classical fiqh texts contain little on the dress code for women.
The prominence of veiling regulations in Islamic discourses is a recent phenomenon, dating
to the 19th-century Muslim encounter with colonial powers. It was then that we see the
emergence of a new genre of literature in which the veil acquires a civilizational dimension
and becomes both a marker of Muslim identity and an element of faith.9
Classical texts – at least those that set out rulings or what we can call ‘positive law’ –
address the issue of dress for both men and women under ‘covering’ (sitr) in the Book of
Prayer, among the rules for covering the body during prayers, and in the Book of Marriage,
among the rules that govern a man’s ‘gaze’ at a woman prior to marriage.10 The rules are
minimal, but clear-cut: during prayer, both men and women must cover their ‘awra, their
pudenda; for men, this is the area between knees and navel, but for women it means all the
body apart from hands, feet and face. A man may not look at the uncovered body of an unre-
lated woman; but a woman may look at an unrelated man. The ban can be removed when a
man wants to contract a marriage and needs to inspect the woman he is marrying. The rules
concerning covering during prayer are discussed under ʿibādāt (ritual/worship acts), while
rules of ‘looking/gaze’ fall under muʿāmalāt (social/contractual acts).
There are also related rules in classical fiqh for segregation (banning any kind of interac-
tion between unrelated men and women) and seclusion (restricting women’s access to public
space). They are based on two juristic constructs: the first is the one that defines all of a wom-
an’s body as ʿawra, pudenda, a zone of shame, which must be covered both during prayers
(before God) and in public (before men); the second defines women’s presence in public as a
source of fitna, chaos, a threat to the social order.
These are, in a nutshell, the classical fiqh rulings on marriage and covering that the Tra-
ditionalists claim to be immutable and divinely ordained. They also claim that these rulings
embody the Shariʿah notion of gender, and thereby invoke them to legitimate male domina-
tion on religious grounds, thus closing the door to any constructive debate.
1.2 Neo-Traditionalists: equity-complementarity
Neo-Traditionalists take a more pragmatic approach; they recognize that a way must be found
of responding to the challenges of the modern world, to changing social and economic con-
ditions. While they recognize that classical fiqh conceptions of gender are untenable, they see
‘gender equality’ as a ‘Western’ and alien concept that must be resisted. Instead, they argue
for ‘gender equity’ or ‘gender complementarity’, which as we shall see, is reflected in the laws
of most Muslim majority countries. The majority of Muslims subscribe to these views, which
are also reflected in the vast literature that emerged in the early 20th century under the rubric
of ‘women’s status in Islam’.
The roots of this gender discourse can be traced to the Muslim encounter with moder-
nity, which coincided with the painful and humiliating encounter with Western colonial
hegemony. In this encounter, ‘women’s status’ and Islamic law became symbols of cultural
authenticity and carriers of religious tradition – a situation that has continued ever since.
The first part of the 20th century saw the expansion of secular education, the rise of modern
nation-states and the creation of new legal systems inspired by Western models. In many
such nation-states, classical fiqh provisions on the family were selectively reformed, codified
and gradually grafted onto unified legal systems. With the exceptions of Turkey, which
abandoned fiqh in all spheres of law and replaced it with Western-inspired codes, and Saudi
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Ziba Mir-Hosseini
Arabia, which preserved classical fiqh as fundamental law and attempted to apply it in all
spheres of law, the large majority of Muslim nations retained and codified fiqh only with
respect to personal status law (family and inheritance). The impetus for, and the extent of,
reform varied from one country to another, but on the whole one can say that with the
exception of the 1956 Tunisian Family Code, which banned polygamy, the classical fiqh rul-
ings were left more or less intact. Reforms were introduced by mixing (talfı̄q) and choosing
(ikhtiyār) principles and rulings from different fiqh schools, and through procedural rules.
They focused on increasing the age of marriage, expanding women’s access to divorce and
restricting men’s right to polygamy. This involved requiring registration of marriage and
divorce, and the creation of new courts to deal with marital disputes.11
The codification of fiqh provisions on family law transformed the interaction between
Islamic legal tradition, the state and judicial practice. Codes and statute books took the place
of classical fiqh manuals in regulating the legal status of women in society; family law was no
longer solely a matter for private scholars operating within a particular fiqh school, rather it
became the concern of the legislative assembly of a particular nation-state. Once it existed in
a codified form and was applied by the machinery of the modern nation-state, ‘Islamic law’
itself came to replace the Muslim scholars, the ʿulama, as the main source of legal authority
and transferred that power to the state.
All this led to the creation of a hybrid family law that was neither classical fiqh nor West-
ern, and a new gender discourse and genre of literature that is neither traditionalist nor
modern. Though commonly subsumed under Modernist Islamic discourse, I suggest that
‘Neo-Traditionalist’ is a better term, because this discourse upholds the classical fiqh rul-
ings while providing a new rationalization for them. Hence the new genre of literature
that emerged in the late 19th century but proliferated in the course of the 20th century.
Largely written by men – at least until mid-century – the stated aims of these authors are to
shed new light on the status of women in Islam and to clarify what they see as ‘misunder-
standings’. They re-read the sacred texts in search of solutions – or more precisely, ‘Islamic’
a lternatives – to contemporary problems such as women’s aspiration for equality.
Despite their variety and diverse cultural origins, what these re-readings have in common
is an oppositional stance and a defensive or apologetic tone. Oppositional, because their con-
cern is to resist the advance of what they see as alien ‘Western’ values and lifestyles; apolo-
getic, because they attempt to explain and justify the gender biases which they inadvertently
reveal, by going back to classical fiqh texts. However, they have problems responding to the
voices of dissent within the Muslim world itself.12
They do not see men’s privileges in marriage, such as polygyny and the unilateral right to
divorce, as discrimination but as an admission of the differences in male and female natures
and sexualities, and between men’s rational and women’s emotional dispositions. They place
their focus on the ethical and moral rules that marriage entails for each spouse, drawing
attention to those Qurʾanic verses and hadith that affirm the essential equality of the sexes;
ignoring the fact that these ethical rules, in effect, carry no legal sanction, they put forward
no argument for translating them into law. As for hijab, they see it as a religious obligation
whose function is to protect women and to safeguard public morality, while they keep silent
on classical fiqh’s construction of women’s body as ʿawra, the sexual zone.
Unwilling to accept that aspirations for gender equality are not just imported from the
West but part of 20th-century reality, they find themselves in a contradictory position. On
the one hand, they uphold fiqh rulings on marriage and gender relations; on the other, they
are aware of and sensitive to current discussions of women’s rights and to criticisms, from both
secular and religious women, of the patriarchal biases in Islamic legal tradition. Education and
344
employment, divorce laws and the question of hijab are the main themes through which they
address issues of women’s rights and define a range of positions. It is common to find a sin-
gle scholar arguing for gender equality on one issue (for example, rights to education and
employment), yet rejecting it on another (for example, divorce). In short, in these texts, the
inequalities embedded in the classical fiqh construction of marriage and gender relations are
defended and rephrased in terms such as ‘equity’ and ‘complementarity of rights and duties’.
With the rise of political Islam in the second part of the 20th century, these Neo-
Traditionalist texts and their gender discourse became closely identified with Islamist po-
litical movements, whose rallying cry was ‘Return to Shariʿah’ as embodied in fiqh rulings.
1.3 Reformist-Feminists: gender equality

A small but increasingly vocal minority, Reformists hold that the best way to defend Islam
in the modern world is by radically re-interpreting the sacred texts, in ways that will be
both faithful to the basic principles of Islam and fully take account of time and place, that
is of changing and varied social conditions. They do not reject an idea simply because it is
Western; they see Islam’s textual sources not as providing a blueprint, an in-built programme
of action for the social, economic and political problems of the Muslim world, but rather
as giving us ethical guidance and principles for the creation of just laws. The more daring
Reformist scholars have offered new interpretations that advocate gender equality; but the
principle of gender equality has not yet been fully translated into the legal code of any Mus-
lim majority country.13
Two parallel developments acted as catalysts for emergence of an egalitarian gender dis-
course. The first was the ways in which the successes of political Islam and the ideological
use of Shariʿah transformed relations between religion, law and politics for Muslims. The
slogan of ‘Return to Shariʿah’ in practice amounted to little more than attempts to translate
into state policy classical fiqh rulings on gender relations and family and some areas of penal
law. In late colonial times and the immediately post-colonial middle decades of the century,
activist women in Muslim contexts had increasingly come to identify Islam with patriarchy,
and to fear that the removal of the latter could not be achieved under a polity and a legal re-
gime dominated by Islam. Towards the end of the century, wherever Islamists gained power
or influence – as in Iran, Pakistan and Sudan – their policies proved the validity of these fears.
Arguing for patriarchal rulings as ‘God’s Law’, as the authentic ‘Islamic’ way of life, Islamists
tried to reverse some of the legal gains that women had acquired earlier in the century; they
dismantled elements of earlier family law reforms and introduced morality laws, such as gen-
der segregation and dress codes.
But these Islamist measures had some unintended consequences; the most important was
that, in several countries, they brought classical fiqh texts out of the closet, and exposed them
to unprecedented critical scrutiny and public debate. A new wave of Muslim reform think-
ers started to respond to the Islamist challenge and to take Islamic legal thought onto new
ground. Building on the earlier reformers, these new thinkers contended that the human
understanding of Islam is flexible, that Islam’s tenets can be interpreted to encourage both
pluralism and democracy, that Islam allows change in the face of time, place and experience.
But instead of searching for an Islamic genealogy for modern concepts like gender equality,
human rights and democracy, they placed the emphasis on how religion is understood and
how religious knowledge is produced.14
The second development was the expansion of transnational feminism and women’s
groups, and the emergence of NGOs, which led to the opening of a new phase in the
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Ziba Mir-Hosseini
politics of gender and Islamic law. Earlier in the century women were largely absent from
the process of reform and codification of family law and the debates that surrounded it. But
by the end of the century, Muslim women were refusing to be merely objects of the law,
but rather claiming the right to speak and to be active participants in the debates and in
the process of law making. The changed status of women in Muslim societies, and other
socio-economic imperatives, meant that many more women than before were educated and
in employment. Women’s rights were by now part of human rights discourse, and human
rights treaties and documents, in particular the Convention on the Elimination of all forms
of Discrimination Against Women (CEDAW), gave women a new language in which to
frame their demands.
These developments opened new spaces for activism and debate. Women were now find-
ing new ways to sustain a critique, from within, of patriarchal readings of Islam’s sacred texts
and the gender biases of fiqh texts. By the early 1990s, there were clear signs of the emergence
of a new consciousness, a new way of thinking, and critical voices and scholarship that argued
for gender equality on all fronts. Some versions of this new discourse came to be labelled
‘Islamic feminism’ – a conjunction that was unsettling to many Islamists and some feminists.
Taking Islam as the source of its legitimacy, Islamic feminists began to question both the
hegemony of patriarchal interpretations of the Shariʿah and the authority of those who speak
in the name of Islam. Their voices started to draw attention from media and academia, via
publications, public meetings and workshops that provided a platform for scholar-activists.
The genesis of gender inequality in Muslim legal tradition, these scholars showed, lies in
a contradiction between the ideals of Islam on the one hand, and on the other, the male-
dominated structures in which these ideals unfolded and were translated into legal norms.
They have produced an impressive body of scholarship to tackle patriarchal interpretations
and text-based sources of gender inequalities and to reclaim Islam’s egalitarian message.15
This literature is extensive and diverse in approach;16 here I can merely outline the argument
as to how and why male dominance came to be embedded in Muslim legal tradition. This
was done through two sets of related processes. The first set is ideological and political, and
has to do with the strong patriarchal ethos that informed readings of the sacred texts, the
exclusion of women from the production of religious knowledge, and their consequent in-
ability to have their voices heard and their interests reflected in law.
The second set is more epistemological, and involves the processes through which existing
social norms, marriage practices and gender ideologies were sanctified, and then turned into
fixed entities and legal concepts. That is, rather than considering them as social, thus tem-
poral, institutions and phenomena, they were treated as ‘divinely ordained’, thus immutable.
There is an extensive debate in the literature on this, which I will not enter.17 But there
are two points of consensus. The first is that the revelatory texts outlawed only some of the
existing patriarchal practices of the time (such as burying infant girls alive and coercing
women into unwanted marriages) and left others intact (such as polygamy and men’s right to
unilateral divorce). As with slavery, the institution of patriarchy was not abolished; what the
Qurʾan and the Prophet did was to set in motion a process to transform them in the direction
of justice, and to rectify injustices as they were understood at the time. The second consensus
is that the further we move from the time of revelation, the more women are marginalized;
their voices are silenced and their presence in public space is curtailed and eventually they
lose their political clout. Women had been among the main transmitters of the hadith tradi-
tions, but by the time the fiqh schools were consolidated, over a century after the Prophet’s
death, their critical faculties were so far denigrated as to make their concerns irrelevant to
law-making processes.18 As for hijab, in contrast to Neo-Traditionalists, they do not see it as
346
an obligation but as a right, and defend a woman’s choice whether to adopt it or not. They
have shifted the whole premise of hijab, not only the rationale for it.
In short, by re-reading textual sources and recovering a hidden history, Muslim feminist
scholars are not only reclaiming the egalitarian message of their faith, but also inserting
women’s voices in the production of religious knowledge and the process of law making. To
give a concrete example of how they do this, I briefly discuss Musawah and its first major
research initiative.
2 Musawah: scholarship and activism

Musawah as a global movement for equality and justice in the Muslim family was initiated
in 2007 by the pioneering Malaysian women’s group, Sisters in Islam, and launched in Kuala
Lumpur in February 2009. Inspired by the activism of Moroccan women, and their success
in bringing radical reforms in Moroccan family law in 2004, we (I was one of the founders)
adopted their slogan, ‘Change is necessary and change is possible’.19 We sought to link re-
search with activism, to develop a holistic framework integrating Islamic teachings, universal
human rights law, national constitutional guarantees of equality and the lived realities of
women and men.
We commissioned a number of concept papers by reformist thinkers, such as Khaled Abou
El Fadl, Muhammad Khalid Masud and Amina Wadud, as a way of opening new horizons for
thinking, to show how the wealth of resources within Islamic tradition, and in the Qurʾanic
verses on justice, compassion and equality, can support the promotion of human rights and
a process of reform toward more egalitarian family relations. These papers were published as
the book Wanted: Equality and Justice in the Muslim Family;20 we made them available in En-
glish, French and Arabic and used them as the basis for a wider discussion with a larger group
of Muslim scholars and human rights and women’s rights activists. This discussion, including
two further workshops in Cairo and London, followed by constant electronic communica-
tion among the members of the committee, led to the Musawah Framework for Action.21
Drawing on the latest Muslim reformist thought and feminist scholarship in Islam, in
Framework for Action we ground our claim to equality and arguments for reform simultane-
ously in Islamic and human rights frameworks. Taking a critical feminist perspective, but
most importantly working within the tradition of Islamic legal thought, we invoke two of its
main distinctions. The first distinction, which underlies the emergence of the various schools
of Islamic law and within them a multiplicity of positions and opinions, is between Shariʿah
and fiqh. Shariʿah (‘the way’) in Muslim belief is God’s will as revealed to the Prophet Mu-
hammad. Fiqh (‘understanding’) is Islamic jurisprudence, the process and the methodology
for discerning the Shariʿah and extracting legal rules from the sacred sources of Islam: the
Qurʾan and the Sunnah (the practice of the Prophet, as contained in ahadith, traditions). Like
any other system of jurisprudence, fiqh is mundane, temporal and local.
The second distinction, referred to earlier, is that between the two main categories of legal
․kām): ʿibādāt (ritual/spiritual acts) and muʿāmalāt (social/contractual acts). Rulings
rulings (ah
in the first category, ʿibādāt, regulate relations between God and the believer, where jurists
contend there is limited scope for rationalization, explanation and change, since they pertain
to the spiritual realm and divine mysteries. This is not the case with muʿāmalāt, which reg-
ulate relations among humans and remain open to rational considerations and social forces,
and to which most rulings concerning women and gender relations belong.
These distinctions give us the language, the conceptual tools, to argue for gender equality
from within Muslim legal tradition. Our main objective is to re-insert women’s concerns
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Ziba Mir-Hosseini
and voices, which were silenced by the time that the fiqh schools emerged, into the processes
of the production of religious knowledge and law making. In this sense what we are doing is
part of the larger struggle for the democratization of production of knowledge in Islam, and
for the authority to interpret its sacred texts. Two questions are at the centre of our work: If
justice and equality are values central to Islam, as we believe they are, why have women been
treated as inferior to men in Muslim legal tradition and in Muslim societies? And if equality
has become inherent to conceptions of justice in modern times, as many Muslims now rec-
ognize, how can it be reflected in Muslim laws?
In 2010, Musawah initiated a multi-faceted project to rethink two central concepts that
we argue lie at the basis of the unequal construction of gender rights in Muslim family laws.
These are qiwāma and wilāya, which, as understood and translated into legal rulings by Mus-
lim scholars, place women under male control. Qiwāma denotes a husband’s authority over
his wife; wilāya denotes the right and duty of male family members to exercise guardianship
over female members (e.g. fathers over daughters when entering into marriage contracts).
These two concepts underlie the logic of most contemporary Muslim family laws and are
manifested in legal provisions that regulate spousal and parental duties and rights.22
The project has two interconnected elements. The first is the production of new femi-
nist knowledge that critically engages with these concepts and redefines them in line with
contemporary notions of justice. The second element of the project involves documenting
the life stories of Muslim women and men in different countries with the aim of revealing
how they experience, understand and contest these two legal concepts in their lived realities.
For the first element, we invited scholars from different disciplines to write background
papers that expound and interrogate the construction of qiwāma and wilāya, their associated
religious and legal doctrines, and their place and working in contemporary laws and practices.
Then, in the course of several intensive workshops we discussed these background papers and
shared their insights with our advocates and those involved in the life stories element.
This, of course, took us to Qurʾan 4:34, which constitutes the main textual evidence in
support of men’s authority over women, and is often the only verse that ordinary Muslims
know in relation to gender relations and family law. It reads:
Men are qawwāmun (protectors/maintainers) in relation to women, according to what

God has favoured some over others and according to what they spend from their wealth.
Righteous women are qanitāt (obedient) guarding the unseen according to what God
has guarded. Those [women] whose nushūz (rebellion) you fear, admonish them, and
abandon them in bed, and ad․ribuhunna (strike them). If they obey you, do not pursue a
strategy against them. Indeed, God is Exalted, Great.
This verse has been the focus of intense contestation and debate among Muslims for over a
century. There is now a substantial body of literature that attempts to contest and reconstruct
the meanings and connotations of the four Arabic terms above (italicized). Kecia Ali, from
whom I have taken the translation of the verse, leaves the emphasized words untranslated,
pointing out that any translation of each of these key terms amounts to an interpretation. 23 I
have inserted translations that approximate the consensus of classical Muslim jurists and are
reflected in a set of rulings (ah․kām) that they devised to define marriage and marital relations.
These rulings rest on a single postulate: that God placed women under male authority. For
these jurists, men’s superiority and authority over women was a given, legally inviolable; it
was in accordance with a conception of justice that accepted slavery and patriarchy, as long
as slaves and women were treated fairly. They naturally understood the verse in this light;
348
they used the four key terms in the verse to define relations between spouses, and notions of
justice and equity.
This is what in our project we refer to as the qiwāma postulate – using ‘postulate’ in the
sense defined by Japanese legal scholar Masaji Chiba: ‘A value system that simply exists in its
own right’.24 It operates in all areas of Muslim law relating to gender rights, but its impact
is most evident in the laws that classical jurists devised for the regulation of marriage and
divorce. As outlined earlier, they defined marriage as a contract that automatically places a
wife under her husband’s qiwāma (authority) and presumes an exchange: the wife’s obedience
and submission (tamkin) in return for maintenance (nafaqah) by the husband.
Yet the term qawwāmūn, from which the jurists derived the concept of qiwāma, only ap-
pears once in the Qurʾan in reference to marital relations.25 The closely related term wilāya
does occur in the Qurʾan, but never in a sense that specifically endorses men’s guardianship
over women, which is the interpretation of the term that is enshrined in classical fiqh.26 Many
other verses speak of the essential equality of men and women in the eyes of God and the
world. In relation to marriage, two other terms appear numerous times: maʿrūf (that which is
commonly known to be right) and rah․ma wa mawadda (compassion and love).
One of the main objectives of the project is to bring the insights from feminist theory and
gender studies into conversation with Islamic legal tradition, and to ask new questions: Why
and how did verse 4:34, and not other relevant Qurʾanic verses, become the foundation for
the legal construction of marriage? What does male guardianship, as translated in the con-
cepts qiwāma and wilāya, entail in practice?
How can we rethink and reconstruct them in line with contemporary notions of justice
and maʿrūf of our time? What do equality and justice entail in family and society? Do they
entail identical rights and duties for spouses?
These questions are central to the ongoing struggle for equality and justice in Muslim
families, and our project seeks to clarify them and suggest some answers. The first product
of our research is a collected volume: Men in Charge? Rethinking Authority in Muslim Legal
Tradition.27 Its main thesis is that the concepts of qiwāma and wilāya have mistakenly been un-
derstood as a divine sanction for men’s authority over women, with the result that they have
become the building blocks of patriarchy within Muslim legal tradition.
3 Justice and equality: changing and contested concepts

One of the central challenges that Muslim women face in their struggle for equality is how to
address in a meaningful and coherent way the wide gap that exists between modern notions
of justice, to which equality is inherent, and the notions of justice that underpin established
understandings of the Shariʿah. It is here that the insight of feminist legal theory is important,
not least in clarifying the different understanding of ‘equality’.
While the Neo-Traditionalists admit the gender equality in the spiritual cosmology (cre-
ation and afterlife), when it comes to the social realm, they basically adhere to the classical
fiqh model of gender relations according to which women, because of their ‘nature’, are in
need of protection. Their main argument goes as follows: equality amounts to a denial of the
differences between men and women, and to give them equal rights would be against not
only the laws of nature but also the requirements of justice.
Such a notion of justice, reflecting the Aristotelian idea of proportional equality, was
profoundly challenged during the 20th century by the expansion of the human rights frame-
work. An egalitarian understanding of social justice requires us to go beyond the binary of
equality versus difference, to see them not as opposites but as interdependent. As feminist
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Ziba Mir-Hosseini
scholarship made evident, creating a binary opposition between the two creates a false choice
when it comes to gender relations: ‘between endorsing either “equality” or its presumed an-
tithesis, “difference”’. Equality is not the elimination of difference, and difference does not
preclude equality.28 We need equality as a principle of justice in society, in law, for regulating
human relations, including gender relations, precisely because all humans are different in
their capacities, access to resources, etc.
This way of thinking about equality and difference is reflected in the shift from ‘formal’
to ‘substantive’ models, which take into account differences between the sexes and the direct
and indirect discrimination that such differences can produce.29 A formal model of equal-
ity, which advocates gender-neutral laws, does not necessarily enable women to enjoy their
rights on the same basis as men. This is because it rests on a false premise: that the starting
point and the playing field are the same for men and women. Not only do women not have
the same access as men to socio-economic resources and political opportunities, but women
are not a homogeneous group; they do not experience legal inequality and discrimination in
the same ways; class, age, ethnicity, socio-economic situation are all important factors in the
ways in which women have been disadvantaged.
A substantive approach to equality, by contrast, takes these factors into account. Instead of
striving for gender-neutral laws, the emphasis is on the kinds of laws and legal reforms that
can ensure equality of opportunity and result; that regulate power relations between men
and women in such a way that women are able to enjoy dignity, security and respect in the
family, and full participation in society.
It is this substantive model of equality that is advocated by members of Musawah and
many other Islamic feminists, who, while not denying differences between men and women,
yet strive for just outcomes. Inspired by the Qurʾanic vision of justice and gender relations,
they contend, equality can only be achieved with laws that transform power relations in the
family and in society in the direction of just outcomes. A protectionist approach, on the other
hand, by keeping power relations in marriage and society intact, in effect leads to injustice.
This is so because it not only perpetuates gender stereotypes, but more importantly it curtails
women’s freedom and the sphere of their activities, with the rationale of ‘protecting’ them
from harm and wrongdoing. In doing so, it treats them as perpetual minors, which under-
mines their human dignity (karamāt) and prevents them from fulfilling their potential in both
spiritual and social realms.
Conclusion
The egalitarian position on women’s rights and roles, coming from within an Islamic frame-
work, has yet to make its impact by rectifying the inequalities inherent in orthodox in-
terpretations of Shariʿah, and by eliminating social and cultural practices that oppress and
discriminate against women in Muslim societies. Both the egalitarian position and the re-
formist movement of which it is a part are still in a formative phase, and their fortunes are
tied to political developments, both global and local.
I end with two observations. First, the very existence of the debate, and the growing lit-
erature on ‘women in Islam’ that has emerged since the early years of the 20th century, are
signs of the passing of an era. Available in a variety of languages (and much of it now on the
internet) and ranging from sound scholarship to outright polemics, this literature displays
different positions and different gender perspectives, from those who endorse the classical
fiqh rules, to those who seek their modification in the idea of ‘complementarity of rights’, to
those who advocate gender equality on all fronts. Irrespective of their position and gender
350
perspective, all contributors to this literature agree that ‘Islam honours women’s rights’, and
that justice and fairness are integral to the Shariʿah; they disagree on what these rights are,
what constitutes justice for women, and how to realize it within an Islamic framework. The
intensity of the debate, and the diametrically opposed positions taken, are indications of a
paradigm shift in thinking about gender rights, Islamic law and politics. We become aware
of the old paradigm only when the shift has already taken place, when the old rationale and
logic, previously undisputed, lose their power to convince and cannot be defended on ethical
grounds. Feminist voices and scholarship in Islam herald the coming of an egalitarian legal
paradigm that is still in the making.
Second, legal systems and theories are embedded in the cultural, political and social con-
texts in which they exist and operate. The old fiqh paradigm, with its strong patriarchal ethos,
as well as the new feminist readings of the Shariʿah, should be understood in this complex
double image, as both expressing and shaping socio-legal norms and practices. It is important
to remember that legal theory or jurisprudence develops in interaction with social practices,
political, economic and ideological forces and people’s experience and expectations. In other
words, most often law follows or reflects practice; that is to say, when social reality changes,
then social practice will effect a change in the law. Islamic legal tradition is no exception – as
attested by the way both legal systems and women’s lives and social experiences have been
transformed in the course of the last century, and in the new one by the feminist challenge
from within to patriarchal interpretations of the Shariʿah.
Notes
1 This chapter draws on and expands my arguments in Ziba Mir-Hosseini, ‘The Construction of
Gender in Islamic Legal Thought and Strategies for Reform’, Hawwa 1(1) (2003): 1–28; ‘Towards
Gender Equality: Muslim Family Law and the Shariʿa’, in Wanted: Equality and Justice in Muslim
Family Law, ed. Zainah Anwar (Kuala Lumpur: Sisters in Islam, 2009), http://www.musawah.org/
sites/default/files/Wanted-ZMH-EN.pdf. My warmest gratitude goes to Richard Tapper for his
support in the process of writing.
2 Such a tension is present in other scriptural religions, as revealed by feminist scholarship. See, for
example, Rosemary Radford Ruether, Sexism and God-Talk: Toward a Feminist Theology¸ 2nd edn
(Boston, MA: Beacon Press, 1993) for Christianity; and Susannah Herschel (ed.), On Being a Jewish
Feminist: A Reader, 2nd edn (New York: Schocken Books, 2005) for Judaism.
3 By classical fiqh texts I intend those produced before the late 19th century.
4 For such a discussion, see Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, MA: Harvard
University Press, 2010) and Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society
(Cambridge: Cambridge University Press, 2005).
5 See, for instance, Amira El Azhary Sonbol (ed.), Women, Family and Divorce Laws in Islamic History
(Syracuse, NY: Syracuse University Press, 1996); Judith Tucker, In the House of Law: Gender and
Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 2000); Kristen
Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford:
6 For a concise discussion of the terms of the marriage contract in classical fiqh texts, see Kecia Ali,
‘Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines’, in The Islamic Marriage Con-
tract: Case Studies in Islamic Family Law, ed. Asifa Quraishi and Frank E. Vogel (Cambridge, MA:
Harvard University Press, 2008), 11–45.
7 Nushuz literally means ‘rebellion’ and it implies the abandonment of marital duties. Despite the fact
that fiqh sources acknowledged that such abandonment can take place on the part of both spouses,
they use the term nāshiza (rebellious) only in the feminine form and in relation to maintenance
rights; see Kecia Ali, ‘Religious Practices: Obedience and Disobedience in Islamic Discourses’, in
Encyclopedia of Women and Islamic Cultures, vol. 5, ed. Suad Joseph (Leiden: Brill, 2007), 309–13.
8 For this form of marriage, see Shahla Haeri, Law of Desire: Temporary Marriage in Iran (London:
I. B. Tauris, 1989).
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Ziba Mir-Hosseini
9 Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, CT: Yale
University Press, 1992), 144–68.
10 Many terms commonly used today in different countries for ‘the veil’, such as hijab, parda (‘purdah’),
chador, burqa, are not found in classical fiqh texts.
11 For codification, see James Norman Anderson, Law Reforms in the Muslim World (London: Athlone,
1976); for reforms, see Fazlur Rahman, ‘A Survey of Modernization of Muslim Family Law’, Inter-
national Journal of Middle East Studies 11 (1980): 451–65.
12 For a discussion of such writings in the Arab world, see Yvonne Yazbeck Haddad, ‘Islam and Gen-
der: Dilemmas in the Changing Arab World’, in Islam, Gender and Social Change, ed. Yvonne Yaz-
beck Haddad and John Esposito (Oxford: Oxford University Press,1998), 3–29; Barbara Stowasser,
‘Women’s Issues in Modern Islamic Thought’, in Arab Women: Old Boundaries, New Frontiers, ed.
Judith E. Tucker (Bloomington: Indiana University Press, 1993), 3–28. For Iran, see Ziba Mir-
Hosseini, ‘Women’s Rights and Clerical Discourses: The Legacy of ʿAllameh Tabatabaʾi’, in Intel-
lectual Trends in Twentieth-Century Iran, ed. Negin Nabavi (Gainesville: University Press of Florida,
2003), 193–217. For a sample of texts in English, see Maulana Abul Aʿla Maududi, The Laws of
Marriage and Divorce in Islam (Kuwait: Islamic Book Publishers, 1983); Murtaza Mutahhari, The
Rights of Women in Islam, 4th edn (Tehran: World Organization for Islamic Services, 1991). For
general critique, see Kecia Ali, ‘Progressive Muslims and Islamic Jurisprudence: The Necessity for
Critical Engagement with Marriage and Divorce Law’, in Progressive Muslims: On Justice, Gender,
and Pluralism, ed. Omid Safi (Oxford: Oneworld, 2003), 163–89; Adis Duderija, Constructing a
Religiously Ideal ‘Believer’ and ‘Woman’ in Islam: Neo-traditional Salafi and Progressive Muslims’ Methods
of Interpretation (New York: Palgrave, 2011); Ziba Mir-Hosseini, ‘Sexuality and Inequality: The
Marriage Contract and Muslim Legal Tradition’, in Sexuality in Muslim Contexts: Restrictions and
Resistance, ed. Anissa Helie and Homa Hoodfar (London: Zed Press, 2012), 124–48.
13 The 1956 Tunisian and the 2004 Moroccan family codes come close.
14 In this respect, the work of thinkers such as Khaled Abou El Fadl, Nasr Hamid Abu-Zayd, Moham-
mad Arkoun, Mohammad Iqbal, Mohammad Khalid Masud, Mohammad Mojtahed-Shabestari, Fa-
zlur Rahman, Tariq Ramadan, Abdolkarim Soroush and Amina Wadud are of immense importance
and relevance. For introductions and samples of the work of Muslim reform thinkers, see Charles
Kurzman (ed.), Liberal Islam: A Sourcebook (Oxford: Oxford University Press, 1998) and Katajun
Amirpur, New Thinking in Islam: The Jihad for Freedom, Democracy and Women’s Rights ( London:
Gingko Library, 2015); for a critical historical analysis, see Nasr Hamid Abu-Zayd, Reformation of
Islamic Thought: A Critical Historical Analysis (Amsterdam: Amsterdam University Press, 2006).
15 See, for instance, Aziza Al-Hibri, ‘A Study of Islamic Herstory: How did We Get into this Mess’,
in Islam and Women, Special issue of Women’s Studies International Forum 5(2) (1982): 207–19; Riffat
Hassan, ‘Equal before Allah? Woman–man Equality in the Islamic Tradition’, Harvard Divinity Bulle-
tin 7(2) ( Jan–May 1987), http://www.globalwebpost.com/farooqm/study_res/islam/gender/equal_
riffat.html (accessed 1 January 2014); Fatima Mernissi, Women and Islam: An Historical and Theological
Enquiry, trans. Mary Jo Lakeland (Oxford: Blackwell, 1991); Amina Wadud, Qurʾan and Woman:
Rereading the Sacred Text from a Woman’s Perspective (New York: Oxford University Press, 1999);
Kecia Ali, ‘Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engage-
ment with Marriage and Divorce Law’, in Progressive Muslims, ed. Omid Safi (Oxford: Oneworld,
2003), 163–89; Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of the Qurʾan
(Austin: University of Texas Press, 2002); Saʿdiyya Shaikh, ‘Knowledge, Women, and Gender in
Hadith: A Feminist Interpretation’, Islam and Christian-Muslim Relations 15(1) (2004): 99–108.
16 For recent assessments of this literature, see Omaima Abou-Bakr (ed.), Feminist and Islamic Perspec-
tives: New Horizons of Knowledge and Reform (Cairo: Women and Memory Forum with the Danish–
Egyptian Dialogue Institute and the Danish Center for Research on Women and Gender, 2013);
Fatima Seedat, ‘When Islam and Feminism Converge’, The Muslim World 103(3) (2013): 404–20;
Marcia Hermansen, ‘New Voices of Women Theologians’, in Muslima Theology: Voices of Muslim
Women Theologians, ed. Ednan Aslan, Elif Medeni and Marcia Hermansen (Frankfurt-am-Main:
Peter Lang, 2013), 11–34; Adis Duderija, ‘Toward a Scriptural Hermeneutics of Islamic Feminism’,
Journal of Feminist Studies in Religion 31(2) (2015): 45–64.
17 Some argue that the advent of Islam weakened the patriarchal structures of Arabian society, oth-
ers that it reinforced them. The latter also maintain that, before the advent of Islam, society was
undergoing a transition from matrilineal to patrilineal descent, that Islam facilitated this by giving
patriarchy the seal of approval, and that the Qurʾanic injunctions on marriage, divorce, inheritance
352
and whatever relates to women both reflect and affirm such a transition. For concise accounts of
the debate, see Jane Smith, ‘Women, Religion and Change in Early Islam’, in Women, Religion and
Social Change, ed. Yvonne Yazbeck Haddad and Ellison Banks Findly (Albany, NY: SUNY Press,
1985), 19–35; Denise Spellberg, ‘Political Action and Public Example: ʿAʾisha and the Battle of the
Camel’, in Women in Middle Eastern History: Shifting Boundaries in Sex and Gender, ed. Beth Baron
and Nikki Keddie (New Haven, CT: Yale University Press, 1991), 45–57.
18 Women remained active in transmitting religious knowledge, but their activities were limited to
the informal arena of homes and mosques and their status as jurists was not officially recognized,
as Abou-Bakr, ‘Feminist and Islamic Perspectives’, and Asma Sayeed, Women and the Transmission of
Religious Knowledge in Islam (Cambridge: Cambridge University Press, 2013) show.
19 Collectif 95 Maghreb-Egalité, Guide to Equality in the Family in the Maghreb. Women’s Learning
Partnership for Rights, Development and Peace, 2005, http://learningpartnership.org/guide-to-
equality (accessed 24 July 2018).
20 Zainah Anwar (ed.), Wanted: Equality and Justice in the Muslim Family (Kuala Lumpur: Sisters in
Islam, 2009).
21 See Framework for Action, available in five languages, http://www.musawah.org/about-musawah/
framework-action (accessed 24 July 2018).
22 The project built on an earlier one, ‘New Directions in Islamic Thought’, hosted by the Oslo
Coalition for Freedom of Religion or Belief, in which some of us were involved. See Ziba Mir-
Hosseini, Kari Vogt, Lena Larsen and Christian Moe (eds), Gender Equality in Muslim Family Law:
Justice and Ethics in the Islamic Legal Tradition (London: I. B. Tauris, 2013).
23 Kecia Ali, ‘Muslim Sexual Ethics: Understanding a Difficult Verse, Qurʾan 4:34’, http://www.
brandeis.edu/projects/fse/muslim/mus-essays/mus-ess-diffverse.html (accessed 1 January 2014).
24 Masaji Chiba (ed.), Asian Indigenous Law in Interaction with Received Law (London and New York:
Kegan Paul International, 1986).
25 Qawwamun appears in two other verses (4:135 and 5:8), where it has a very different, positive and
gender-inclusive meaning. See Asma Lamrabet, ‘An Egalitarian Reading of the Concepts of Khal-
ifah, Wilayah and Qiwamah’, in Men in Charge? Rethinking Authority in Muslim Legal Tradition, ed.
Ziba Mir-Hosseini, Mulki Al-Sharmani and Jana Rumminger (London: Oneworld, 2015), 65–87.
26 Wilāya appears in Verse 18:44, where it refers to God’s protection of humans. However, words de-
rived from it, such as wali, appear in many verses as an attribute of God or to describe human beings
in particular contexts and stories in the Qurʾan. More importantly, none of the verses on which the
jurists based the doctrine of wilāya in regard to marriage guardianship (2:221, 2:232, 2:234, 2:237,
4:2, 4:3, 4:6, 4:25, 24:32, 60:10, 65:4) use the term wali or wilāya; see Mohammad Khalid Masud,
‘Gender Equality and the Doctrine of Wilaya’, in Mir-Hosseini et al. (eds), Gender Equality in Mus-
lim Family Law, 132–3.
27 Mir-Hosseini et al. (eds), Men in Charge?
28 Joan Scott, ‘Deconstructing Equality-versus-Difference: OR, the Uses of Poststructuralist Theory
for Feminism’, Feminist Studies 14(1) (1998): 33–50.
29 For instance, Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to
Provide’, South African Journal of Human Rights 21 (2005): 163–90; Ratna Kapur, ‘Unveiling Equal-
ity: Disciplining the ‘Other’ Woman Through the Human Rights Discourse’, in Islamic Law and
International Human Rights Law, ed. Anver M. Emon, Mark S. Ellis and Benjamin Glahn (Oxford:
Oxford University Press, 2012), 265–90.

Abou-Bakr, Omaima (ed.). Feminist and Islamic Perspectives: New Horizons of Knowledge and Reform
(Cairo: Women and Memory Forum with the Danish–Egyptian Dialogue Institute and the Danish
Center for Research on Women and Gender, 2013).
Abou El Fadl, Khaled. Speaking in God’s Name: Islamic Law, Authority and Women (Oxford: Oneworld,
2001).
Al-Hibri, Aziza. ‘A Study of Islamic Herstory: How Did We Get into this Mess’. In Islam and Women,
Special issue of Women’s Studies International Forum 5(2) (1982): 207–19.
Ali, Kecia. Sexual Ethics and Islam: Feminist Reflections on Quran, Hadith and Jurisprudence (Oxford:
Oneworld, rev. edn, 2016).
353
Ziba Mir-Hosseini
Barlas, Asma. Believing Women in Islam: Unreading Patriarchal Interpretations of the Qurʾan (Austin: Uni-
versity of Texas Press, 2002).
Mir-Hosseini, Ziba. ‘The Construction of Gender in Islamic Legal Thought: Strategies for Reform’.
Hawwa: Journal of Women in the Middle East and the Islamic World 1(1) (2003): 1–28.
Mir-Hosseini, Ziba, Lena Larsen, Christian Moe and Kari Vogt (eds). Gender and Equality in Muslim
Family Law: Justice and Ethics in the Islamic Legal Tradition (London: I. B. Tauris. 2013).
Mir-Hosseini, Ziba, Mulki al-Sharmani and Jana Rumminger (eds). Men in Charge? Rethinking Author-
ity in Muslim Legal Tradition (London: Oneworld, 2015).
Shaikh, Saʿdiyya. ‘In Search of “Al-Insan”: Sufism, Islamic Law and Gender’. Journal of the American
Academy of Religion 77(4) (2009): 781–822.
Wadud, Amina. Qurʾan and Woman: Rereading the Sacred Text from a Woman’s Perspective (New York:
354
Part IV
State and power
21
Islamic law and the state in
pre-modern Sunni thought
Ovamir Anjum
Introduction
Islam began with a political triumph. The conquests of its first generation bequeathed it an
empire of its own. As the conquest state fragmented, the Islamic society that it had created
survived. One defining feature of that society, or more precisely, that network of kingdoms
and cities that ultimately came to span a vast expanse from West Africa to Southeast Asia,
was Islamic law. Kingdoms, empires and ethnic and tribal groups that manned them rose and
fell. With the exception of the founding state of the Prophet at Medina, the law preceded
the ruling regimes both temporally and logically. Whereas this double priority of law over
the rulers is hardly disputable since after the third/ninth century (the watershed moment
that symbolized the triumph of the Sunni ʿulama was the mihna of Ahmad b. Hanbal), the
history of the formative period up to that point is less established. This formative period
had witnessed the gradual consolidation of the law and a distinctive elite, the fuqahāʾ (sing.
faqı̄h), associated with it, and the role of the state versus private juristic circles and schools.
Apart from the tendency of all origins to be shrouded in the paucity of sources, the rapid and
continuous revolutions of modernity as well as the ideologies and powers of orientalism have
created knotty conceptual problems for Islamic history that more recent scholarship must, if
ever imperfectly, strive to resolve.
1 Key concepts
1.1 Umma, ulū al-amr, siyāsa

A common starting point to discuss the notion of ‘Islamic state’, or, more precisely, ‘Islamic
governance’ in the pre-modern period is the assertion that Islamic sources say precious little
about norms of governance and the state. It has been suggested that concepts in the Qurʾan
are only ‘quasi-political’. This perception of a lacuna may simply be a result of the concep-
tual imperialism of the modern nation-state on our reception of the Islamic past. In fact, if
by ‘political’ is meant the concern for, management and redistribution of resources within
a well-defined community, the Qurʾan, not to mention hadith literature, is replete with
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Ovamir Anjum
political concepts, including even those that are distinctive to Islam, such as rejection initially
of honorifics commonly used to refer to kings for centuries in the Near East, such as malik
or sult․ān, and the unprecedented use instead of amı̄r and khalı̄fa.1 More importantly, the
notion of a community (umma), well defined by the end of the Medinan period, complete
with imperatives and measures for the ongoing coherence and unity of the community, with
intra-communal rights (e.g. Sura 49) defined distinctly from those pertaining to the outsiders
(e.g. Sura 5). This self-understanding is reflected in the so-called ‘Constitution of Medina’,
whose import is aptly summed up in Michael Lecker’s meticulous book-length study of the
document, which concludes:
The Kitāb is a unified document rather than a series of documents. It is made of two
clearly defined parts, one including the treaty of the Muʾminūn, or the Muhajirūn and
the Ans․ār, and another including a non-belligerency treaty with the Jews. The Arabs
of Medina who were still idol worshippers were not part of it, and the same is true of
the majority of the Jews of Medina, including the main Jewish tribes Nad․ ı̄r, Qurayz․a
and Qaynuqāʿ … The tribal system remained in place; as long as there were tribes there
were also agreements, formal and informal, guaranteeing common responsibility and
cooperation between their members.2
In sum, the overall teachings of the Qurʾan contextualized against the backdrop of the
Prophet’s mission construct the umma as a ‘super-tribe’3 and tacitly approve the prevailing
Arab custom with significant and gradual modifications, and as such, a ‘state’ of sorts is con-
structed, as normative in its import as any other legal institution in the Qurʾan. By the end
of the Medinan period, the prevailing tribal system was supplanted by a mitigated form of
clan-based but centrally governed society which tolerated a large measure of flexibility and
self-government (but not, strictly speaking, autonomy, as norms eventually were all based
in the logic of the divine authority). It is evident in the Qurʾanic imperatives pertaining to
criminal (2:178, 5:38; 17:33), commercial (e.g. verses prohibiting usury), marital, testamen-
tary and inheritance laws (Sura 4). This was a ‘system’ inasmuch as its various parts cohered
with and complemented each other, and worked toward to the singular goal of the realization
of ‘the best community raised for humankind’ (3:110).
Perhaps the most important, and certainly most discussed, among the Qurʾanic politi-
cal imperatives was the authority of the ulū al-amr – those in possession of amr (4:59, 4:83).
The political upheavals of the first century seem to have led to a gradual depoliticization of
Qurʾanic interpretation. The exegetical history of verse 4:59 that commands obeying ‘those
in authority from among you’ is revealing in this regard. According to reports in the exegesis
of al-Tabari attributed to ʿAbdullah b. ʿAbbas (d. ca. 68/688 or 70/690), this phrase usually
indicates the leaders of missions and delegations. Six reports indicate that ulu al-amr refers to
leaders or rulers (umaraʾ) and another 12 reports indicate that it refers to scholars. Tabari goes
on to conclude that ulū al-amr must indicate rulers on the strength of three general hadith
reports that require obeying the ruler.4 From a historical perspective, the latter interpretation
could not have been intended at the time of revelation, as no recognizable class of scholars
(ahl al-fiqh, ahl al-ʿilm or ʿulamāʾ) existed in the Prophet’s life apart from the leaders of mis-
sions and expeditions; only when the Prophet was not available to judge would obedience to
‘those in authority’ make contextual sense. The verse, therefore, is best seen as establishing
the principle of deputization of the Prophet’s authority in his absence. The same principle
could be extended temporally, that is, after the demise of the Prophet. The conduct of the
Prophet’s Companions, reflected in Abu Bakr’s succession as a leader of the umma but not a
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The state in pre-modern Sunni thought
prophet, and his war against the backsliders (ahl al-ridda), therefore, is most plausibly seen as
being in step with the Qurʾanic political vision.
In hindsight, this ‘political system’ hit its first snag in the succession of the Prophet, for
which, according to the mainstream Sunni account, there was no specific guidance except if
the general command to consult, shūrā, is extended to cover this situation. There is no deny-
ing that when compared to, say, the meticulously elaborated distribution of inheritance, the
Qurʾan is silent on the issue.
Whether the Medinan community can be termed ‘state’ depends on which definition one
chooses, that of intellectual historians or political scientists. European intellectual historians
generally agree that it emerged in Europe between 1300 and 1600 due to a number of specific
developments. What set it apart from any prior form of rule is the confluence of a number of
conceptions that constructed the state as a ‘an omnipotent yet impersonal power’:
1) the state as a separate legal and constitutional order that governs, abstracted and distinct
from the monarch or the officials who hold office;
2) being the sole source of law, exclusive of God, the Church or the Holy Roman Empire,
within its own territory; and
3) the sole appropriate object of its citizens’ allegiance.5
Territoriality, abstraction (i.e. impersonality) and sovereignty, are thus held to be the nec-
essary ingredients of the modern state. Unless the state ideology is identified as a national
religion, secularity should also be added to the list of the modern state’s attributes. This
m aximalist definition employed by European historians is to be contrasted with the more
widely employed minimalist definitions, such as one offered by Charles Tilly, that sees ‘state’
as ‘coercion-wielding organizations that are distinct from households and kinship groups
and exercise clear priority in some respects over all other organizations within substantial
territories’.6 There is no doubt that the Medinan order represented such a ‘state’ by the time
the Prophet passed away, one that was even further consolidated by the time Abu Bakr was
finished with the wars of apostasy. Employing a minimalist definition, while convenient,
may blind us to the enormous differences to our modern states that are better attended to by
the maximalist definition. Students of Islamic law, even when disregarding the historians’
caution, must remember that the difference between a pre-modern state and the ‘modern
state’ is not merely one of quantity (more power, more technology, etc.), but of quality.
To sum up, the early Muslim community imagined itself as a single and singular commu-
nity (umma) that has inherited the prophetic mission, whose affairs are managed by authori-
ties from within it (ulū al-amr), who must govern through consultation (shūrā) – well-known,
militarized differences ensued, concerning whether the right to give consultation was shared
equally by the believing community or limited to the Prophet’s tribe, Quraysh, or his im-
mediate clan, Banu Hashim. This sense of limited self-government represents a conscious
break from the Israelite tradition in the sense that God’s spokesmen now no longer ruled
directly. This break is remarkable, for, in most ways, continuity with the Israelite tradition
remained the rule. The Qurʾan referred to the Israelites frequently as an earlier community
of Muslims from whose examples, both good and bad, Muslims were to learn. Yet, there is
evidence in early Islam of the recognition of a categorical difference between Islamic and
Israelite attitudes toward government or political power, for Islam’s prophet is the last one
and his successors were neither divinely chosen nor guided in a direct sense. This break is
expressed in the following hadith report: ‘The Israelites used to be led by prophets (kānat
Banū Isrāʾı̄l tasūsuhum al-anbiyāʾ); whenever a prophet died, another followed him. But after
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me, there is no prophet, but there will be many deputies (khulafāʾ)’.7 The root s-w-s employed
in this report to refer to the Israelite prophets’ shepherding and leadership of their people also
provides the modern Arabic word for politics, siyāsa.
1.2 Governance (h.ukm, h.ukūma)

Even though the modern notion of state as an entity apart from the rulers cannot be said to
have existed, sophisticated abstractions and distinctions concerning power and governance
did exist. Abu Hilal al-ʿAskari (d. ca. 1005/395 AH), an Arabic literary critic and rhetorician
of Persian extraction, distinguishes between authority in abstract (mulk) and the group of
individuals who come to possess it: ‘The difference between mulk (dominion, authority)
and dawla is that mulk means power, the ability to coerce the majority of people, whereas
dawla connotes the transfer of fortune from one group of people to another’.8 A few centu-
ries later, Ibn Taymiyya (d. 728/1328) shifted the focus of legitimacy on the substance of
government (i.e. its ultimate mandate to uphold the divine law) rather than the person of
the ruler in judging legitimacy and nature of rule. Whereas the earlier Sunni theorists had
imagined political legitimacy in terms of the inherited authority of the successors of the
Prophet, continued when necessary through formalistic rituals, the Mongol destruction of
the Baghdadi caliphate forced Ibn Taymiyya to articulate legitimacy in terms of the norms
and mechanisms by which a ruler actually wields the power (al-shawka) necessary to uphold
the law. Through a creative deployment of well-known verses and hadiths, he conceived of
the people (i.e. Muslims) as a caravan obliged to appoint one of them as its leaders. Thus,
to recall Walter Ulmann’s conceptualization of political transformation in early modern
Europe, Ibn Taymiyya can be said to have articulated an ascending rather than a descending
notion of legitimate Islamic politics.9
One element that decisively sets this evolved political vision apart from the modern con-
cept of state is the latter’s territoriality and the secular sovereignty that is built into it.10 A
missionizing super-tribe, ‘raised for humankind’, could accept territorial markers only as a
contingency, as a second-order reality. A necessary feature of the modern state being its abil-
ity and sole prerogative to define the rights of its citizens in contradistinction to those of all
others, there never developed, as far as I am aware, in Islamic law concepts and institutions
by which the rights of Muslims of one region can be discriminated from those of others.
For the reasons alluded to above, often the attempt to find equivalents of political terms of
recent European origin in Islamicate languages without regard to the conceptual framework
has led to the omission of crucial facts. The family of words that attended political discourse
in Islamic history included terms such as siyāsa (politics, policy), sult․a or sult․ān (authority;
ruler), khilāfa (successorship or deputyship), mulk (dominion, kingship) and dawla (dynasty,
reign), and last but not least, al-amr (ulu al-amr, amı̄r, imāra, imra). This last is the most difficult
to accurately translate, for amr could mean any matter, affair or command, but its linguistic
generality has often confused unscrupulous readers. For, as Muh․ ammad ʿImāra (2009) has
shown, it was the most frequently used term that was employed to refer to the ‘collective
matter’, ‘political rule’ or ‘government’.
As for government, the contemporary word for it in contemporary Arabic and other Is-
lamicate languages is ․hukūma. The root ․h-k-m in Arabic has the original meaning ‘to restrain
or prevent someone from acting in an evil or foolish manner’ or ‘rein in [a horse]’. Since
pre-Islamic times, ․hukm (another infinitive noun from the same root) has been used to refer
to judgment, arbitration, passing sentence, decision making, and, in later Islamic history,
political authority or government. In the Qurʾan, the derivatives of the root ․h-k-m that are
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relevant to governance and arbitration are ․hukm, ․hikma and ․hukkām. H․ ukm connotes the act
or power of judgment, which in the ultimate sense is said to belong to God alone. Indeed, it is
attributed only to God in the Qurʾan with a few exception where al-h ․ukm refers to the divine
wisdom (or set of divine judgments) given to prophets (Q. 6:89, 19:12, 45:16). Since the Seljuq
period (fifth/11th century), the term ․hukūma denoted the office or function of governorship,
usually provincial or local, and this usage continues into the Ottoman period. By the end of
the 18th century the word seems to have acquired the more abstract sense of rule, the exercise
of political authority, or the institutions of government.
In what follows, Islamic history is periodized with respect to the development of polit-
ical and legal institutions into four eras (early caliphate, imperial caliphate, sultunates and
gunpowder empires), which are then outlined, followed by legal developments pertaining to
governance in each period.
2 Development of political and legal institutions
2.1 The early caliphate

Despite its diversity in different times and places, pre-modern Islamic governance was based
on a number of distinctive administrative institutions and practices. Under the governing
logic of Islam, these institutions were largely adopted and adapted from the pre-Islamic Arab
tribal and monarchical traditions and the Sasanian and the Byzantine empires.
The first recognizable administrative institution has been traced to the practice of the sec-
ond caliph, ʿUmar (r. 634–644), who reportedly established the public treasury (bayt al-māl),
understood as public wealth as opposed to private ownership, by two measures: setting aside
conquered lands as property of all Muslims rather than just the participants in the conquest,
and establishing a register or bureau (dı̄wān) after the Sasanian model, in order to deal with
the collection of taxes and recording stipends (ʿat․āʾ) of Muslims. The register increasingly
included expanding functions pertaining to the governing and taxing of the conquered sed-
entary peoples.
The Muslim policy of conquest comprised two principles: preventing damage at the hands
of the conquering armies – especially the ones fighting the Sasanians, as they consisted of
chiefly nomadic tribes not used to relations with city dwellers – to the established Iranian
cities and their agricultural system, thus disturbing the conquered populations as little as
possible religiously, socially or administratively, and seeking the cooperation of the previous
elite in governance. The first principle was underpinned by the Qurʾanic injunction of ‘no
compulsion in religion’ (2:255) allowing religious autonomy to the ‘people of the book’, a
general pattern actualized by the Prophet himself in his pact with the Jewish and pagan tribes
of Medina, to leave each tribe to live by its own religion and tradition and form an alliance
of mutual defence with authority of final arbitration resting in the Prophet. The overall
effect was that, rather than settle as agriculturalists, Muslims in this era were to engage in
governance and carry on further conquests. To prevent the Bedouins from raiding indiscrim-
inately or destroying the productive agricultural lands and to segregate the Muslim Arabs
from the conquered non-Muslims, the Bedouins were settled in garrison cities called ams․ār
(sing. mis․r), the three earliest ones being Basra and Kufa in Iraq and Fustat in Egypt; a little
later, others such as Qayrawan in Tunisia and Marv in Khorasan were established. The old
elites and the administrative machinery of the Byzantine and Sasanian empires were incorpo-
rated into the new regime. Non-Muslim scribes retained their jobs and served the new rulers.
The old landowners, chiefs and headmen kept their authority in the villages and assisted in
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collecting taxes. The Umayyads maintained a dı̄wān al-kharāj where revenue was brought in
from the provinces and recorded before being deposited in the bayt al-māl (treasury).
Apart from these basic principles and practices, the relationship between the caliphate and
the conquered peoples varied, due in part to the treaties and deals that were made with the
chiefs or rulers during conquest. The old city-state status that had been the unit of political
organization in Mesopotamia, Syria and Egypt since antiquity was replaced by a central ad-
ministration that appointed governors. The governor oversaw the collection of tributes and
taxes, supervised the distribution of stipends, led the Muslims in prayer and war, and dissem-
inated religious knowledge among Muslims. In the more remote areas or where the strong
resistance of the old rulers had earned them favourable arrangements, only annual tribute
was collected, at least for a time. In Iran, Muslims established garrisons in or near established
cities such as Hamadan, Isfahan, Qazvin, Rey, Nishapur and Marv. In Iraq, the Sasanian
chancery (dı̄wān), the old system of collecting taxes and distributing stipends, was adopted,
and the taxes included both a land tax (kharāj) and a poll tax for non-Muslims ( jizya).
Non-Arab converts to Islam were absorbed into the old clan structure as clients (mawālı̄,
sing. mawlā) into a multigenerational, symbiotic relationship, in which loyalty and protection
were exchanged, along with social capital such as knowledge (many of the chief scholars of
Islam had been clients of Arab scholars), marriages and economic benefits, but the superior
status of the old Arab clan was retained.
We do not possess any legal treatises from the period, nor are there dedicated jurists; law
and policy are indistinguishable, and the provenance of both is the practical decision making
of the caliphs and their advisers, or their appointed governors and qadis in the provinces or
garrison towns (see 2.2 ‘The imperial caliphate’). By and large, the appointment of these
officials was based on their excellence and precedence in Islam, but also merit and lineage, in
a manner continuous with the pre-Islamic Arabia.
2.2 The imperial caliphate: the Umayyads and the early Abbasids
The Umayyads (661–750), and more particularly the Marwanid-Umayyads (684–750), with
important exceptions, attempted to fashion the caliphate as an Arab phenomenon against
the threat to their interests posed by non-Arab conversions to Islam, and were ultimately
toppled.
There is little reason to think that the Umayyads altered the Rashidun’s practice of ap-
pointing qadis among the capable men who judged by their knowledge of the Qurʾan and
the Prophetic tradition (not yet codified as hadith). Until the third quarter of the first/seventh
century, the jurisdiction of the qadi was limited to the garrison towns and to the resolution
of disputes among Arab tribesmen and their families and clients; only with the Umayyads it
began to extend to the surrounding countryside and to the towns inhabited by Christians,
Zoroastrians, Jews and others.11
The most extraordinary Umayyad, and the most important for the development of I slamic
law, is ʿUmar b. ʿAbd al-ʿAziz or ʿUmar II (d. 101/719), who is seen as having righted all
that had gone wrong in the Umayyad practice since the pious early caliphs, thus earning the
honorary title ‘Fifth Rightly Guided Caliph’, and becoming the yardstick against which all
the vices of the Umayyads could be measured. There is little reason to doubt the general
outline of the account of ʿUmar II’s life and reforms, which, even if exaggerated, depicts how
the second/eighth century ʿulamāʾ, when these accounts were reduced to writing, saw their
political predicament.12 Among his many remarkable policies, the most crucial one was to
put into practice the proto-legal tradition that he had studied in the circles of Medina, as well
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as authorize the collection of Prophetic tradition (hadith) at large. As such, perhaps only in
a symbolic sense, he fathered both fiqh as public law and hadith, the former by emboldening
private scholarly circles to consider it their business to comment on the functioning of the
empire and its courts. Within a generation after his passing, although the Umayyad rule
ended, the socio-religious leadership of the private juristic circles became a force to reckon
with; within a century, the caliph-appointed qadis could not but be members of these juristic
communities. The rise of the formal legal communities or madhhabs, characterized by some
scholars as guilds of law, can be traced to third/ninth and fourth/tenth centuries.
The early Abbasids (749–945), although rejecting the Umayyads’ Arab-centred concep-
tion of rule and restoring a universalist Islamic basis for legitimacy, inherited the personnel
and traditions of the Umayyads and the early caliphs, who had in turn adopted and adapted
the Byzantine and Sasanian practices in granting tax revenues in return for military service.
In contrast with the Umayyads, the Abbasids focused on consolidation rather than expansion,
professionalized the army, and over time embraced their role as leaders of a loose, multi-
ethnic empire, constituted as a coalition of intellectual and provincial elites. It was an em-
pire primarily of cities, which in turn were divided into many walled communities, which
makes it difficult to speak of a ‘society’ in its modern sense, and should be employed only
to mean a collection of communities. The level of bureaucratic control over peasants, semi-
sedentarized villagers, nomads and mountain peoples was naturally rather limited.
The caliph was vested with the authority to rule on behalf of the Muslim community,
and from him all other offices drew their authority; in practice, of course, challenges to the
authority of the caliph were constant. The directly controlled provinces were Iraq, Egypt,
Syria, western Iran and Khuzestan. The term wazı̄r first applied to the high secretaries close
to the caliph, but by the middle of the ninth century, the office of the wazı̄r headed all
administration and drew from established families that often succeeded in passing it on he-
reditarily. The Sasanian registers, or bureaus (dı̄wān), were further developed into the dı̄wān
al-rasāʾil (chancery), dı̄wān al-kharāj (tax collection), and dı̄wān al-jaysh (payment of salaries);
later, there also developed from these bureaus the dı̄wān al-azimmah (internal auditors or
controller’s office), dı̄wān al-tawqı̄ʿ (countersignature), and barı̄d (the official messenger and
information service). A different kind of elite, the ʿulamāʾ, in particular the Hanafis, served
as judges (qud․āt, sing. qadi).
To ensure provincial loyalty to the centre, several means of check and balance were em-
ployed in times and places where centralization could be achieved, such as frequent rotation
of governors (wulāt, sing. wālı̄), a practice established early on by the second caliph ʿUmar,
and division of functions, such that the governor served as the military commander, a repre-
sentative of the central treasury (ʿāmil) oversaw financial affairs, and the qadi drawn from the
ʿulamāʾ class performed a range of functions besides dispensing justice, all being subject to
the oversight of the barı̄d. Local government was minimal, limited to taxation, hierarchically
divided into rustāq (also called dı̄h or qarya; sub-district, consisting of a market and an admin-
istrative town, surrounded by villages); larger geographic units were called kūra and tassūj.
In addition to the cultivated lands that were privately owned and taxed, there were two
other kinds, the crown lands that belonged to the caliphate and those ceded to individuals
on a revocable basis, called iqt․āʿ. One kind was iqt․āʿ tamlı̄k, usually created out of wastelands
for the sake of stimulating agricultural investment with a three-year grace period and other
incentives; such lands ended up becoming private property. Another kind was akin to tax
farming, iqt․āʿ istighlāl, when an insolvent caliph received a sum of money equivalent to the
tithe (ʿushr) for the period in question, in return for the right to tax the peasantry at a higher
rate. The sum thus received was used to finance administration, pay off political debts, and
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offset budget deficits or pet projects. Tax collection was enormously demanding on a bu-
reaucracy suited for communication and record keeping; it required visiting the villages with
a team of specialists including those who could survey, estimate, adjudicate disputes (qadis),
register deeds, provide intelligence and extract, violently if necessary, the revenues. This
would be impossible without the cooperation of middlemen, called aʿwān (helpers), who
were the local headmen (raʾı̄s and dihqān in Iran, shaykh al-balad in Egypt), who were prone
to pocketing commissions from either side. Family ties, extended by patronage, were crucial
to this system.
Against this institutional backdrop, the burgeoning circles of Muslim jurists found two
major areas of normative intervention, court practices or judicial procedures, and taxation.
When one browses the legal literature of political interest from the period, whether surviving
or mentioned in lists, the most common titles are Kitāb al-Kharaj (The Book of Taxation),
Adab al-Qadi ( Judicial Conduct) or some variant of these names. Some of the chief surviving
treatises of the kind, which can be considered the earliest dedicated treatises of Islamic law
concerned with governance from this period, are: Abu Yusuf (d. 182/798), al-Kharaj and
Adab al-Qadi; Yahya b. Adam (d. 203/818), al-Kharaj; Ibn Qutayba (d. 276/889), al-Qada’; and
al-Wakiʿ (d. 306/918), Akhbar al-Quda.
In addition, numerous comprehensive collections of traditions, precedents and law ad-
dressed the role of political authority (sult․ān) in various direct and indirect ways. In this vein,
a common observation is the increasing of depoliticization of fiqh in the following sense. The
four surviving Sunni schools of jurisprudence eventually absorbed all others. The eponymic
founders and hence founding milieus of the Hanafi and Maliki schools can be traced to the
first half of the second/eighth century, or the Umayyad period, and the two younger schools,
Shafiʿi and Hanbali, were formed in the Abbasid period. The role assigned to a legitimate
political authority in resolving disputes and making policy is notably greater in the two older
schools, whereas the two younger ones, the Shafiʿi in particular, limits the discretion and
policy-making powers of the ruler, formalizing the roles of both the imam or caliph as well
as the qadi. Put differently, the attitude of the jurists becomes depoliticized over the course
of the second/eighth century onward, as the ideal of a legitimate, pious, accountable govern-
ment appears more out of reach.13
2.3 The early medieval period: the sultanates
2.3.1 The period of military patronage rule

After the loss of Abbasid power and the fragmentation of the empire to provincial warlords
starting in the late fourth/tenth century, the caliphate was slowly recast as a symbolic office
(see 2.3.2 ‘The Sunni caliphate discourse’). The Seljuqs, who came in as converts to and
saviours of Sunni Islam, ruled through a mix of Persianate bureaucracy and central Asian
tribal ruling custom. As all other horseback warriors of the period across Eurasia, they were
unable to maintain a central empire, and moulded the iqt․āʿ system of the late Abbasid times
into a system of financial administration that, under various names, was later adapted by
the Mamluk, Mongol, Timurid, Ottoman, Safavid, Uzbek and Mughal empires. The iqt․āʿ,
timār, tuyūl and jāgı̄r (names for grants of tax revenues) all represent a similar principle of
decentralized financial compensation to the military elite. Other examples of administra-
tive uniformities among Muslims states are taxation on a kharāj-jizya or land- and poll-tax
basis, and the endowment of waq fs for religious purposes. In many cases, as in Central Asia
and North Africa, these uniformities were due to the direct transfer of Middle Eastern
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institutions, but in many others, they were due to the inheritance of similar institutions
from earlier non-Muslim regimes, and to the adoption of a common Muslim terminology
for separate precedents.
2.3.2 The Sunni caliphate discourse

As noted earlier, the caliphate was theorized as a vital institution when it could not be
taken for granted; the most elaborate Sunni defence and elaboration of caliphate dates from
the fifth/11th century, composed primarily in the discipline of Sunni kalām, no doubt in
response to the threat posed by the Shiʿi rebels and warlords who took power nearly every-
where except, ironically, Persia. Baghdad, the seat of the caliphate and the intellectual centre
of Islam itself fell to the Shiʿi Buyids (932–1062). Not that any authority ever doubted the
obligation of an imam (leader) for the community; all Muslim sects and schools, including
the Sunnis as well as the Shiʿa, consider the installation of an imam (also called caliph for the
Sunnis) a religious obligation. The difference is that the Shiʿa consider it part of their creed,
meaning that without giving one’s allegiance to the true imam one cannot be considered
a proper Muslim, whereas Sunnis consider it an obligation, which means that establishing
the caliphate is an obligation on the community ( fard ․ kifāʾı̄), but not doing so results in a sin
rather than invalidation of one’s faith.14
In addition to the caliphate literature produced by the ʿulamāʾ in a theological vein (dis-
cussed below), far more relevant in practice was the legal discourse which required the ruler
to uphold the law and intervene in the regular functioning of the society in various ways. Fi-
nally, there was what could be called the statecraft literature, including ‘mirrors for princes’,
which addressed the rulers or their administrators, authored often by the rulers, state officials
and the ʿulamāʾ. Whereas the caliphate discourse concerned itself with foundational and con-
stitutional matters, and discussed theological and legal rulings pertaining to the governance
of the Muslim community at large rather than a particular territorial unit, the legal discourse,
as well as the statecraft literature, often merely addressed a Muslim authority with power to
uphold the law, whether a legitimate caliph or local warlord.
One of the earliest and most well-known statecraft treatises in the Perso-Islamic tradition
was Siyāsat-nameh (The Book of Politics), also known as Siyar al-Muluk (Lives of Kings). It has
been attributed to Hasan b. ʿAli of Tus, known as Khwāja Niz ․ām al-Mulk.
During the sultanate period, the statecraft was a mix of Sasanid-Persian, Central Asian
tribal and Islamic models, and is reflected in the political advice literature, in particular the
mirrors for princes genre.15 Central Asian nomadic tribes, whether Turkoman or Mongol,
had been hierarchically organized and hence their clash with Persian statecraft had been less
than with the original Arab egalitarianism, which had for all purposes been already tamed,
but not eliminated, by the Persian tradition. Variants of this statecraft could also be found
throughout the Muslim world. In this sense, even though the statecraft of the period ad-
dressed concerns other than those addressed by the orthodox discourse, the sources as well
as norms of the two genres clashed in some ways. For instance, the Sunni theory does not
see the caliph as ‘God’s caliph’ nor give precedence to the caliph’s interpretation on dis-
puted points of law, and exhorts caliphs to resort to the teachings of the salaf, as evident in
Abu Yusuf ’s Kitab al-Kharaj. The statecraft literature, in contrast, had no qualms describing
the king or sultan as God’s deputy, as ‘God’s shadow on earth’, ‘God’s caliph’ and as abso-
lute in his powers. At times, the very same author would represent two directly opposing
viewpoints depending on the genre, as evident in the case of al-Mawardi discussed in the
following section.
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2.3.3 Mawardi and al-Ahkam al-Sultaniyya

Al-Ahkam al-Sultaniyya (henceforth, Ahkam) by Abu al-Hasan ʿAli al-Mawardi (364–
450/974–1058) has long been considered an authoritative expression of the classical Sunni
theory of caliphate. Mawardi was an eminent Shafiʿi jurist, chief judge of Baghdad under
the Buyids and a caliphal envoy and adviser. He was a thinker of great significance and some
originality who knew politics both in theory and practice and was read widely not only in Is-
lamic but also Greek and Persian ethical and political traditions. Ahkam was authored during
the last few years of his life and reflects the formal Sunni approach to the caliphate, and is to
be contrasted with the statecraft literature authored earlier by Mawardi, which draws on a
wide array sources and in some ways contradicts the vision of politics portrayed in Ahkam.
In Ahkam, Mawardi for the first time brought together the theological issues of the imam-
ate and role of the caliph or imam with the jurisprudential matters in one discrete treatise.
After Mawardi, there began to appear, although not consistently, brief chapters on the imam-
ate in standard juristic works among the Shafiʿis and Hanbalis. Owing particularly to his
concession to legitimize a usurper in ikhtiyār (election of the ruler), Juwayni also chastised
him on this and other points. Modern commentators have seen Ahkam as attempting to le-
gitimize the status quo and legalize the illegal. Subsequent Muslim writers on the subject,
including al-Juwayni, also chastised him on this and other points.
Of the 20 chapters of Ahkam, the first two cover theological debates, while the rest cover
administration and governance and typically present, along with his own Shafiʿi school,
Maliki and Hanafi opinions on any given matter. Curiously, Mawardi’s Ahkam leaves out
the Hanbali school. This neglect perhaps prompted an equally celebrated contemporary, the
Hanbali al-Qadi Abu Yaʿla al-Farraʾ (d. 458/1066), to author a treatise carrying the exact
same title and chapter organization but comprising only Hanbali opinions and rejecting some
of Mawardi’s key innovations. Abu Yaʿla’s treatise is unfairly considered an unimaginative
copy of Mawardi’s treatise. The differences between the two works are significant, and at-
tributable to a different ideological outlook. Abu Yaʿla is consistently more ‘idealistic’ and
closer to the earlier Sunni view –maintaining the early ideal of the caliph as the representa-
tive of the Muslim community at large.
Mawardi’s contribution was extraordinary in other ways as well. The Sunni caliphate dis-
course had been created almost exclusively by Ashʿari theologians as Sunni polemics against
the Muʿtazila, the Shiʿa and the Kharijis. Mawardi’s primary intention, however, was neither
theological defence of the Sunni view of early history and political authority nor to carve
out a more coherent or accurate doctrine of caliphate from among the various opinions.
Rather, it was the defence of the existing Sunni caliphal institution against the possibility of
irrelevance or extinction. He therefore sought to project an aura of general agreement among
the Sunnis and moved the debate from the realm of theology to the realm of practice and
jurisprudence. To that end, he made a few subtle but significant innovations in his approach
to the standard issues.
1) One key contention of the Ashʿari theologians had been that the imamate is an ob-
ligation known by revelation, not reason. Mawardi’s view was closer to that of the
Muʿtazila and that is why he states both opinions without committing to any, thus avoid-
ing provocation.
2) In an innovation that changed the very nature of the institution of caliphate, Mawardi
states that power can be lost via ․hajr (rebellion by insiders of the government), or qahr (re-
bellion by outsiders of the government). This was an unveiled concession to the Buyid,
366
and possibly the upcoming Saljuqs. Mawardi’s overall direction is in the case of the
agency that appointed the next imam. On this question, there were two central issues:
the identity and qualifications of those who elected the caliph (ahl al-h
․all wa-l-ʿaqd, lit.
those who loosen and bind) and whether the caliph could be appointed through testa-
mentary designation by the reigning caliph (nas․․s).
The proper way to appoint the next caliph in Sunni doctrine had been election by some
number of electors followed by an oath of allegiance (bayʿa) by all Muslims. Mawardi lists
the following opinions about the identity of the electors: a pledge of allegiance (bayʿa) by
the majority of Muslims, election by at least five of ‘those who loosen and bind’; by three
of them (based on an analogy to marriage with the judge and two witnesses), and finally by
only one, which Mawardi bases on a report that ʿAbbas told ʿAli that if he (ʿAbbas) pledged
his allegiance to ʿAli, the whole community would follow. Of these four opinions, the only
one Mawardi rejects out of hand is the first one – ironically, the only one that could poten-
tially lead to actual substantive confirmation of the caliph’s authority by involving the Mus-
lim community. But, realistically, it could thereby threaten the ritual nature of the process
Mawardi was advocating. The reason he offers for this rejection relies, in a typical Ashʿari
and Shafiʿi fashion, on the elevation of a historical anecdote to the level of a formal principle:
since the involvement of the entire Muslim community was not needed in the case of the
appointment of Abu Bakr by the Prophet, it could not be a requirement.
Similarly, in the early phase of the caliphate discourse, there existed significant disagree-
ment about whether testamentary designation was an independent means of appointment.
The Muʿtazili scholars consider it invalid altogether. Sunnis such as the Maliki Abu Bakr
al-Baqillani and the Hanbali Abu Yaʿla al-Farraʾ considered it valid if followed by bayʿa by the
electors, thus effectively reducing its value to nomination. ʿAbd al-Qahir Tahir al-Baghdadi
considered designation legitimate but without explicitly specifying whether the confirma-
tion by the electors is necessary. Mawardi was the first to not only claim a consensus on the
issue but also to consider designation a method of appointment independent of confirmation
by the electors.
Three aspects of Mawardi’s caliphate theory stand out as distinct from what his predeces-
sors and contemporaries wrote on the subject:
1) he moves the discourse of caliphate from theology to jurisprudence;

2) he sanctifies and ritualizes the imamate by allowing the separation of caliphal authority
from effective power to govern; and
3) the community completely disappears from his theory.
Mawardi’s interest is to wed theory to reality and sustain the caliphate as much as possible,
and so he makes the formal aspect of the appointment a ritual that is easy to carry out. That
his political programme looks odd and unrealistic is not because it is divorced from practice,
but precisely because he was trying to wed theory to practice without challenging either
too much.
2.3.4 Post-Mongol developments

The late medieval era or post-Mongol period is largely continuous with the early medieval
period in its institutions and ideas. An important institutional development was the rise of
military slaves (mamluk; pl. mamālı̄k) as rulers in the Syro-Egyptian world. On the whole, the
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Ovamir Anjum
Mamluk period (our chief concern being the Sunni world) is quite conservative, in which
the most consummate works of Sunni scholarship are produced. Non-conformity was suc-
cessfully repressed or ignored, which is why the potentially remarkable political ideas of Ibn
Taymiyya had limited immediate impact on practice and scholarship.
As noted earlier, Ibn Taymiyya stands out for his emphasis on the law rather than the
individual ruler as the primary object of political allegiance. In the process, he reconciles the
two separate strands of political thinking in Islam: the orthodox strand of the caliphate dis-
course which upheld the absolute obligation and necessity of the caliphate on the one hand,
and the actual statecraft driven by power, expediency and petty politics on the other. For
Ibn Taymiyya, an Islamic government was not only a matter of ritual continuity with the
past, but also a direct requirement of scriptural imperative, grounded in the obligation of the
Muslim community to ‘command right and forbid wrong’. It was an obligatory institution,
furthermore, whose basic parameters could be broadly determined by the scriptural texts and
the practice of the rightly guided caliphs; any institutional developments after this normative
period he considered relative and non-essential.16
Other important political thinkers of the period include the Maliki jurist Shihab al-Din
al-Qarafi (d. ca. 684/1285), who laid out in perceptive detail the differences between the
respective authorities of the ʿulamāʾ as juristconsults (muftis) and as judges (qadis), and of the
ruler as the political authority (h․ākim), all governed by the law.17 The most renowned and cre-
ative of political thinkers of this period, and of all times, was the Maliki jurist and historian
ʿAbd al-Rahman Abu Zayd b. Khaldun (d. 809/1406), whose Prolegomena to his voluminous
history of the Islamic world has been seen as a pioneering contribution in the philosophy of
history and social sciences.18
2.4 The gunpowder empires: Ottomans, Safavids, Mughals

In the early modern period, nearly the entire Muslim world came to be reconsolidated, after
centuries of dispersion into smaller kingdoms, into three large empires: the Ottoman, Safavid
and Mughal. While on the intellectual plane, even in administrative practices, there is little
that was drastically new, each of the empires erected strong centralized bureaucratic institu-
tions unprecedented in their coherence since classical Abbasid times, and the general populace
achieved a considerable level of prosperity. Of the three, the Mughals of India were the grand-
est and most populous, but also the shortest-lived. Central supervision reached its peak in the
Ottoman Empire. The rulers of all three empires shared Central Asian stock: the Ottomans
were Oghuz Turks whose ancestors had immigrated to Anatolia after their Seljuk cousins had
settled in the old Islamic lands; the ancestors of the Safavids hailed from Azerbaijan, near the
Caspian coast, and the Mughals traced their ancestry to Tamerlane (Timur Lang), who was
proud of his mixed Turkish and Mongol lineage. Among Central Asian tribes, the rule of
succession was that there was no rule, and the tradition continued even as they ruled mainly
sedentary empires. The Ottomans even employed fratricide at first to eliminate the threat of
competition, a practice common between 15th and 17th centuries. The Safavid succession
relied on a more peaceful contest in an assembly of the chief courtiers to choose which son
would succeed after the monarch’s death. In any case, unlike earlier military patronage states,
centralized power was highly valued and none of the empires were allowed to be parcelled
between the male heirs of a monarch as had been the case among the Seljuqs. The leadership of
the Sunni world, contested briefly by the Mughals, fell to the Ottomans when they vanquished
the Mamluk rulers of the central Arab regions of Syria and Egypt. The caliph residing in Cairo
was decommissioned and the title of caliphate claimed by the Ottoman sultan for himself.
368
In administration, the Safavids built on pre-existing Turko-Persian patterns, whereas the

Ottomans created distinct military and civilian offices out of the diverse populations they
ruled over in Anatolia and Eastern Europe; Turkish was established as one of the official
languages in the Ottoman court and literature alongside the rich and ancient Persian. Even-
tually, Turkish largely replaced Persian in bureaucracy and literature and Arabic in religious
discourse. But this did not mean privileging Turkic ethnicity, and ethnic Turks were limited
in their political and military roles, opting often to advance through madrasa education to
become ʿulamāʾ or scribes. For the military-administrative elite, the Ottomans created a
new ‘Roman’ race, a new blend, Turkish-speaking and Muslim, but from non-Muslim,
non-Turkish origins. Ottoman writers took pride in how the Ottomans took the best qual-
ities of many nations and blended them into a new, superior race. The Ottoman state was
the rule and reign of the sultans, but in an important sense it was a conglomeration of all
the households, the sultans’ as well as those of this ‘Ottoman Roman’ elite. In contrast, the
Safavid Empire centred on a charismatic shāh, seen as divinely anointed and even divine by
some of his early followers; this conception abated with the death of Shah Ismaʿil in 1524.
The Ottoman–Safavid military rivalry lasted from 1578 until 1639, when a treaty was
concluded. In both empires the emperor needed to bolster revenues for military ends; mili-
tary service was rewarded through temporary revenue grants (timārs, the Turkish equivalent
of iqt․āʿ) – a system that had been in place since Abbasid times. The rulers’ own revenues
mostly came from customs duties on international trade and commercial taxes, and so in-
crease in foreign trade enhanced the ruler’s revenues, hence the age-old tradition of building
caravanserais, bridges and roads to facilitate trade, and providing security at mountain passes
and river crossings. Both empires learned from each other: the Safavids discovered that ideol-
ogy alone will not guarantee success; the Ottomans realized that administration was not suf-
ficient, and over the course of the 16th century various ideological bases were posited. While
the Ottoman rulers had claimed to be ‘commanders of the faithful’ earlier on, the conquest
of Egypt in 1517 and confrontation with the Safavid ‘heretics’ led them to emphasize the
sultan as the caliph, the leader of the Sunni world. Süleyman I Kanuni (the ‘Lawgiver’; d.
1566) wanted to ensure that his sultanistic edicts were fully in accord with the Shariʿah, and
by the end of the century, the sultan was presented routinely as the champion of Sunni Islam.
Prior to 1600, the ‘classic’ Ottoman rule was based on the principle of an egalitarian agrar-
ian society. The peasants were allocated plots of equal productivity sufficient for a family. In
the Ottoman realm there were about 50,000 cavalrymen and several hundred provincial of-
ficers who lived close to their revenue sources alongside peasants and townsmen. The holders
of larger revenue grants were distant in proportion to the size of the grant in both empires.
The Safavids allowed their Turkoman commanders to hold large land grants in the provinces.
After 1600, the more efficient and superior Ottoman system that had relied on large number
of small-scale holdings came to resemble the Safavids as the need for revenue and military
expenses against the Safavids and Habsburgs put pressure on the Ottomans to make larger
grants. The power and protection of the Ottoman state, which reached individual subjects
directly before this time, now devolved upon civic, religious or ethnic communities.
A crucial difference between the two empires – the Mughal Empire resembling the Ot-
tomans in this respect – was the position of the ʿulamāʾ. The Shiʿi ʿulamāʾ were empowered
by the religious ideology of the Safavid realm, and after the founding dynasty lost its sway,
the ʿulamāʾ’s power, based on secure religious taxes in the Imami school (khumus) and eco-
nomic grants, only increased, whereas the Ottoman ʿulamāʾ, by contrast, had become state
functionaries. An Ottoman qadi administered not only Shariʿah to Muslims but also the sul-
tan’s qānūn law to all subjects. To be considered for the judiciary, the ʿulamāʾ had to not only
369
Ovamir Anjum
follow the Hanafi school that the Ottomans preferred but also learn Turkish and join provin-
cial rotation. This put an end to the Arab ʿulama’s traditional role of socio-religious leader-
ship that had long acted as a check against political abuse.
2.4.1 The poll tax on non-Muslims (kharāj, jizye or

jizye-i sherʿ ı̄) in the Ottoman Empire
Sanctioned by scriptural text (nas․․s) and juristic convention, as asserted in the firmān, jizya was
for the Ottomans a religious tax whose collection and spending had to be done with special
care. It was collected as a rule directly for the state treasury. As a sharʿı̄ tax belonging to the
bayt māl al-muslimı̄n, its administration was put under the supervision of the qadis and not in-
frequently its actual collection was made by them. The jizya revenues were usually spent for
military purposes. Exemption from jizya was usually made in return for military services. In
accordance with the Shariʿah the Ottoman government always exempted from jizya children,
women, disabled and blind men, and the unemployed poor. Earlier, monks (ruhbān) and cler-
ics were exempted from jizya, but in the reform of 1691 all able clerics were subjected to jizya.
In 1692 the ruhbān sent a petition to the sultan stating a sharʿı̄ opinion about the necessity of
the exemption of those ruhbān who were in retirement and not earning their own living, but
it was rejected on the basis of the differing opinion of Imam Abu Yusuf.
Like the first Muslim conquerors of Egypt and Syria, the Ottomans used varied admin-
istrative modes of collecting jizya, in some cases identifying previous taxes as jizya (as in
Hungary). When a conquered land was to be organized as an Ottoman province, a census of
people subject to jizya was made by the qadi appointed there, and a book called defter-i jizya-i
gabrān was drawn up and two copies made, one for the central treasury and the other for the
provincial administration.
Islamic jurisprudence distinguished two kinds of jizya, that fixed by ․sulh ․, agreement,
the amount of which could not be altered (called by Ottomans the fixed jizya, or maqt․ūʿ),
and that levied from individuals, al-jizya ʿala al-ruʾūs (poll tax). Considering the basic sharʿı̄
character of the poll tax, the government often insisted on its payment individually. On the
other hand, the maqt․ūʿ might become too onerous when the population of such a group for
one reason or another decreased. In such cases a new census was often asked for, to reduce
the amount or to return to the payment by individuals. The maqt․ūʿ system of jizya, however,
came to be more and more extensively applied in the period of decline, during which the
central government had increasingly lost control of tax collection in the provinces. It was the
sultan’s responsibility to declare every new year the rates of jizya to be collected on the basis
of a fatwa given by the Shaykh al-Islam, who determined it according to the sharʿı̄ scale. The
wealthy, middle-income and poor paid 48, 24 and 12 dirhams respectively; payment could
be made in silver and gold coins in circulation. If a non-Muslim visitor (mustāʾmin; one given
amān) prolonged his stay in the Ottoman dominions longer than one year he was treated as
a dhimmı̄, subjected to jizya. Later on under the capitulations, the Ottoman government be-
came more and more tolerant in this matter.
Corruption appeared in the form of bribery; collectors could allow the wealthy a lower
rate and force the poor to pay higher, or burden the people for their expenses, or be unduly
harsh.
The Tanzimat decree of 1839 brought a new concept of citizenship to the society of the
Ottoman state: the idea that both the Muslims and the Christians living in the empire were
to be treated as equal before the law. This involved the question of taxation, including the
kharāj, which there was pressure to abolish from Western diplomats in Istanbul. A decision
370
on this was only made after the 1856 reforms, when both kharāj and jizya were abolished,
and instead non-Muslim subjects were to pay a tax in lieu of military service (bedel-e asker).
2.4.2 India
A recognizably Islamicate administration that more or less replicated the dı̄wān system devel-
oped under the Abbasids was introduced into India during the rule of the Ghaznavids, whose
seat of administration was at Lahore, and the administration was organized under it into as
many as ten different departments. This system of government seems to have been fully de-
veloped during the sultanate period, as we find quite a number of departments in existence.
The question of the levy of jizya in India is contested, and there is evidence that it was not
normally levied under the Dihli sultanate in the sense of a discriminatory religious tax. Un-
der the Dihli sultanate, political conditions do not appear to have been apt for the imposition
of a novel discriminatory tax by a minority upon a majority; authors employ jizya to mean
tribute from Hindu kings. Efforts were made by Firuz Shah Tughluq (but the context sug-
gests it was not distinguished from land revenue). In the Sayyid and Lodhi periods nothing
is heard of the levy of jizya. There is mention of Akbar’s abolition of it, but it is dubious and
appears to be panegyrical. Following a number of orthodox measures discriminating against
non-Muslims, Awrangzı̄ b (d. 1707) imposed an unpopular jizya in 1679 on the urging of
the ʿulamāʾ; in this, government servants were exempted, and there were three rates of tax –
owners of property worth 2,500 rupees were assessed at 16 rupees, those worth 250 rupees at
6 rupees 8 annas, and those worth 52 rupees were assessed at 3 rupees and 4 annas, the blind,
the paralysed, and the indigent being exempt. Awrangzı̄ b’s successors largely abolished it;
Muhammad Shah made a futile attempt in 1725 to restore it.
Conclusion
The Islamic political model began as a religious community that became a conquest empire,
but the law and society that the empire had created proved far stronger than the empire itself
and survived the political fragmentation of the middle period that lasted from the fourth/
tenth to the ninth/15th centuries. The Islamic societies of this middle period learned to live
with minimal dependence on government and political participation until the technological
and geopolitical changes allowed the reemergence of large central empires. The sectarian
differences that had crystallized in the early period proved decisive in this recrudescence,
compelling the Safavids to forcefully adopt Twelver Shiʿism as the religious of the empire
in order to mark their independence against the Ottomans. The idea of a single community
under one imam was never realized any more than that of a perfect community or flawless
believer, but this fact never compelled the ʿulamāʾ to relent on their ideal theory of politics,
that of a single community governed by a single righteous and knowledgeable imam standing
in place of the Prophet.
Notes
1 Aram Shahin, ‘Arabian Political Thought in the Great Century of Change’ (PhD dissertation,
University of Chicago, 2009).
2 Michael Lecker, The ‘Constitution of Medina’: Muh․ammad’s First Legal Document (Princeton, NJ: The
Darwin Press, 2004), 3–4.
3 Frederick Denny, ‘Umma in the Constitution of Medina’, Journal of Near Eastern Studies, 36(1)
(1977): 44.
371
Ovamir Anjum
4 Muhammad ibn Jarir al-Tabari, Jamiʿ al-Bayan fi Taʾwil al-Qurʾan, 24 vols (Cairo: Muʾassasat al-
Risala, 2000), 8: 495ff.
5 Quentin Skinner, Foundations of Modern Political Thought, vol. 1 (Cambridge: Cambridge University
Press, 1978), ix–x.
6 Charles Tilly, Coercion, Capital, and European States, AD 990–1990 (Malden, MA: Blackwell,
1990), 1–2.
7 Ovamir Anjum, Politics, Law and Community in Islamic Thought: The Taymiyyan Moment (Cambridge:
8 Ridwan al-Sayyid, Introduction to al-Mawardi’s Tas-hil al-Nazar wa-Taʿ jil al-Zafar (Beirut: Dar al-
ʿUlum al-ʿArabiyya, 1987), 7, quoting Abu Hilal’s al-Furuq al-Lughawiyya.
9 Ovamir Anjum, Politics, Law and Community in Islamic Thought, 262.
10 Stuart Elden, The Birth of Territory (Chicago: University of Chicago Press, 2013).
11 Muhammad Khalid Masud, Rudolph Peters and David Powers (eds), Dispensing Justice in Islam:
Qadis and their Judgments (Leiden: Brill, 2012).
12 Our oldest source on ʿUmar II is a work by a student of Malik, ʿAbdullah b. ʿAbd al-Hakam
(d. 214/829), Sirat ʿUmar b. ʿAbd al-ʿAziz, ed. Ahmad ʿUbayd (Beirut: ʿAlam al-Kutub, 1984).
13 Ovamir Anjum, Politics, Law and Community in Islamic Thought; Patricia Crone, God’s Rule: Six
Centuries of Medieval Islamic Political Thought (New York: Columbia University Press, 2004).
14 S. M. Hosayn Tabatabaʾi, Islamic Teachings: An Overview, trans. R. Campbell, 2nd edn (New York:
Alavi Foundation, 2000); Ovamir Anjum, Politics, Law and Community in Islamic Thought.
15 Louise Marlow, ‘Advice and Advice Literature’, Encyclopaedia of Islam, ed. G. Krämer, D. Matringe,
J. Nawas and E. Rowson, 3rd edn (Leiden: Brill, 2010).
16 Ovamir Anjum, Politics, Law and Community in Islamic Thought.
17 Sherman A. Jackson, The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄ (Leiden: Brill, 1996).
18 ‘Abd al-Rahman Ibn Khaldun Muqaddima (Damascus: Dar Ya’rub, 2004).

Anjum, Ovamir. Politics, Law and Community in Islamic Thought: The Taymiyyan Moment (Cambridge:
Cahen, C. ‘Bayt al-Māl’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2013), ed. P. Bearman, T.
Bianquis, C. E. Bosworth, E. van Donzel and W. P. Heinrichs. Consulted online on 15 December
2018: http://dx.doi.org/10.1163/1573-3912_islam_COM_0109
Crone, Patricia. God’s Rule: Six Centuries of Medieval Islamic Political Thought (New York: Columbia
Denny, Frederick. ‘Umma in the Constitution of Medina’. Journal of Near Eastern Studies 36(1) (1977):
39–47.
Donner, Fred. Early Islamic Conquests (Princeton, NJ: Princeton University Press, 1981).
Duri, ʿAbd al-ʿAziz al-. ‘Dı̄wān’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2013).
Elden, Stuart. The Birth of Territory (Chicago: University of Chicago Press, 2013).
ʿImara, Muhammad. Al-Islam wa-Falsafat al-Hukm, 3rd edn (Cairo: Dar al-Shuruq, 2009).
Inalcik, Halil and P. Hardy. ‘Djizya’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2013).
Jackson, Sherman A. The Constitutional Jurisprudence of Shihāb al-Dı̄n al-Qarāfı̄ (Leiden: Brill, 1996).
Johns, Jeremy. Arabic Administration in Norman Sicily: The Royal Dı̄wān (Cambridge: Cambridge Uni-
Kunt, Metin. ‘Ottomans and Safavids: States, Statecraft, and Societies’. In A Companion to the History of
the Middle East, ed. Youssef Choueiri (Malden, MA: Blackwell, 2005), 192–206.
Lambton, A. K. S. State and Government in Medieval Islam: An Introduction to the Study of Islamic Political
Theory: The Jurists (Oxford: Oxford University Press, 1981).
Lapidus, Ira M. A History of Islamic Societies, 2nd edn (Cambridge: Cambridge University Press, 2002).
Lewis, Bernard. ‘H ․ ukūma’. In Encyclopaedia of Islam, 2nd edn (Brill Online, 2012).
Marlow, Louise. ‘Advice and Advice Literature’. In Encyclopaedia of Islam, ed. G. Krämer, D. Matringe,
J. Nawas and E. Rowson, 3rd edn (Leiden: Brill, 2010).
Masud, Muhammad Khalid, Rudolph Peters and David Powers (eds). Dispensing Justice in Islam: Qadis
and their Judgments (Leiden: Brill, 2012).
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Sayyid, Ridwan al-. Al-Jamaʿa wa-l-Mujtamaʿ wa-l-Dawla (Beirut: Dar al-Kitab al-ʿArabi, 1997).
Shahin, Aram. ‘Arabian Political Thought in the Great Century of Change’ (PhD dissertation, Uni-
versity of Chicago, 2009).
Skinner, Quentin. Foundations of Modern Political Thought, vol. 1 (Cambridge: Cambridge University
Press, 1978).
Tabari, Ibn Jarir al-. Jamiʿ al-Bayan fi Taʾwil al-Qurʾan, 24 vols (Beirut: Muʾassasat al-Risala, 2000).
Tabatabaʾi, S. M. Hosayn. Islamic Teachings: An Overview, trans. R. Campbell, 2nd edn (New York:
Alavi Foundation, 2000).
Tilly, Charles. Coercion, Capital, and European States, AD 990–1990 (Malden, MA: Blackwell, 1992).
Tyan, Émile. Institutions du droit public musulman, 2 vols (Paris: Recueil Sirey, 1954–7).
ʿUmari, Akram Diyaʾ al-. Madinan Society at the Time of the Prophet, trans. Huda Khattab, 2 vols
( Herndon, VA: International Institution of Islamic Thought, 1991).
373
22
Concept of state in Shiʿi
jurisprudence
Amirhassan Boozari
Background: Sistani and the recent case of Iraq

In the midst of the invasion of Iraq, when it became clear that Paul Bremer and the Coali-
tional Provisional Authority (CPA)1 had intended to exert their exclusive control over the
constitution-making process, Grand Ayatullah Ali al-Sistani issued the following fatwa:
These forces have no jurisdiction whatsoever to appoint members of the Constitution

preparation assembly. Also there is no guarantee either that this assembly will prepare
a constitution that serves the best interests of the Iraqi people or express their national
identity whose backbone is sound Islamic religion and noble social values. The said plan
is unacceptable from the outset. First of all, there must be a general election so that ev-
ery Iraqi citizen – who is eligible to vote – can choose someone to represent him/her
in a foundational constitution preparation assembly. Then the drafted Constitution can
be put to a referendum. All believers must insist on the accomplishment of this critical
matter and contribute to achieving it in the best way possible.2
With complete destruction of the Iraqi government and state organs, and the indisputable
fact of a belligerent occupation of Iraq, the main legal arguments revolved around the con-
cept of constituent power, what embodied it, and which international law theory the United
Nation Security Council (UNSC) was to adopt for the legal return of territory to its original
sovereignty. Two major theories could be used in this context: debellatio, adopted for the case
of Nazi Germany after the Second World War, which assumed full sovereignty for the oc-
cupying power, including legislative and constituent powers; and Geneva IV in conjunction
with the UN Charter and the right of self-determination, reinforced by the 1970 Declaration
of Friendly Relations, which assumed a protected sovereignty under occupation for people,
either maintained despite the dissolution of government or transferred back from the occu-
pying power.3 The first theory would allow the belligerent occupier to author the temporary
laws during the transition period and the future constitution, whereas the second theory
disallowed such inclusive power of the occupying army. The issue was whether sovereignty
depended on the government and absence of government meant absence of sovereignty, or
the continuity of state was more than a legal fiction and generated uninterrupted sovereignty.
374
Concept of state in Shiʿi jurisprudence
It seems puzzling to a non-comparatist legal scholar to believe that Sistani, a traditionally

trained high-ranking Shiʿite jurist, was capable of dealing with these issues. Nevertheless,
Sistani’s juristic views turned out to be consistent with what the modern international law,
and in fact UNSC, would require for the constitution-making process in Iraq. Whether it
is because of the Sistani’s fatwas or the UNSC resolutions, the resultant constitution reflects
more genuine autochthonous elements of the Iraq’s constitutional culture, with its own ver-
sion of popular sovereignty, than what CPA originally intended it to be.4 Any bewilderment
as to Sistani’s stance should be removed when one is reminded of the British colonial attempt
in 1923 to impose yet another constitution in Iraq and the Shiʿite jurists’ much more militant
opposition to it.
The main objective in an Islamic constitutional theory of state is to uphold the Divine
sovereignty and implement laws that most authoritatively represent it. In other words, these
are meta-constitutional principles that are antecedent to any political theory. The practical
issue, however, is the legitimacy of state and the extent to which it is capable of striking a
balance between the rights and duties of the government and people. In the Shiʿi school,
Imamate, with the exception of the Prophetic rule, is regarded as the most authoritative
form of Divine representation and, thus, at the centre of any legal or political theory of state.
However, as will be discussed, there is a gap between an ideal Imamate rule and the proxim-
ity of the outcome of realpolitik to such a model. Thus, in dealing with the existing political
power, Shiʿi jurists have developed legal doctrines – most important of which being wilāya –
that not only maintain and reinforce the theological nature of Imamate, but also react to the
historical realities on the ground. Apparently, in Sistani’s view, absence of a constitutive role
for people amounted to violation of those pre-constitutional principles and illegitimacy of
any government that it would produce.5
1 Imamate
Founded on their interpretation of those Qurʾanic verses that pertain to kinship and succes-
sion to the prophets,6 Shiʿites strongly held that leadership of the Muslim community after
the Prophet belonged to ahl al-bayt, the House of the Prophet, which consisted of a very
limited group of Muhammad’s close relatives.
Shiʿi theology does not deviate from the general definition of Imamate in Islamic juris-
prudence and has characterized it as ‘riyāsatun ʿāmma fi ʿumur al-dunyā wa-l-dı̄n li-shakhs․in min
al-ashkhās․ nı̄yābatan min al-Nabı̄’ or universal authority in both spiritual and temporal affairs
which is bestowed to someone who is delegated by the Prophet.7 Two concepts need elabo-
ration in this regard.
1.1 Divine grace

According to Tabatabaʾi (d. 1981), the creation of man by God is designed to conform to
those general rules of nature that spur evolution towards perfection and felicity, and man
is guided through his divinely devised fiţra, an instinct that motivates seeking reality of
the Divine and His creation.8 The Divine provides guidance through revelation, which
includes commandment of duties; duties should be performed by man; man is endowed
with rational faculty; in search for benefit or loss in acts employs practical reason and seeks
approval and finds guidance in the revelation; Divine guidance entails His luţf (grace) in
assisting humanity to achieve highest virtues informed and advised through revelation;9 and
the Imams are educators who provide correct interpretation of the revelation (Qurʾan) the
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Amirhassan Boozari
prophetic teachings as well as correct rules of Shariʿah. Divine grace is also independently
needed when human intellect, overshadowed by human desires and instincts or lack of in-
dicators, is unable to determine every benefit or loss in the acts whose nature is not readily
recognizable.
Maintaining the intricate core of the God–man relation, the following supporting argu-
ment is quite illuminating. Completely comporting with human patterns such as taʾaddub (act
of courtesy), Shiʿi theologians argued that,
The divine’s luţf is, among other reasons, mandatory because God finds out that a mu-
kallaf would not perform a duty unless by being courteously invited to do so, absence
of which would defy the intended benefit in the mandated act. It is similar to when
you invite someone to dinner and know that your guest will not accept it unless you
extend your invitation with civility. You do so because grace is required to achieve
your goal.10
This type of argument was not intended to diminish the immense significance of performing
Divine commandments; it was offered to emphasize all the rational consequences of what
is known as human will: its necessity, existence and importance, which establish liability or
reward for man in performance or non-performance of a mandatory duty; and amounts to
belief in the ultimate justice in Divine judgments on Reckoning Day.
In a more technical level, luţf is defined as ‘anything with which one gets closer to obe-
dience and distances him from sin, wherein neither enablement nor coercion is included’.11
Absence of enablement is required because luţf should be devoid of merely enabling some-
one to get closer to obedience or push him back from disobedience.12 Nor should it be
unyielding and coercive because coercion in performing mandatory duties yields no choice
for one to incline towards or refrain from performing them. Therefore, when it is prac-
tically impossible for one to commit a sin, prohibiting an impossible act should not be
counted as luţf.13 Through a purely rational argument, Shiʿi theologians argued that grace
is mandatory not upon God, but for God, subsequent to His Guidance: a means of ob-
taining the intended benefit of performing mandatory duties. Appointing Messengers is
a mandatory grace because not only revelatory declaration of duties indicates the Divine
guidance, but will it also help rational people to discover congruity between revealed com-
mandments and acts that they find rationally mandatory to perform. Such assistance (luţf )
can only be provided by appointing Messengers. In other words, existence of expressive
mandatory duties is a grace provided for those who choose to perform mandatory acts over
what is forbidden.14
1.2 Agency from the Prophet

Agency from the Prophet in the Shiʿi thought was exclusively tailored for the 12 Imams who
by the Divine intervention possessed characteristics of ʿis․ma (infallibility) and ʿilm (knowl-
edge). Infallibility or immunity from sin and error was fundamentally a unique attribute of
the Imams, whose esoteric essence could be verified by well-established rational arguments.
A designated infallible Imam was to be the most learned of the Prophet’s descendents. The
Imam was in charge of delivering correct interpretations of the Book, educating and render-
ing final decisions on anything ․halāl (permissible) or ․harām (forbidden), determining right
from wrong, and guarding Shariʿah from distortions and innovations as well as preserving its
authenticity.
376
Coupled with their infallibility, the Imams’ determinations were binding and mandatory.
Mufid argued that
the twelve Shiʿi Imams were the vicegerents of the Prophet, responsible for verification
of the applicable Shariʿah rules; had to put in operation the divine rights (H
․ udūd Allah);
defend the rules of Sharāyiʿ (every monotheistic Law); and guide human beings.15
The ʿAllāmah summed up the previous jurists’ arguments and concluded that a fallible person
could not be the protector of Shariʿah; his agency from the Prophet would have been futile;
and his rulings, inherently predisposed to error, would not induce acceptance and consent
from the faithful.16 The existence of the Imam, whose necessary presence was proven by both
textual and rational evidence, was viewed as an incumbent graceful act of Allah and any lapse
thereof would have been similar to forsaking the Muslim community and depriving it of a
spiritual guide who would lead in accordance to His Law.
After the passing of the Eleventh Imam, the majority of Shiʿi theologians held that right-
ful succession belonged to Mahdi, his son, and that Mahdi, also known as Qāʾim (one who
rises), is not only the last Imam, but also the promised one who would remain in occultation
(starting 261/874) as long as his rise and ascent to the final leadership of the umma is decided
by the Divine. Accordingly, Shiʿi theologians conclude that congruence between the con-
tinued grace of God in His Guidance and the permanent existence of a guide (Imam) leads
to two major results: 1) the Imam is the Divine’s apparent exoteric proof for Muslims17 – ʿaql
(human intellect) being the Divine’s hidden esoteric proof;18 2) the Imam, present or hidden
from the eyes of onlookers, is the ultimate source of legitimacy whose leadership and rulings
are approved by Allah – at no time can ultimate leadership and guidance be bestowed on
others and, notwithstanding one’s acceptance or pursuit, performance of his rulings is man-
datorily incumbent on Muslims.19
2 Nature of Imamte in Shiʿi jurisprudence: wilāya

The Imams’ comprehensive knowledge of Shariʿah was uniquely characterized to establish
certitude in full understanding of the essence of legal issues and arrive at rulings that met
with the intended truth of Laws promulgated by the Divine, technically called kashf wāqiʿ.20
Evidently founded on the concept of taklı̄f, it was inherently within the Imam’s extensive
authority or wilāya to determine licit from illicit, and the incumbent duties of the faithful.
The idea is that the Imams would only provide rulings on general matters and principles,
‘whereas inferences in details and minor precepts for actual cases were left to the learned
followers of the Imams’.21
A certain degree of non-Imam human agency allowance, famously known as Ijtihād, is
thus perceived to exist and intervene in not only correctly grasping what those general rul-
ings entail, but also developing various theories attendant to the discovery of rules on newly
encountered issues.
2.1 Practical reason: realm of politics

Haʾiri Yazdi (d. 1999) believes that ‘governance, administration of state, and daily man-
agement of people’s affairs such as their economic and security needs, are all variables and
substrata of ʿaql al-ʿamalı̄ (practical reason), constantly subject to change and oscillation’.22
Constant change, the governing rule of all empirical experiences, inevitably creates varied
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Amirhassan Boozari
circumstances where the relation between those variables and general precepts of Shariʿah
takes new forms, and every new form creates new issues subject to new rulings.
Technically, recognition of the nature and specifications of subjects in Islamic law is usually
made through, among other things, ʿurf wa-ʿāda (social custom and habit) that can be either
ʿāmm (general) or khās․․s (particular). In other words, social customs and habits define and
delineate the contours of a subject. The sociological process in which customs and habits are
established is heavily dependent on the type of reciprocal communicative actions or activities
that the general public, or a class of people, adopt in order to adjust to or compromise with,
or even create (semi-)legal constructs and notions for, their social and economic needs. These
transactional actions are normatively influenced by every society’s predominant culture, which
may or may not be at variance with its religion. This generative process functions beyond the
juridical scope of authority as jurists are only authorized to engage in the attending process of
arriving at suitable rulings. Public belief in the validity of and potential for obedience to such
rulings heavily depends on the rulings’ level of harmony with those established contours.
Us․ūlı̄s hold that there is an original conformity between rational findings and the Divine
commands, verifiable in the dialectical relation between ․husn (beauty) or what elevates the
soul and qubh ․ (ugliness) or what causes its downfall, on the one hand, and rational people’s
assessment of a certain act’s mas․lah․a (benefit) and mafsada (loss) on the other, which amounts
to various degrees of congruity between the two. Therefore, people’s recognition of subjects
through ʿaql al-ʿamalı̄ (practical reason) and recurrent practice of social customs and habits
(determinations of rules) are indispensable elements of any juridical opinion.
Politics and state embody adjusting and compromising communicative actions transacted
between the ruler and the ruled that establish consent of the governed and justice in the
legitimately imposed power, all being manifestations of practical reason. The main concept
is ‘justice’. Similar to other transactions, there should exist a balance between the parties’
rights and obligations in politics. The Qurʾan clearly states that rising to establish justice is a
charge laid on individuals, educated and guided by the prophets who have brought clear signs
such as Book and Balance.23 The realm of practical reason, therefore, is primarily yet another
locus for the Imam to educate and guide, awaken and warn, invite and train the people on
the basis of what the Prophet, with his superior morality and sense of justice, taught by the
Book. Shiʿi theology assumes a major trajectory in the progression of the Imam’s guidance
to his political rule which reflects the vicissitudes of conjectural emendations of accom-
plishing justice in politics: after the Prophets, the Imam is the unsurpassable embodiment
of the Divine grace, ‘his existence is an indispensable necessary component of an orderly
faithful community’,24 and the right to rule normatively belongs to him. In order for people
to draw correct inferences and conclusions of justice, they are obligated to obey the Imam’s
verdicts on spiritual and temporal matters. As long as people lag in performing this duty, the
conditions for his ascendency to power are not ripe yet. ‘We are responsible for his physical
disappearance’,25 not him. Ultimate justice, in its vast entirety, will eventually be established
by him only. In the meantime, people should keep expanding their understanding of, and
earnestly endeavouring to struggle for, and adhere to, justice in every aspect of practical rea-
son, including politics. In the realm of law, Us․ūlı̄ jurists hold customary perception of justice
as key to juristic determinations.
3 The Imams and politics

The prevailing opinion among the Shiʿi scholars has always been that political leadership
is within the Imams’ inherent rights to complete their wilāya. The bifurcated nature of
378
leadership, however, should scale more towards the spiritual–legal component than the tem-
poral (political) component. With the uniquely specific case of the 12th Imam in mind,
Shiʿi scholars collectively believe in a version of millenarianism, according to which Mahdi
will certainly be very active in establishing justice, pursuing political power and retaking
the reign from illegitimate oppressive sovereigns. Ali took the reign in one of the most tur-
bulent periods of early history of Islam when the masses approached him to succeed a slain
Caliph. Ali cited two reasons for his acceptance of political leadership: the people’s demand-
commitment and the pledge from Allah with the learned to oppose the injustices of the rich
and powerful imposed on the poor and weak.26 Ali’s invocation of popular demand and con-
sent has clearly advanced it to a precept of legal and moral value that practically effectuated
his right to political rule.
Ali believed that power can be a predilection for despotism.27 Upholding the Prophetic
rule, he adhered to a contractarian model of governance where political rule is viewed as an
agreement entered in to by the ruler and the governed in order to strike balance between the
individual rights of the governed and the ruler’s right to be obeyed.28 Ali refused to make
financial concessions, to the detriment of his rule, and adopted egalitarian policies by which
everyone would get an equal monthly stipend from the treasury as long as they would not
resort to armed opposition and violence.29 He instructed his appointed governor of Egypt:
Infuse your heart with mercy, love and kindness for your subjects. Be not in face of them
a voracious animal. Counting them as easy prey, for they are of two kinds: either they
are your brothers in religion or your equals in creation.30
These are the main vectors of an Imamite rule.
3.1 Juristic interpretations of the Imam’s rule

Theoretically, only the Imam’s rule can establish justice and fully represent the Divine sover-
eignty. Full-scale legitimacy of the political leadership is reserved only for the Imam. Illegit-
imacy of a non-Imam rule may only be partially remedied by as far as justice can be obtained.
Jurists have usually viewed a just non-Muslim’s rule more favourably than an unjust Muslim’s
one. These premises, however, did not create an articulated theory of public law, which re-
mained an obscure part of fiqh well until the constitutionalist revolution of 1905.
Beside the regular tasks, the prevailing traditional theory was that Mahdi had exclusive
wilāya over those major areas of law that Mufid had described as ‘putting in operation the
․hudūd Allah or divine rights’, such as the call for jihād (offensive war), anfāl (booty gained
without war), khums (a religious tax), zakāt (alms-giving), Friday Prayer and the execution
of ․hudūd punishments. In the context of Divine sovereignty, Divine rights can be defined as
those Divine commands, ordained in the Qurʾan and supported by the Prophetic Sunnah,
that are immune from transgression, to be upheld and regarded as a public duty that bind
both ruler and the ruled. The traditionalist jurisprudence takes a mainly positivist approach
to the concept of Divine rights and, thus, enumerates only those actions that are called for
in the Book confirmatively. There is, however, another set of commands, expressed often in
a rather apophatic-prohibitive form, that also deserves proper juristic treatment such as con-
demnation of oppression, usurpation of God’s omnipotent domination, arrogant assumption
of self-sufficiency and denying obedience to God, acting in substitution of God, etc.
That positivist approach was attuned with the Us․ūlı̄ jurists’ theories, developed as legal
maxims, which prohibited assisting an oppressor ruler. Those maxims included manʿ al-wilāya
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Amirhassan Boozari
min qibal al-jāʾir (general prohibition of seeking or obtaining agency from an oppressive
ruler) and ․hurmat al-Iʿāna ʿalā al-Ithm wa-h․urmat Iʿānat ʿalā al-z
․ālim fı̄ ․zulmihi (prohibition of
abetting an oppressive ruler and his oppression),31 and most recently, qāʿidat al-ʿadāla wa-nafy
al-z
․ulm (principle of justice and negation of oppression). All such theories and legal maxims
apparently revolve around the kind of authority that deals with the implementation of fun-
damental rules that govern the relationship between state and society where the state uses
its coercive power to induce obedience. Shiʿi jurists, therefore, drew two conclusions: 1) in
addition to personal conduct matters, Mahdi’s wilāya extends to all those areas of public law
that state regulates and administrates its subjects’ rights and duties as a community; and 2) the
office of a non-Imam ruler, technically called jāʾir (lit. oppressor), is unjust and suffers from
a legitimacy deficit as it usurps the exclusive authority of the Imam in delineating borders
of the divine rights. Therefore, legitimacy is completely established only when the Imam
holds the political power. In keeping with satisfying the Shiʿite communities’ need to social
order and lawful obedience to the rules of Shariʿah, the pre-modern jurists derived from the
Imams’ general rulings a form of general deputyship (niyābat ʿāmm) that would provide the
jurists agency in determining rules of personal conduct. In the absence of the Imam, private
law remained the exclusive jurisdiction of jurists in Shiʿite societies.
Attempts were made, in the early stages of the Safavid dynasty (1502–1722), to resolve the
ensuing conflicts of the absence of the Imam by assigning his religious authority to the most
learned jurists and his political authority to monarchs. The main objective of this scheme,
known as the just sultanate model, was to enforce the long-standing concept of rule of law
by providing the leading jurist with a mainly legislative power that would bind and limit the
monarchs’ administration of executive power. This model, however, was unable to resolve
two major self-generated dilemmas: 1) Division of authorities would logically assume an
extensive degree of distinction of religious and political questions. Where would the line of
separation be drawn? What was religious or political? 2) With general deputyship from the
Imams, there was little doubt as to the legitimacy of such high ranking jurists. Questions
remained as to where the king obtained his legitimacy from. Would it be possible to arrive
at anything remotely close to the idea of the Divine appointment of monarchs?32 Unsurpris-
ingly, the just sultanate model was plagued with the despot kings’ overreach of power and the
acquiescence of compromising jurists. At the later stages of the Qajar dynasty (1785–1925), it
further proved dysfunctional when despot, corrupt and extremely incompetent kings failed
to confront the expansionist policies of the Russian Empire that imposed two major wars
against Iran, and the colonialist interventionism of the British Empire that never stopped
impoverishing its economy deeper. The continued inefficiency, lack of competence and ille-
gitimacy of kings practically created the potential for a wider scope of authority for jurists.
Insofar as those deficiencies could be remedied with the complacency of jurists, both the
borders of such wider authority and a stable balance of the relation of state and society would
be less clear and achievable. The 1905–1911 constitutionalist revolution in Iran put an end to
the actual life of this model.
The just sultanate model was heavily challenged by the Muslim societies’ national move-
ments against the tyranny of despotic rule of monarchs, colonialism, neocolonialism and the
puppet regimes, with popular demands for political independence, rule of law and democ-
racy. In the first decades of the 20th century, Us․ūlı̄ jurists strongly supported, and at times
took leadership of, the national movements in Iran and Iraq. While condemning all forms of
authoritarianism, including religious despotism, and advocating individual rights, these ju-
rists engaged in polemical disputes with the traditional supporters of the just sultanate model
and strongly argued that in the absence of the Imam, the authority to attend to all the issues
380
that would disatisfy God if left ignored and neglected, or ․hisba matters, belongs to the people.
The concept of ․hisba originally relates to the laws of charitable protection of legal interests
of those who are mentally or physically disallowed to decide on their ownership or financial
rights, such as the insane or absentees. The scope of ․hisba emanated from the duties and rights
attendant to the broader concept of enjoining good and prohibiting evil and became even
more complicated with further sophistication of the Islamic state in the pre-modern era to
the extent that it included administrative law. Therefore, a ․hisba matter, interplaying between
right and duty, is intertwined with the concept of public duties in Islamic law. In a modern
rendition of this concept, it is fair to claim that ․hisba matters are what we generally view as
secular (temporal) affairs. The traditional juristic view holds jurists to be most qualified to
take charge of ․hisba duties, followed by trustworthy non-jurist individuals. To the constitu-
tionalist Us․ūlı̄ jurists: 1) the authority to discharge many of these public duties belongs to the
public, not jurists; 2) governance is a ․hisba matter and, therefore, the right to govern origi-
nates from and belongs to the people; and 3) the people have an inherent right to rebel and
should be able to employ it against despotism and corruption of state, social and economic
inequality, and resistance against aggressors to their homeland. 33 They also held that the
scope of jurists’ authority is restricted to issuing fatwa and adjudication, and the rationale for
prioritizing jurists in ․hisba matters, except for passing judgments, can only be justified if the
juridical logic of qadr al-mutayaqqan (the least amount of certainty) is applied.34
While maintaining the legitimacy deficit of a non-Imam’s rule, the Us․ūlı̄ constitutional-
ists’ sophisticated arguments found constitutionalism to be the closest model to Imamate and
established the following theoretical precepts for any Shiʿi political model:
1) in the absence of Imam, ․hākimı̄yya (sovereignty) bi-l-ʾas․āla wa bi al-Istiqlal (in principle

and independently) belongs to the people;
2) thus, constituent power originates from the people and constitution is a contract that
binds the ruler;
3) elected members of parliament represent the public’s role in the realm of practical
reason; and
4) every piece of legislation which is not in apparent incompliance with the prohibitive
rules of Shariʿah can be considered Islamic and should enjoy the status of legality.
The last of these was the task of a supervisory committee of jurists, whose jurisdiction would
be exclusively limited to the judicial enactments of parliament. The progressive results of
the 1905–1911 constitutionalist revolution reverted to authoritarianism chiefly because of
the external interventions of the two dominating Russian and British empires. The consti-
tutionalist revolution was extremely successful and influential in unifying major parts of the
Shiʿi jurisprudence, especially in muʿāmalāt (contracts, torts, personal status) and adillat al-
ithbāt (litigation and evidence), with the Iranian Civil Code, a major outcome which remains
mostly intact to present.
The disappointing impact of the constitutionalist revolution’s defeat was exacerbated by
the decimation of the 1921 Iraqi resistance against the British Empire’s occupation. Fur-
thermore, the devastating consequences of the Second World War in the Middle East met
with little to no independent reactions from the Pahlavi kings (1925–1979) in Iran. Constant
encroachment of the legislative power and co-opting its members by manipulated elections,
dismantling the jurists’ supervisory committee and gradually but completely removing them
from judicial positions, and a CIA–MI6-led coup against the constitutionalist Prime Minis-
ter in 1953 that reinstalled the fugitive king Muhammad Reza as practically a puppet were
381
Amirhassan Boozari
not only undeniable facts but also moving factors for the new generation of Us․ūlı̄ jurists,
led by Ayatullah Khomeini, to offer wilāyat al-faqı̄h (comprehensive authority of the jurist),
which was primarily a minority view.
4 Wilāyat al-faqı̄ h and the issue of jurists’ expanded

authority in the absence of the Imam
4.1 Wilāyat al-faqı̄h

Ayatullah Khomeini’s original views on wilāyat al-faqı̄h were mostly in tune with the con-
stitutionalist model. A highly educated Us․ūlı̄ himself, Khomeini deeply shared the Us․ūlı̄
constitutionalists’ frustration of the sudden devaluation and, later, the complete dismantling
of jurists from their constitutional supervisory duties. His political rendition of wilāyat al-faqı̄h
was for the most part founded upon the Us․ūlı̄s’ arguments against the just sultanate model
where he rejected any level of legitimacy for monarchy and strongly resisted levelling the
most diluted degree of legitimacy for Pahlavi monarchs, even in the case of social exigencies
or political expediencies. He concurred with the constitutionalist jurists on the emergence
of constituent power for the people and insisted on their key place in the stages of transition
from dictatorship to a consolidated republic. Khomeini, interestingly enough, did approve of
the first draft of the Islamic Republic’s Constitution, modelled after the French 1958 Con-
stitution, which vowed for a presidential system and envisioned no major or special role for
jurists in the political realm of the would-be republic. Despite the incorporation of wilāyat
al-faqı̄h in the final draft of the 1979 Constitution and well into its amendment process, which
began a few months before his death (1989), he remained loyal to his original legal opinion
that obtaining the constitutional position of supreme leadership of a qualified jurist should be
preceded by popular consent and acceptance. Finally, he joined the constitutionalist jurists’
opinion that parliament is capable of representing the public’s role in practical reason. In
different conflicts that arose during his leadership between the Majlis (the Islamic Republic’s
equivalent of parliament) and the Guardian Council (the Islamic Republic’s equivalent of
the supervisory jurists’ committee), Khomeini decided that a parliamentary super-majority’s
holding should overrule the Guardian Council’s veto and admonished the jurist members of
the latter legislative body for their rigid interpretations of the Shiʿi jurisprudence.
4.2 The issue of jurists’ expanded authority in the absence of the Imam
4.2.1 Ijtihād and issuing fatwas

Ayatullah Khomeini originally agreed with the constitutionalist jurists, holding that in de-
ciding on the scope of a jurist’s authority, in the traditional custodial scope of ․hisba matters,
the logic of qadr al-mutayaqqan (the least amount of certainty) should be applied. The premises
of the expanded authority of jurists in Khomeini’s theory are to be found in his relatively
variegated reliance on the Us․ūlı̄ doctrine’s designation of jurists as the exclusive holders of
authority in issuing fatwa and adjudication. Us․ūlı̄s by consensus hold that as a rationally
established rule, mukallafūn depending on their religious knowledge are either individually
capable of arriving at valid Shariʿah rulings for questions arising from discharge of duty or
should mandatorily do taqlı̄d – commit to follow their chosen mujtahid’s opinions. Since
an overwhelming majority of them needs to perform taqlı̄d, this rationale has become an
indispensable part of the ordinary people’s religious and social life. In order to reach this
382
general conclusion, however, Khomeini in his al-Ijtihād wa-l-taqlı̄d, set the following thresh-
old foundations:
1) Islam is a comprehensive religion and the Divine text contains all the instructions and
guidelines a man may need.
2) The Qurʾan is clear on the omnipotence of Divine sovereignty and every Muslim is
charged with a mandatory duty to safeguard it. This means that political governance
should be based on implementation of the rules of Islamic law.
3) It is impossible to believe that the text has failed to clarify the Muslim umma’s duties in
the important matters of governance or to designate who should rule or pass judgment.
Belief in such failures would be tantamount to a deviant declaration of the Divine text’s
deficiency.
4) By being appointed as Messenger, Muhammad was given the authority to legislate and
adjudicate. However, in order to complement his Divine mission, Muhammad was also
appointed by God as a political leader charged with setting in operation the principles of
a model of political rule that would best safeguard the Divine sovereignty. Failure to be-
lieve in Muhammad’s political leadership would similarly amount to declaring Muham-
mad’s mission incomplete. Therefore, it is imperative to also trace the legal implications
of the Prophet’s political status in many of his statements and actions.35
Therefore, a mujtahid who is qualified to issue fatwa should be cognizant of all these points
and take them into serious consideration when rendering his opinions. Although the con-
stitutionalist jurists, in their writings on Ijtihād, did not make the exact political arguments
that Khomeini put forth, it is hardly possible to imagine that they would disagree with him.
4.2.2 Qadā (adjudication)

˙
Khomeini was a staunch believer of the proposition that ‘law and adjudication are political’. 36
Theoretically, the legitimacy and validity of an issued fatwa does not necessarily depend on
the Imam’s idhn (licence) and can be obtained from the Book and Sunnah as well as from
reason and iʿtibār aw bināʾ al-ʿuqalā (the credit that should be assigned to the course of action
that rational people adopt). According to al-as․l ʿadam wilāyat ah ․adin ʿalā ah․ad (the principle of
absence of authority of someone over the other),37 classic jurists held that only a ․hukm (ver-
dict) issued by either of the following two types of judges would legitimately lay restrictions
on the disputants’ rights: qadi mans․ūb (a judge whose office has been approved by the Imam);38
or qadi tah․kı̄m (a judge chosen and authorized by parties, who has obtained their consent to
his verdict prior to proceedings).39
Both types of judges must be mujtahid and their competence as a just, reliable scholar of law
who is qualified to perform Ijtihād must be verified by either of two ways: bayyina (the testi-
mony of other just and reliable people); or shı̄yāʿ (obtaining a reputation as such in society).40
The source of people’s recognition of such qualifications, except for the highly specialized
matter of Ijtihād, is the collective social and cultural methods that have been developed by
their practical reason, which as mentioned before can be originally based on their religion
or any other ways that the concept of justice would be comprehended. Without such verifi-
cation, the candidate will not be allowed to issue a fatwa or pass a valid judgment. It is after
such recognition that the issue of the Imam’s licence would be examined where evidence
of such probative value should be presented that would sufficiently prove the existence of
that licence for adjudication. Therefore, the validity and enforceability of a judge’s ruling,
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Amirhassan Boozari
thus laying restrictions on others, is subject to this two-pronged verification. One last point
is that a fatwa is technically incapable of overruling a judgment.
4.2.3 Who is h.ākim?

In the Shiʿi legal jargon, the word ․hākim is used for both a presiding judge and a ruler.
Khomeini opined that both applications refer to the Imam’s unified status. Furthermore, he
opined that a certain class of jurists, by extension and because of their general deputyship
from the Imam, is also qualified to act on behalf of the Imam in both capacities. The word
not only derives from the same lexicographical roots as the word ․hukm, but also has legal and
practical implications. A judge’s ․hukm (ruling) is definitive of the parties’ dispute and shares
similarity with the finality of the Imam’s ․hukm in any Shariʿah issue. A ruler’s decision, at
least in its typical sense, also enjoys legitimacy in resolving the conflicts arising from power
politics. The Imam’s rule, in the Shiʿi perception, is endowed with equal authority in his
exclusive jurisdiction of political power.
Although Khomeini is much more confident in the judicial aspect of the concept, it is his
employment of the political aspect, and the consequent equalization of the jurists’ agency
with substitution of the Imam on its basis, that subjects Khomeini’s theory to other Us․ūlı̄s’
critique. There are four Us․ūlı̄ jurists upon whose ideas Khomeini structured his theory.
The first is Ahmad al-Naraqi (d. 1281/1864), who is the progenitor of wilāyat al-faqı̄h in its
first rendition as a theory for the expanded authority of jurists. In the mid-1800s, when the
signs of incompetency of corrupt government officials became more prevalent than before and
adversely affected the laity’s lives in larger proportion, al-Naraqi, by invoking several tradi-
tions attributed to the Prophet and the Imams, argued that jurists are indisputably authorized
to act on behalf of the Imam. Despite the fact that the theoretical scope of what al-Naraqi
argued for was limited to traditional custodial issues of ․hisba law, his general argument was
that in the absence of the Imam, any issue for which a jurist does not know who to designate
as the right holder of authority, jurists would be the first and most prominent candidates.41
Second, Al-Ansari (d. 1281/1864), on the issue of the impermissibility of working for an
unjust ruler, held that the nature of prohibition was directed against the acts of oppression
committed by an unjust ruler, yet it was permissible if and as long as agency on behalf of such
ruler provided an opportunity ‘al-qiyām bi mas․ālih․ al-ʿibād’ (to accomplish the best interests of
Muslims) and ‘restitute an individual’s violated right’.42 Therefore, it became possible to ar-
gue that the oppressive characteristic of an unjust rule would be mitigated extensively when
these objectives were achieved. This served as the foundation of the Shiʿi Us․ūlı̄s’ view on the
essence of governance.
Third, Akhund (d. 1329/1911), the most prominent constitutionalist Us․ūlı̄ leader, in his
famous fatwas categorized the ․hisba matters with more clarity and sophistication in their
much broader context as ‘the duty of recommending good and enjoining evil’, and expanded
them to include political matters. Moreover, he held that all attendant duties fall in the juris-
diction of the constitutionalist parliament.
Fourth, Naʿini (d. 1355/1936), a prominent constitutionalist Us․ūlı̄, also characterized just
rule by amāna (trusteeship and assigning executive offices to trustworthy individuals) and
resembled a just ruler to the executor of an endowed property, charged with utmost loyalty
to its beneficiaries (the people) in safeguarding their rights and subject to their supervision.43
Al-Ansari and Akhund completely disagreed with al-Naraqi on the validity of many of
the traditions that the latter had invoked, and strongly rejected any expansion of the jurists’
authority beyond issuing fatwa and adjudication. Naʿini had explicitly called for ‘equality and
384
partnership of people with ruler in all sources of power and public wealth and reserved their
right to control and hold him accountable’,44 which would practically leave the jurists with
the essentially apolitical task of juridical supervision of the legislative enactments.
Khomeini did not deeply engage in the technicalities of validity of the traditions cited by
al-Naraqi. Instead, he argued for the all-comprehensiveness of Shariʿah and found it imper-
ative to deny similitude of any other possibility. He held that the Divine legislation should
be pure from any doubt of failure in providing the faithful with sufficient clarity in their
duty to live by the laws of Islam, and in the absence of the Imam jurists are the only class of
people who are capable of determining what those laws are. Apparently, restitution of vio-
lated rights, common interests, rules of trust and deciding on who is authorized to perform
the public duty of commanding right and preventing evil are all legal questions that a jurist
has to answer. Therefore, by utilizing terms of art in logic, Khomeini claimed that wilāyat
al-faqı̄h is a concept whose tas․dı̄q (proof ) can be established by its tas․awwur (imagination). It
goes without saying that Khomeini reserved all those matters that were within the exclusive
jurisdiction of the Imam.
One last issue would be what kind of jurist under which circumstances is bestowed with
such vast authority and holds the centre of the legal, political and judicial universe of the Shiʿite
society. Khomeini held that any just mujtahid is potentially an agent of the Imam. However, he
argued that the designation of that jurist as a qualified candidate to hold political authority is
similar to the designation of a jurist as a judge, with all its attendant verification processes.45 This
verification is required, Khomeini argued, because a judgment should be capable of effectuation
and practical implementation. Such execution cannot be accomplished unless the parties have
submitted to the judge’s authority either because of the Imam’s permission or by their prior
consent to a non-licensed judge’s decision. A judge can maintain his office as long as his qual-
ifications remain intact. In other words, he will be disqualified when people find his conducts
or rulings to be incompatible with piety, justness and sufficient knowledge of jurisprudence. All
these limitations, in Khomeini’s view, applied to a jurist who holds the political power.
Khomeini did not elaborate and is ambivalent on the specific issue of the Imam’s licence. It
is possible to argue that in his early writings this question was resolved by the candidate’s sta-
tus as aʿlam (the most learned) among all other qualified jurists and to present the proposition
that, in Khomeini’s view, being the most learned is similar to having obtained the Imam’s
licence. Verification of such learned jurists had roots in the concept of marjiʿiyya (being a
source of emulation), which was well developed and practised in the Shiʿi religious culture.
At later stages of life, after major Grand Ayatullahs refused to actively engage in politics,
Khomeini held Ijtihād sufficient.
The Imam’s licence, among other important but yet-to-be juristically clarified issues, has
become a dividing factor between two competing theories in Iran. Proponents of the first
theory, known as nas․b (appointment) – mostly active members of the political establishment –
overstretch the textual indicators and hold that Ijtihād meets the standard of licence and
appointment by the Imam. Whereas the nakhb (election) theory, supported mostly by
non-partisan jurists, maintains that the appointment theory:
1) is ill-devised;
2) invokes weak traditions; and
3) fails to remain loyal to the very same rationale that Khomeini offered, which finds the
people’s continued verification, consent and acceptance a key factor in not only the scope
of jurists’ authorities, but also for the establishment of a just legitimate rule in the absence
of the Imam.
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Amirhassan Boozari
Simply, the election theory adheres to the constitutionalist Us․ūlı̄ model. Muntaziri and
al-Sistani are among the unsurpassable prominent figureheads of the nakhb theory.
Obviously, Khomeini’s position as the Leader of the 1979 Islamic Revolution and later the
Supreme Leader of the Islamic Republic was largely established and remained authoritative by
both his aʿlamı̄yya (being the most learned) and immense popular support. Khomeini concurred
with the constitutionalist Us․ūlı̄s’ application of the least amount of certainty rationale in the
sense that only a jurist whose qualifications have been verified by the people and has received
their consent qualifies to hold both offices of political and judicial authorities. The most con-
troversial opinion of Khomeini, which stands in complete opposition to the constitutionalists’
views, is the unlimited scope of a thusly designated jurist’s authority – excepting the exclusive
authority of the Imam – which makes his theory subject to the critics’ vociferous objections.
Al-Ansari remained a scholar only and was uninterested in anything political throughout
his entire life, whereas the juridical reactions of Akhund, Naʿini and Khomeini were heav-
ily informed by the tumultuous social and political conditions in which they lived. These
dynamics remain vital in order to see which model will finally prevail: the constitutionalist
Us․ūlı̄ model or wilāyat al-faqı̄h. There is an important caveat: Khomeini’s theory has to pass
the additional test of the socio-political impacts of his leadership during the first ten years of
the Islamic Republic of Iran.
Notes
1 Paul Bremer was the head of the US-led transitional government in Iraq after the US occupation,
2003–2004.
2 Stefan Talmon, The Occupation of Iraq, Volume Two: The Official Documents of the Coalition Provisional
Authority and the Iraqi Governing Council (London: Hart Publishing, 2013), 1421, Document 582.
Fatwa was issued on 26 June 2003.
3 I do not intend to discuss these two international law theories at length here. It is suffice to say that
the United States and the United Kingdom, according to UNSC Res. 1483, paras 4–5, had already
placed themselves under the law of belligerent occupation. For further arguments and references,
see, in general, Andrew Arato, Constitution Making Under Occupation: The Politics of Imposed Revolu-
tion in Iraq (New York: Columbia University Press, 2009), especially pages 25–8.
4 Arato, a Columbia university professor and prominent authority in constitutional theory, was ap-
parently perplexed by Sistani’s influence. He wrote: ‘It is a great paradox of the recent constitutional
history of Iraq that it was autonomous political and social action on behalf of popular (or populist)
democratic constitution making that was to put an end to the open constitutional usurpation of the
CPA, putting the process in a channel where it was arguably compatible with creatively interpreted
international regulation’. See Arato, Constitution Making, 28.
5 See Talmon, Occupation of Iraq, 1422–3, Documents 584–6.
6 See, e.g., Qurʾan, 16:90, 17:26, 2:177, 2:215, 2:83, 4:36, 4:7–8, 9:23–4, 9:113–14, 4:135, 6:152, 33:6,
and several other verses. For a reliable analysis, see Wilfred Madelung, The Succession to Muhammad:
A Study of Early Caliphate (New York: Cambridge University Press, 1997), 1–27.
7 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University
Press, 2001), 27; Hossein Modarressi, Kharāj in Islamic Law (London: Anchor Press Ltd, 1983), 155;
Hossein Modarressi, Crisis and Consolidation in the Formative Period of Shiite Islam (Princeton, NJ:
The Darwin Press, 1993), 6. Hereafter, internal citations in English sources are omitted.
8 Muhammad Husayn Tabatabaʾi, Shi’ite Islam, trans. and ed. Seyyed Hossein Nasr (Albany, NY:
SUNY, 1977), 184.
9 Qurʾan 57:25 reads: ‘We have surely sent apostles with clear signs, and sent with them the Book and
the Balance, so that men may stand justice’.
10 Hasan ibn Yusuf al-Mutahhar Al-Hilli (d. 726/1325), Kashf al-Murad fi Sharh Tajrid al-Iʿtiqad, com-
ment by Jaʿfar Subhani (Beirut: Al-Amirat, 1427/2006), 109.
11 Ibid., 106 (al-luţfu huwa mā yakūnu al-mukallaf maʿahu aqrabu ilā fiʿl al-ţāʿat wa baʿdihi min fiʿl al-
maʿs․ı̄ya, wa-lam yakun lahu ․haz
․․zan fı̄ al-tamkı̄n, wa-lam yablughu ․hadd al-Iljāʾ).
386
12 According to Shiʿi theologians, creation of water is not a Divine grace. True, it makes ablution
possible, and by ablution one gets closer to perform an act of obedience (prayer). But water by and
of itself does not induce ablution unless one decides to use it for ablution.
13 Mahdi Haʾiri Yazdi, Hikmat wa-Hukumat (London: Shadi Publishing, 1995), 136.
14 This is a brief description of what Shiʿi theologians-jurists have discussed on the concept of luţf and
formulated it as: ‘ann al-takālı̄f al-samʿı̄yyāt alţāfu fı̄ al-takālı̄f al-ʿaqlı̄yyat’ (revelatory duties are graces
provided for [the intellect to discern] rational duties), Al-Hilli, Kashf al-Murad, 155. For more
sources, see Amirhassan Boozari, Shiʿi Jurisprudence and Constitution: Revolution in Iran (New York:
Palgrave Macmillan, 2011), 158 fn. 41.
15 Boozari, Shiʿi Jurisprudence, 36.
16 Ibid.
17 Ansari, ʿImāmat,’ in Daʿirat al-Maʿarif-i Buzurg-i Islami¸ ed. Kazem Musavi Bojnurdi, vol. 10
( Tehran: Markaz Daerat ol-maʿaref-e Bozorg-e Eslami, 2001), 139.
19 Muhammad Riza Al-Muzaffar (d. 1384/1964), ʿAqaʾid al-Imamiyya (Qum: Muʾassisat al-Imam Ali,
1417/1996), 309–12.
20 The phrase literally means ‘discovery of the truth in something’. For more, see Boozari, Shiʿi Juris-
prudence, 10, 131–4.
21 Hossein Modarressi, An Introduction to Shiʿi Law: A Bibliographical Study (London: Ithaca Press,
1984), 24.
22 Mahdi Haʾiri Yazdi, Hikmat wa-Hukumat, 141.
23 Qurʾan, 57:25.
24 It is the prevailing opinion of the Imami Shiʿite jurists that a society without an Imam is on the brink
of sedition, mischief and contention. For citations, see Boozari, Shiʿi Jurisprudence, 172, fn. 46 and 47.
25 Al-Hilli, Kashf al-Murad, 182.
26 Imam ʿAli, Nahj al-Balāgha (Peak of Eloquence), trans. Sayed Ali Reza (New York: Tahrike Tarsile
Qurʾan Inc., 2002), Sermon 3, 106.
27 ‘One who adopts despotism in opinion, gets ruined and he who seeks other individuals’ opinions,
shares in their wisdom’. ‘One who attains power, becomes self-absorbed and ignores others’. Nahj
al-Balagha, Short Remarks 160–1 (translations are mine).
28 Boozari, Shiʿi Jurisprudence, 53–62, especially 53–5.
29 Madelung, Succession to Muhammad, 275–7, 310.
30 ‘ʿAli’s Instructions to Malik al-Ashtar’, in A Shi’ite Anthology, ed. and trans. William Chittick (New
York: SUNY, 1981), 69.
31 Boozari, Shiʿi Jurisprudence, 66–71.
32 For more on the just sultanate theory, see ibid., 37–43.
33 For a complete jurisprudential analysis of the constitutionalist Us․ūlı̄ theory, and infra citations for
it, see ibid., 45–152.
34 Major Us․ūlı̄ figures such as Grand Ayatullahs Khuʾi and al-Sistani hold this view. Ayatullah Khuʾi
also excludes adjudication from the jurists’ exclusive scope of authority and limits it to issuing fatwa
only.
35 Ayatullah Khomeini, Al-Ijtihad wa-l-Taqlid (Tehran: Matbaʿat Muʾassisat al-ʿUruj, 1376/1997), 18–20.
36 Leslie Green in H. L. A. Hart, The Concept of Law, 3rd edn, intro. Leslie Green (Oxford: OUP,
2012), xv.
38 Al-Allamah Al-Hilli, Irshad al-Adh-han ila Ahkam al-Iman, vol. II (Qum, Iran: Qum Seminary,
1410/1989), 138.
39 Abu Jaʿfar Muhammad b. Hasan al-Tusi (d. 460/1067), Al-Khilaf, vol. VI (Qum, Iran: Qum
Seminary, 1407/1986), 241–2.
40 Ayatullah Khomeini, Tahrir al-Wasila (Tehran: Muʾassisat Tanzim va Nashr Athar al-Imam
K homeini, 1412/2000), 825.
41 For a complete analysis of al-Naraqi’s arguments, see Boozari, Shiʿi Jurisprudence, 90–4.
42 Ibid., 66–70.
43 Ibid., 106.
4 4 Boozari, Shiʿi Jurisprudence, 104.
45 Ayatullah Khomeini, Tahdhib al-Us․ūl, reported by Jaʿfar Subhani, vol. III (Qum, Iran: Ismaʿiliyan,
1382/1962), 575.
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Amirhassan Boozari

Ayatullah Khomeini. Tahdhib al-Usul, reported by Jaʿfar Subhani, vol. III (Qum, Iran: Ismaʿiliyan,
1382/1962).
Hilli, Hasan b. Yusuf al-Mutahhar al- (d. 726/1325). Kashf al-Murad fi Sharh Tajrid al-Iʿtiqad, comm.
Jaʿfar Subhani (Beirut: Al-Amirat, 1427/2006).
Madelung, Wilfred. The Succession to Muhammad: A Study of Early Caliphate (New York: Cambridge
Muzaffar, Muhammad Riza al- (d. 1384/1964). ʿAqaʾid al-Imamiyya (Qum, Iran: Muʾassasat al-Imam
Ali, 1417/1996).
Tabatabaʾi, Muhammad Husayn. Shiʿite Islam, trans. Seyyed Hossein Nasr (Albany, NY: SUNY, 1977).
Yazdi, Mahdi Haʾiri. Hikmat wa-Hukumat (London: Shadi Publishing, 1995).
388
23
Codification, legal borrowing and
the localization of ‘Islamic law’
Guy Burak
This chapter seeks to explore the nature and implications of the codification(s) of Islamic
law. In the scholarship on Islamic law and its history, the codification of Islamic law is often
associated with ‘modernity’, legal borrowing and the rise of the nation-state across the Is-
lamic world. The following pages are an attempt to examine the relationships between these
terms and processes. The chapter is not a historical survey of the codification of Islamic law
in different parts of the Islamic world, although I will refer to concrete examples. Instead,
the essay will focus on the conceptual issues that figure prominently in the historiography of
Islamic law, mostly in the 19th and the 20th centuries.
The first section examines the idea of a code, as a historical phenomenon and as an ana-
lytical concept. Based on this examination, each of the following sections intends to discuss
a different aspect of codification. The second section discusses the importance of states and
non-jurists in the codification process and raises questions about the association of codifica-
tion with ‘modernity’ and the modern period by looking at earlier, pre-modern codification
projects that were initiated by rulers and states across the Islamic world. At the same time,
the continuity across the ‘pre-modern’/‘modern’ divide draws attention to the semiotics
of codification. Importantly, the involvement of states and the creation of legal spheres
in which ‘Islamic law’ can be applied invite us to consider the impact these developments
had on the very category of ‘Islamic law’. The third section turns to the meaning different
actors attributed to codification in the modern period and situates the study of codification
in the broader context of legal borrowing (or legal transplants). The forth section looks at
the contribution of Islamic legal codification to the localization of ‘Islamic law’. The fifth
and concluding section aims to explore how codification altered the public and institutional
position of ‘Islamic law’.
1 The quest for a code

Most accounts of Islamic legal codification point to the significance of the Ottoman experi-
ments with codification over the course of the 19th century, starting with the Land and Penal
Codes of 1858 up to the quite famous civil code, the Mecelle (or Mecelle-i Ahkam-i ʿAdliyye),
two decades later. While scholars have been debating the extent to which the codes were
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Guy Burak
‘authentically’ Ottoman or responses to European codification projects (a point that will be

discussed in greater detail below), it is evident, as Avi Rubin has argued recently, that the
Ottoman codification project should be understood as part of a global codification trend
that took place simultaneously in several centres across the world.1 From the perspective
of Islamic legal history, the Mecelle is of particular significance. Compiled by a committee
of jurists led by the renowned jurist and statesman Ahmed Cevdet Paşa (d. 1312/1895), the
Mecelle is frequently referred to as the first attempt of a state to codify Islamic (more specifi-
cally, Hanafi) jurisprudence. While some members of the Ottoman elite suggested translat-
ing the French Civil Code and applying it throughout the empire, the opinion of jurists who
thought that the Ottoman civil code should draw on Islamic jurisprudence prevailed.2 The
committee selected the opinions from ‘the most reliable works’ of the Hanafi school and, in
some cases, the opinions that were ‘more suitable for the needs of our times’.3 Indeed, in the
following decades and centuries, jurists across the Islamic world were inspired by the Mecelle
and attempted to produce their own codes.
The historical interest in codification has been mirrored in the historiography. Scholars
of codification of Islamic law have devoted considerable attention to the emergence of legal
codes throughout the Middle East and the Islamic world more generally. In their studies of
codification of Islamic law, scholars have often looked for a specific type of document, similar
to European codes (such as the Napoleonic legal code). In such a document, the contending
views and multivocality of Islamic jurisprudence are suppressed in favour of a single opinion
and the numbered articles are organized thematically. Moreover, significant aspects of Is-
lamic jurisprudence, most notably rules concerning rituals (ʿibādāt), were not included in the
code.4 However, different legal codes vary in the extent to which they cover the remaining
spheres of law.
Consider, for example, the late 19th-century Egyptian codification of personal status
law (al-ah․kām al-sharʿiyya fı̄ al-ah․wāl al-shakhs․iyya). Inspired to a considerable extent by the
French experience with codification of Islamic jurisprudence in Algeria earlier in the 19th
century, Muhammad Qadri Pasha (d. 1306/1888), roughly a contemporary of the aforemen-
tioned Cevdet Paşa, published the Egyptian code of personal status according to the Hanafi
jurisprudence in 1875, after a failed attempt by the Egyptian ruler Khedive Ismaʿil to initiate
the compilation of a civil law code similar to the Mecelle in Egypt. In the following decades,
several Egyptian codes that were based on al-Qadri’s code were published.
Much like the Ottoman Mecelle, Qadri’s code was an attempt to ‘(re)construct […]
Hanafi jurisprudence in the form of positive law, as a code’. 5 Intended as a reference
manual in the newly founded Mixed Courts, the code drew heavily on what Qadri con-
sidered the predominant view (arjah․ al-aqwāl) of the Hanafi school of law. In so doing, in
the words of Kenneth Cuno, Qadri eliminated ‘the lack of uniformity [of Hanafi juris-
prudence] so as to make Muslim family law legible to foreigners and Egyptians who were
trained in French law’.6 Qadri’s code consisted of 647 numbered articles, which were
divided into chapters and sections (138 pages in the printed edition). More importantly,
the code stated the preferred rule, but did not dwell on the different opinions within the
Hanafi tradition concerning the issue at stake or the jurists’ reasoning that led them to
this ruling. In short, ‘Qadri’s code may have made Muslim family law appear to be an
unvarying set of rules’.7
Consider the following example. Hanafi jurists had been debating the question of a wom-
an’s right to arrange a marriage contract on her own. While some jurists argued that a legally
capable woman had an absolute right to marry on her own except in the case of the unsuit-
ability of the groom (in which case her guardian could intervene), others argued that the
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Codification, legal borrowing, localization
marriage was valid regardless of the unsuitability of her future husband. A third view argued
that a woman could not contract a marriage on her own without her guardian’s consent.
In his code, Qadri endorsed the view that a legally capable woman could contract her own
marriage without the intervention of the guardian, assuming that her husband is suitable and
that the dower is at the going rate. This was the preferred opinion at the time, but Qadri
nevertheless did not mention the alternative views in the code.
Moreover, codifiers at times transgressed the doctrinal boundaries of the schools of law.
In some cases, codifiers picked rules from different Sunni jurisprudential traditions (a prac-
tice known as takhayyur or talfı̄q).8 In other cases, they chose to interpret the Qurʾan and the
Prophetic traditions directly, while overlooking centuries of jurisprudential and hermeneutic
debates among jurists.9
Although – or perhaps because – the legal codes considerably reduced the plurality of
views of the different Islamic jurisprudential traditions, they enjoyed significant popularity
throughout the Islamic world over the course of the late 19th and the early 20th centuries.
This popularity may be understood in the broader, global context, in which legislators and
rulers sought to propagate the ‘legibility and rationality’ of their respective legal systems. Avi
Rubin has recently suggested that these developments, at least in the Ottoman case (but in
other contexts as well), are rooted in the legal response to the growing economic integration
of different parts of the Islamic world into the world economy in the 19th century and, in
some cases, such as in India and Southeast Asia, in response to direct and indirect demands
and expectations of the colonial authorities.10 By the mid-20th century, the legal code had
become a norm. In 1948, for example, the Egyptian jurist ʿAbd al-Razzaq al-Sanhuri (d.
1391/1971) compiled another civil code, which was based on the late 19th-century codes and
incorporated several rules that originated from the Sunni jurisprudential tradition. Syria (in
1949) and Libya (in 1954) based their civil code on al-Sanhuri’s code. At the same time, Iraq,
Kuwait and Jordan’s codes were inspired by the Ottoman Mecelle, as were the codes of other
Muslim countries, such as Malaysia.11
To conclude this section, it is worth pointing to two key issues that figure prominently in
many studies of codification of Islamic law in the 19th and the 20th centuries. The first is the
emphasis on the physicality of the code: students of codification have stressed, quite rightly,
that the code’s mise-en-page and arrangement were evidently different from other genres of
Islamic legal writing.12 Accordingly, most studies of Islamic legal codification in the modern
period have looked for a document or reference manual with specific features. But it is quite
possible that pre-19th-century jurists had a ‘codification mindset’ that did not result in a doc-
ument or a manual. Instead, pre-19th-century jurists may have been interested in specifying
the opinion within the school that jurists need to apply. In so doing, they, too, reduced in
practice the multivocality of the Islamic jurisprudential tradition. In the Ottoman Empire,
for example, members of its highly regularized learned hierarchy were expected to know
what opinions and jurisprudential works to consult on specific issues, although the learned
hierarchy never produced a code.
The second issue that is often emphasized in studies of codification is the unidirection-
ality of the codification project. Studies of Islamic legal codification have tended to present
a narrative, sometimes lamentingly,13 that leads from the plurality of voices and opinions
in the pre-codified Islamic jurisprudential tradition to the succinct and selective nature of
the code. This narrative has tended to overlook the commentaries that jurists wrote about
the legal codes at least in the early decades of Islamic legal codification. Late Ottoman ju-
rists, such as ʿAbd al-Sattar (who was also a member of the Mecelle committee) and Mesut
Efendi,14 wrote commentaries on the Ottoman civil code in which they reinserted the
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code into the Hanafi jurisprudential tradition, in a similar manner to their colleagues in
previous centuries with other abbreviated jurisprudential texts. To put it differently, some
readers and commentators of the code who were well read in the Islamic legal tradition
maintained the multiplicity of voices of the tradition in different genres. While most mod-
ern scholarship has tended to emphasize the emergence of the codes, much less attention has
been devoted to the venues and genres that (re)introduced multiplicity of judicial opinions
around the legal code.15 Parenthetically, one may add that relatively little attention has been
paid to the resistance of jurists to the codification project over the course of the 19th and
20th centuries.
I.
1.1 Whose code and what ‘Islamic law’?

In most histories of codification of Islamic law in the 19th and the 20th centuries, the state –
be it an empire ruled by Muslims (such as the Ottoman Empire), a colonial state (as in North
Africa, much of South East Asia, Central Asia and South Asia), or nation states with different
political regimes – figures quite prominently as the driving force behind the codification
project. For many scholars of Islamic law, the emergence of a state as a central legislator marks
a major rupture in Islamic legal history.
According to many narratives of Islamic legal codification, Islamic jurisprudence be-
fore the modern era (i.e. before the 19th century) was by and large the realm of the jurists
(ʿulamāʾ and fuqahāʾ). Accordingly, Islamic law is often referred to as jurists’ law to differ-
entiate it from other legal regimes where the ruler (the king, prince or ‘the people’) is the
legislator and an important source of legislative authority and legitimacy. According to this
narrative, the predominance of jurists who were independent from the state/ruler in the
process of law making shaped Islamic jurisprudential discourse. Rudolph Peters, for ex-
ample, has argued that the jurists were involved in a scholarly debate, in which conflicting
and often contradictory views were discussed ‘because of differences in understanding the
texts and in the use of the hermeneutical tools, the Shariʿah as laid down by the jurists is
not uniform’.16 The intervention of the state significantly reduced the plurality of views.
Furthermore, Peters interprets the codification project as an attempt to subjugate Islamic
law to the state: ‘Codification [ … ] implies that only the state determines what law is and
that state law is the highest form of law’.17 In a similar vein, Aharon Layish has contended
that ‘the codification of Shariʿah by Muslim legislatures [ … ] brought about the transfor-
mation of Shariʿah from “ jurists’ law” [. . .] to “statutory law” [ … ]. This transformation
entails profound implications the importance of which is the deprivation of the fuqahāʾ of
their “legislative” authority and its investment in secular legislature’.18 What is more, as has
been suggested above, the codification of Islamic law enabled rulers and states to carve out
specific legal spheres and spaces where the codified Islamic law could be applied, such as
personal status law. By carving those spheres, as Husseyn Agrama has pointed out, ‘th[e]
sovereign power of decision is, and has been, an expression of the state’s sovereign powers.
This sovereign power of decision, in turn, is typically vested in state legal authority and the
structure of the rule of law’.19 In other words, codification has to be perceived as a mani-
festation of the state’s sovereignty throughout the Islamic world, and the subjugation of the
jurists to this perception of sovereignty. Moreover, as will be further discussed below, the
codification enabled rulers and states to localize their version of Islamic law and bound it
within the political boundaries of their polity.
392
To be clear, the fact that states and rulers initiated the different codification projects
does not mean that ʿulamāʾ were not involved in those projects. To a considerable extent,
their involvement was required to provide a sense of Islamic legitimacy to the codification
projects. Doubtlessly, some jurists, like Cevdet Paşa, genuinely believed in the importance
of producing an Islamic legal code and were involved in the compilation of the codes. The
emergence of the code, however, meant that jurists were no longer the sole applicants of the
Islamic jurisprudential tradition, and judges, who were not trained as fuqahāʾ/ʿulamāʾ, could
and did apply the code.
One of the more significant outcomes of the processes I have surveyed thus far is that
‘Islamic law’ increasingly became a reified body of substantive rules. Therefore, one cannot
easily speak about the ‘codification of Islamic law’, since the very notion of ‘Islamic law’ is a
product of this codification.20
Paying closer attention to the role the state and legislators who did not hail from the ranks
of the ʿulamāʾ in the codification projects of the 19th and 20th centuries may also enable us to
situate these projects in the broader context of the relationship between the jurists and rulers/
states throughout Islamic history. As Maribel Fierro has recently argued,
Codification can also have a more general meaning, that of the creation of codes in
the sense of compilations of written rules and regulations collected and arranged in a
systematic way, usually by subject. Codification in this general sense did exist in the
Muslim world, starting from the ‘canonical’ compilations of hadith (traditions of the
Prophet) [… ].21
Indeed, attempts by rulers to intervene in the doctrines of Islamic jurisprudence and

produce codes of sorts may be seen as early as the eighth century. Quite famously, the Ab-
basid vizier Ibn al-Muqaffaʿ (d. 139/757) tried (unsuccessfully) to convince the Caliph al-
Mansur to produce a jurisprudential code for his empire.22 Furthermore, Fierro has pointed
to attempts to codify Islamic law in the Islamic West. The tenth-century Fatimid caliph
al-Mansur (r. 946–953), for instance, issued a compilation of laws that was fairly close to a
legal code. However, these codification projects were the exception and not the rule in the
pre-Ottoman (or, arguably, the pre-Mongol) period, as jurists asserted their independence
from the rulers in determining the doctrines of Islamic jurisprudence.23
The post-Mongol period in the eastern Islamic lands (from the 13th century onwards)
marks a new chapter in the history of the relationship between jurists and rulers. Elsewhere,
I have suggested that the Ottomans and many of their post-Mongol contemporaries sought
to regulate the doctrines within the Hanafi school of law that members of the imperial
learned hierarchy were supposed to consult and apply. The citation practices of the imperial
learned hierarchy captures this development: provincial muftis who were appointed by the
Ottoman dynasty, for instance, were expected to cite the jurisprudential texts they relied on
in their rulings. As I have suggested above, although this doctrinal regulation did not result
in a physical code, it contributed to the marginalization of certain views within the Hanafi
Madhhab. The Ottoman case, therefore, may offer an example of a codification project with-
out a code.24
The intervention of the state/ruler also illustrates the difference between these codifi-
cation projects and other types of canonization of Islamic law, such as the rise of the legal
compendium (mukhtas․ar) that Knut S. Vikor has proposed to consider as a predecessor to
the Ottoman Mecelle (and, by extension, to other Islamic legal codes).25 While one could
argue that codification is a form of canonization, not every type of canonization requires the
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intervention of the ruler/state. Despite the institutional difference between canonization

and codification, as the above - mentioned commentaries on the Ottoman Mecelle suggest,
it is quite possible that many across the Islamic world discerned this continuity between the
mukhtas․ar and other legal compendia and the codification projects.
2 Legal borrowing?
The possible continuity between canonization and codification and between earlier, pre-19th-
century forms of codification and the 19th- and 20th-century codification projects have led
several scholars to question the perception of the codification projects as foreign to the Islamic
world.26 However, as has been argued above, several codification projects, especially in the sec-
ond half of the 19th century, were explicitly inspired by – or borrowed from – contemporary
European codes, most notably the French Napoleonic codes. Historiographically, at stake is
not simply ‘a quest for origin’, but an attempt to explain how codifiers, their contemporaries
and future generations of jurists and historians perceived their codification projects.
In recent decades, scholars who studied legal reforms and the circulation of the notion of
legal codification throughout the Islamic world, such as Donald Horowitz27 for Malaysia and
Avi Rubin 28 for the Ottoman Empire, have sought to explain this circulation through the
analytical lens of legal borrowing or legal transplants.29 To be sure, as Avi Rubin has pointed
out in his study of legal borrowing in the 19th-century Ottoman Empire, numerous, if not
most, legal systems have always borrowed to varying extents, implicitly or explicitly, from
other legal systems. But as a conceptual framework, the lens of legal borrowing has enabled
scholars to examine the dynamics between the ‘indigenous’ and the ‘foreign’. The main dif-
ference between the employers of this framework is the extent to which they understand it as
an ontological description of both the ‘indigenous’ and the ‘foreign’.
The study of the Ottoman codification project provides a useful example. Several stu-
dents of the Mecelle have tried to trace its origin. In his discussion of the Ottoman Mecelle,
for example, Joseph Schacht saw it as an outcome of ‘the influence of European ideas’ and
‘not an Islamic but a secular code’; while Majid Khadduri and Herbert Liebensky contended
that the Mecelle is not a code in the European sense but a digest of existing rules of Islamic
law.30 Avi Rubin, on the other hand, has offered a third approach. Indeed, he has argued, late
Ottoman codifiers explicitly looked west and borrowed from the French codes. However, it
is important to stress that the Ottoman (as well as contemporary and later) legal borrowing
was selective:
[w]hile the earlier versions of the criminal code contained a substantial presence of the
Shariʿah, and the final version was clearly derived from Napoleonic law, it was not a
wholesale adoption of the French code. The Ottoman reformers chose to leave out a
number of articles that were part of the French code, and added others as they saw fit.31
Accordingly, Rubin has suggested abandoning the ‘either or’ approach with regard to the or-
igin and source of inspiration of the Ottoman civil code, and to see the Mecelle as a ‘syncretic
artifact’, containing both Islamic and European features.
Rubin’s interpretation of the Ottoman codification project as a ‘syncretic artifact’ (as well
as Schacht’s and Khadduri and Liebensky’s approaches to the code) is based on an analytical
categorization of certain features as ‘Islamic’ (or ‘indigenous’) and ‘European’ (or ‘foreign’),
a categorization that is imposed to a significant extent by the historian. But in recent years,
the semiotics of law and jurisdiction, that is, the focus on the ‘Islamic’ meaning ascribed to
394
legal concepts and practices, has received a greater deal of scholarly attention. As Iza Hussin
has recently pointed out,
Identification as a ‘Muslim state’ is self-selective and shifting: in some cases a state may be
‘Muslim’ in matters of public observances, such as the commemoration of state holidays
but not in others – for example, the recognition of the Qurʾan as a source of legislation;
in some cases both the state and the groups that oppose it claim to represent Islam. Both
the categories of ‘Islamic law’ and ‘Muslim state’, therefore, revolve around understanding
of authority, legitimacy, and jurisdiction. Who decides the meaning of Islamic law? Who
judges where it begins and ends, and where the role of the state is in Islamic law? Is Islamic
law a part of the state or autonomous from it? Key to understanding these questions is that
Islamic law is a site of contest and a realm for the articulation of state–society relationships.32
Put differently, the ‘Islamicness’ and ‘foreignness’ of the codes were historically contin-
gent and interpreted differently by different actors. The discernible continuities between, for
instance, the mukhtas․ars and pre-19th-century Islamic codification projects and the 19th- and
20th-century legal codes raise the possibility that many codifiers and their contemporaries
saw the codes as fully ‘Islamic’. Indeed, the introduction of the Mecelle refers to an ‘Islamic’
precedent, the 16th-century Egyptian jurist Ibn Nujaym, thus claiming its origins in the
Islamic/Hanafi jurisprudential tradition.33
Finally, the issue of codification of Islamic law and the meaning ascribed to it reminds us that
the ‘Islamic’ meaning of ‘Islamic law’ is far from fixed. By delineating legal spheres and by im-
plementing certain substantive rules in specific legal realms, such as family law, self-proclaimed
Muslim rulers, ruling elites and states (as well as, in some cases, non-Muslim states) have shaped
the manner in which many of their subjects and citizens understand the nature of Islamic law.
3 Codification and the localization of Islamic law

Codification, as an act of sovereignty, was instrumental in producing local versions of ‘Islamic
law’. While this localization of Islamic law is often associated with the rise of the nation state
across the Islamic world, the earlier, pre-19th-century codification, or semi-codification proj-
ects invite us to include other moments of localization of Islamic law that took place in other
polities, such as the Ottoman and Mughal Empires. In any case, it is worth reiterating, the
localization was a result of the intervention of the ruling dynasty or the state.
More generally, the different codification projects throw into sharp relief the tension
between the universal and the local in Islamic legal and theological discourses: while some
trends in Islamic legal and political thought have tended to emphasize the commitment of the
Muslim community to God’s will, which is not territorially bounded, others have been more
concerned with defining political and legal spaces where this will could be implemented. As
Khaled Abou El Fadl has suggested,
[t]he creation [ … ] of a territorial state that is charged with the implementing of the
specific and positive rules of Shari’ah law, [… ] is not an Islamic imperative. In effect, this
position maintains that political boundaries, legal institutions, and territory need not
define that Islamic moral community.34
Indeed, as an ongoing engagement with Revelation, the Islamic tradition(s) have recognized
that the divine message was intended to humanity in general, despite the concrete historical
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circumstances of Revelation (the Prophet was an Arab from a specific tribe who spoke Ar-
abic, hence the Qurʾan refers to itself as an ‘Arabic Qurʾan’). The dividing line was between
those who accepted the revealed divine message of the Prophet and constituted the commu-
nity of believers (the umma) wherever they may reside, and those who rejected the message,
the infidels. To be clear, those jurists never relinquished the ideal of a territorial polity that
implements Islamic law in its domains,35 but they also allowed Muslims who did not live in
such a polity to remain wherever they were as long as they were able to lead their lives in ac-
cordance with the Qurʾan and Sunnah of the Prophet. On the other hand, some jurists devel-
oped a division of the world into two major domains, the Abode of Islam (the lands that were
under Muslim rule) and the Abode of War (the lands that were under non-Muslim rule), and
introduced a geographical divide between believers and infidels. These jurists argued that
Muslims living in lands ruled by non-Muslims should migrate to the Abode of Islam.36
On a somewhat different level, most jurists kept the Muslim community, and not the spe-
cific polity within the Islamic world, their main point of reference. Indeed, the considerable
amount of independence from rulers that the jurists maintained enabled Islamic (Sunni) jur-
isprudential discourse to remain what Sheldon Pollock has described as ‘cosmopolitan’. This
is not to say that Islamic (Sunni) jurisprudential thought has not articulated over the centuries
several perceptions of territory and territoriality (beyond the above-mentioned distinction
between the Abode of War and the Abode of Islam). For example, it has recognized the
property rights of Muslims and non-Muslims over their lands and homes. 37 Moreover, jurists
have been willing to accept regional judicial differences and customs (often referred to as ʿUrf
or ʿāda),38 but before the rise of dominant legislating rulers, these concepts referred to local
judicial practices and concepts within the broader, supra-territorial legal sphere of the umma.
The codifying ruling elites significantly altered the relationship between the legal sphere
of the Muslim community and the local political entity. While some codification projects
still nodded to the notion of a broader Islamic community and to the pan-Muslim notion of
divine revelation, the act of codification took place in the context of a territorially bounded
polity that was ruled by a specific sovereign, be it the sultan, a king or ‘the people’. Fur-
ther, since each code produced a specific version of ‘Islamic law’, as codification entailed
selecting certain views and rejecting or marginalizing others, it created local, territorially
bounded versions of ‘Islamic law’ across the Islamic world. The codification-as-localization
of Islamic law and the implementation of the codes were enabled by the different legal insti-
tutions of the state. The proliferation of religious and legal establishments with standardized
and hierarchical career and training tracks on the one hand, and the state’s legal system on
the other were instrumental in this process. These establishments provided the state with
Islamic legitimacy (although this legitimacy was occasionally contested). 39 In addition, of-
ficially appointed juristconsults (muftis) and judges were also important in the codification
process, as they emphasized in their rulings certain legal views while marginalizing others.
Moreover, the legal system followed and promoted their codes in its rulings and procedures.
In so doing, it propagated to its employees and the litigants the code’s particular interpre-
tation of Islamic law.
Finally, a few words about the relationship between the different Islamic legal codifi-
cation projects and the rise of the nation state as the main form of political organization
throughout the Islamic world are in order. As I have already suggested, certain codification
projects of Islamic law predated the rise of the nation state. However, the codification and the
localization of Islamic law served the emerging nation states in cementing the political and
legal boundaries of the state. Moreover, in terms of legitimacy, the codification allowed the
nascent nation states to make certain claims about their role as protectors and promoters of
396
an Islamic conduct in public life. This is an important tension of the codification projects of
Islamic jurisprudence, as will be discussed in the concluding section of this chapter.
4 Conclusion: codification, centralization and

marginalization of ‘Islamic law’
This chapter has examined the relationships between several key concepts and processes
that are often associated with the codification of Islamic law. I have suggested that sev-
eral codification projects predated the modern period and its codification projects and, in
many ways, can be perceived as their precursors. The continuity between the pre-modern
and modern codification projects, I have argued, may raise questions with regard to the
meaning (or, rather, multiple meanings) ascribed to codification in different historical con-
texts by different actors. Moreover, I have pointed to the contribution of the codification
projects to the emergence of local versions of ‘Islamic law’. This localization took place in
different political organizations, from pre-modern empires, such as the Ottoman Empire,
to the modern nation states. But whatever the political organization was, codification was
an act of sovereignty that allowed sovereigns to organize and delineate legal spheres in
their domains.
The concluding question of this chapter, then, is whether or not the different codifica-
tion projects of Islamic law led to the marginalization of Islamic law throughout the Islamic
world. Some scholars of Islamic law, such as Peters, have focused on the institutional history
of Islamic law in the late 19th and the 20th centuries and concluded that the codified version
of Islamic law is a pale shade of the non-codified complexity and plurality of the Islamic
jurisprudential discourse. Furthermore, the codified version has been applied selectively in
a fairly limited number of legal spheres. Seen from this perspective, Islamic law has been
marginalized and allocated to certain legal enclaves. On the other hand, as Iza Hussin has re-
cently argued, the institutional support of the state and its legal system rendered ‘Islamic law’,
albeit in its codified versions, into a central element of the quest for legitimacy of the state.40
Moreover, the reified category of ‘Islamic law’ enabled its proponents to promote what they
considered Islamic substantive rules within different legal and political systems that were not
necessarily considered ‘Islamic’, such as colonial states and secularist republics.
Notes
1 Avi Rubin, ‘Modernity as a Code: The Ottoman Empire and the Global Movement of Codifica-
tion’, Journal of the Economic and Social History of the Orient 59(5) (2016): 825–56.
2 Avi Rubin, ‘Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth
Century’, Continuity and Change 22(2) (2007): 282–3. Numerous studies have been published about
the Mecelle. For a recent evaluation of this codification project see Samy Ayoub, ‘The Mecelle,
Shari’ah, and the Ottoman State: Fashioning and Refashioning of Islamic Law in the Nineteenth
and Twentieth Century’, Journal of the Ottoman and Turkish Studies Association 2(1) (2015): 121–46.
3 One of the commentators on the Mecelle added to the code’s articles the citations (nuqūl) from
the Hanafi ‘books of high repute’, thus emphasizing the continuity between the code and the
(Ottoman) Hanafi jurisprudential tradition.
4 In some cases, as in the late Ottoman Empire, jurists made a distinction between codified Islamic
law and the non-codified Islamic law. As Susan Gunasti has recently pointed out, ‘In the late
Ottoman context, as elsewhere in the Muslim world, Shariʿah acquired the meaning of a legal code
and its invocation came to be associated with constitutionalism. Fiqh, by contrast, came to signify
the Islamic legal tradition – a tradition that was well defined, had a clear corpus, and had authority
figures with whom one must interact. Supporting Shariʿah was about conferring legitimacy on
the constitution, whereas supporting fiqh was more closely associated with the role of Islam in the
397
Guy Burak
law-making process’. Susan Gunasti, ‘The Late Ottoman Ulema’s Constitutionalism’, Islamic Law
and Society 23(1–2) (2016): 98–9.
5 Kenneth M. Cuno, Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early
Twentieth-Century Egypt (Syracuse, NY: Syracuse University Press, 2015), 166.
6 Ibid., 167.
7 Ibid., 169.
8 It is worth stressing that, as Ahmed Fekry Ibrahim has recently demonstrated, the practice of
takhayyur and talfı̄q predated the codification projects of the 19th century. See Ahmed Fekry Ibra-
him, Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse, NY: Syracuse University
Press, 2015).
9 Aharon Layish, ‘The Transformation of the Shariʿa from Jurists’ Law to Statutory Law in the Con-
temporary Muslim World’, Die Welt des Islams, New Series 44(1) (2004): 85–113, 95.
10 Avi Rubin, ‘Modernity as a Code’, in The Politics of Islamic Law: Local Elites, Colonial Authorities, and
the Making of the Muslim State, ed. Iza R. Hussin (Chicago: University of Chicago Press, 2016). For
the codification of the Hanafi tradition in Afghanistan, see Faiz Ahmed, ‘In the Name of a Law:
Islamic Legal Modernism and the Making of Afghanistan’s 1923 Constitution’, International Journal
of Middle East Studies 48(4) (2016): 655–77.
11 Ron Shaham and Aharon Layish, ‘Tashriʿ’, in The Encyclopedia of Islam, 2nd edn; and Iza R. Hussin,
The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim State ( Chicago:
University of Chicago Press, 2016), 150.
12 See, for example, Tobias Heinzelmann, ‘The Ruler’s Monologue: The Rhetoric of the Ottoman
Penal Code of 1858’, Die Welt des Islams 54 (3–4) (2014): 292–321; Cuno, Modernizing Marriage,
158–84; and Rubin, ‘Modernity as a Code’.
13 See, for example, Wael B. Hallaq, Sharı̄ʿa: Theory, Practice, Transformation (New York: Cambridge
University Press, 2009), 357–70.
14 ʿAbd al-Sattar al-Quraymi, Sharh al-Qawaʿid al-Kulliyya: Sharhan li-Qawaʿid al-Majalla ( Jeddah,
Saudi Arabia: Maktabat Rawaʾiʿ al-Mamlaka, 2010); Mesut Efendi, Mirʾat-i Mecelle (Istanbul:
Matbaʿa-yi Osmaniye, 1881). Mesut Efendi included citations from the ‘authoritative books’ of the
Hanafi jurisprudential tradition. This is a practice that members of the Ottoman imperial learned
hierarchy had been employing for centuries. In the endorsement (takrîz) Cevdet Paşa wrote for
ʿAbd al-Sattar al-Quraymi’s commentary, he weaved al-Quraymi’s commentary in the Hanafi
tradition by employing and manipulating elemts from the titles of major Hanafi legal works.
15 One could compare the commentaries on the codes to commentaries of abridged legal manuals
(mukhtas․ar) in the pre-modern period. In the centuries following the compilations of these man-
uals, numerous commentaries were written. Many of these commentaries situated the opinions
cited in the mukhtas․ar within the broader range of opinions of the school. For a comparison of the
codes with the mukhtas․ars see Knut S. Vikor, Between Good and the Sultan: A History of Islamic Law
( London: Hurst, 2005), 230–1. See also Mohammad Fadel, ‘The Social Logic of Taqlid and the Rise
of the Mukhtasar’, Islamic Law and Society 3(2) (1996): 193–233.
16 Rudolph Peters, ‘From Jurists’ Law to Statute Law or What Happens When the Shariʿa is Codified’,
in Shaping the Current Islamic Reformation, ed. B. A. Roberson (London: Frank Cass, 2005), 83.
17 Ibid., 88.
18 Layish, ‘The Transformation of the Shariʿa’, 85–6.
19 Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt
(Chicago: University of Chicago Press, 2012), 226.
20 Hussin, Politics of Islamic Law, ch. 3.
21 Maribel Fierro, ‘Codifying the Law: The Case of the Medieval Islamic West’, in Diverging Paths?
The Shapes of Power and Institutions in Medieval Christendom and Islam, ed. John Hudson and Ana
Rodriguez (Leiden: Brill, 2014), 100–1.
22 Muhammad Qasim Zaman, ‘The Caliphs, the ʿUlamaʾ, and the Law: Defining the Role and Func-
tion of the Caliph in the Early ʿAbbasid Period’, Islamic Law and Society 4(1) (1997): 1–36.
23 Fierro, ‘Codifying the Law’, 99–118.
24 Guy Burak, The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Em-
pire (New York: Cambridge University Press, 2015).
25 Vikor, Between God and the Sultan, 230–1.
26 Ibid.; Fierro, ‘Codifying Islamic Law’; Burak, The Second Formation.
398
27 Donald L. Horowitz, ‘The Qurʾan and the Common Law: Islamic Law Reform and the Theory of
Legal Change’, The American Journal of Comparative Law 42(2) (1994): 233–93.
28 Rubin, ‘Modernity as a Code’.
29 Alan Watson famously coined this term: see Legal Transplants: An Approach to Comparative Law
(Charlottesville: University Press of Virginia, 1974).
30 Both views are cited and discussed by Abi Rubin in his ‘Legal Borrowing and Its Impact on
Ottoman Legal Culture’, 283.
31 Ibid., 282.
32 Hussin, The Politics of Islamic Law, 15.
33 Mecelle-yi Ahkam-i Adliyya (Istanbul: n.p., 1901–4), 3.
34 Khaled Abou El Fadl, ‘The Unbounded Law of God and Territorial Boundaries’, in States, Nations
and Borders: The Ethics of Making Boundaries, ed. Allen Buchanan and Margaret Moore (New York:
35 Ibid., 219.
36 Abou El Fadl has argued that this divide was quite ambiguous in the writings of many pre-modern
jurists. Certain jurists allowed Muslims to reside in what was considered the Abode of War as long
as these lands afforded them safety and freedom to practise their religion. Ibid., 218.
37 Ibid., 214–28.
38 See, for example, Gideon Libson, ‘On the Development of Custom as a Source of Law in Islamic
Law’, Islamic Law and Society 4(2) (1997): 131–55.
39 Burak, The Second Formation of Islamic Law; Hussin, The Politics of Islamic Law; Maurits S. Berger,
‘Shari’ah and the Nation State’, in The Ashgate Research Companion to Islamic Law, ed. Peri Bearman
and Rudolph Peters (Farnham, Surrey: Ashgate Publishing Ltd, 2014), 223–34.
40 Hussin, The Politics of Islamic Law.

Abou El Fadl, Khaled. ‘The Unbounded Law of God and Territorial Boundaries’. In States, Nations
and Borders: The Ethics of Making Boundaries, ed. Allen Buchanan and Margaret Moore (New York:
Ahmed, Faiz. ‘In the Name of a Law: Islamic Legal Modernism and the Making of Afghanistan’s 1923
Constitution’. International Journal of Middle East Studies 48(4) (2016): 655–77.
Cuno, Kenneth M. Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-
Century Egypt (Syracuse, NY: Syracuse University Press, 2015), esp. ch. 5.
Fierro, Maribel. ‘Codifying the Law: The Case of the Medieval Islamic West’. In Diverging Paths? The
Shapes of Power and Institutions in Medieval Christendom and Islam, ed. John Hudson and Ana Rodri-
guez (Leiden: Brill, 2014), 98–118.
Heinzelmann, Tobias. ‘The Ruler’s Monologue: The Rhetoric of the Ottoman Penal Code of 1858’.
Die Welt des Islams 54 (3–4) (2014): 292–321.
Hussin, Iza R. The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim
State (Chicago: University of Chicago Press, 2016).
Layish, Aharon. ‘The Transformation of the Shariʿah from Jurists’ Law to Statutory Law in the Con-
temporary Muslim World’. Die Welt des Islams, New Series 44(1) (2004): 85–113.
Peters, Rudolph. ‘From Jurists’ Law to Statute Law or What Happens When the Shariʿah is Codified’.
In Shaping the Current Islamic Reformation, ed. B. A. Roberson (London: Frank Cass, 2005), 81–94.
Rubin, Avi. ‘Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth
Century’. Continuity and Change 22(2) (2007): 279–303.
Rubin, Avi. ‘Modernity as a Code: The Ottoman Empire and the Global Movement of Codification’.
Journal of the Economic and Social History of the Orient 59(5) (2016): 825–56.
399
24
Modern Islamic
constitutional theory
Andrew F. March
Introduction
Constitutionalism is the basic idea that the exercise of governmental powers should be
limited by a basic law (usually but not always written down), and that the legitimacy of
coercive law-making by a government depends on its observing the limitations and rules
established by that more fundamental legal order. A minimal understanding of constitu-
tionalism holds simply that the basic powers of government (legislative, executive, judi-
cial) are assigned to specific offices, organs or institutions (even if just one single office),
and that the exercise of those powers must observe the limits and procedures set out in the
basic law. However, in the modern period it is broadly assumed that ‘constitutionalism’
as a doctrine of legitimate governance implies a separation of the basic governing powers
into distinct organs or branches, and the regulation by law of which competencies are
ascribed to which institutions and how conflicts between the branches are to be resolved
legally. In addition to limitations on the powers of various branches or authorities by the
existence of other branches, constitutionalism is also often associated with limitations
on the power of government as such, particularly in the form of civil or human rights
commitments.
Constitutional theory, however, points to some enduring puzzles about the idea of gov-
ernment limiting itself by law. For one, if law is by definition the command of a sovereign
power that cannot be legally checked by any higher authority, how can the idea of sovereign
authority being limited by law itself be coherent?1 Can this be resolved by distinguishing
between the ‘sovereign’ power to authorize a basic constitutional order and a legally con-
strained ‘government’ that exercises most ordinary legislative power? But even then, can a
people be said to legally bind itself by a constitutional order if, in principle, it can change
this basic law at any time? Moreover, if there is a ‘sovereign people’ that precedes a legally
constituted political order, how can we identify the existence of this people separate from
and prior to that political order? These are some of the most prominent questions and puz-
zles associated with constitutionalism, and we will see that they also arise in modern Islamic
constitutional theory. However, many Islamic constitutional theorists hold that Islamic law
has ways of solving them conceptually.
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Modern Islamic constitutional theory
1 A brief history of modern Islamic constitutional theory

Constitutionalism and constitutional theory have been some of the most active areas of
Islamic legal thought and practice in the modern period. It is not hard to see why this
might be the case. First, important Muslim polities (like the Ottoman Empire, Qajar Persia,
Egypt and Husaynid Tunisia) received their first written constitutions before the period of
direct Western colonial governance. Thus, the problem of constitutionalism received exten-
sive treatment while Islamic legal frameworks still dominated intellectual and political life
in Muslim lands. Second, once Islamist politics emerged as an oppositional force in 20th-
century colonial and post-colonial contexts, its ideological vocabulary was largely juridical.
The concepts of ‘divine sovereignty’ and ‘religion and state’ (dı̄n wa-dawla) as the alternative
to nationalism or socialism directly refer to the institutional and adjudicative structure of the
state. It is, thus, as natural for political Islamists to focus on constitutional themes while out
of power as it might be for Marxists to focus on economic ones. Third, the tensions within
political Islam also largely lend themselves to argumentation over constitutional questions.
If Muslim intellectuals or activists find the utopian theories of thinkers like Mawdudi or
Qutb lacking in subtlety or flexibility, it makes sense that the response might be to develop
alternative theories of what Islam requires in terms of state power, obedience to the Shariʿah
and popular participation in government. Finally, it must be said that the Sunni juridical
tradition, in particular, simply lends itself well to modern appropriation in the area of con-
stitutional law.2 While Islamic empires did not tend to pass down written covenants be-
tween rulers and the ruled, Sunni scholars developed a rich tradition of thinking about ‘the
rules of governance’ (al-ah․kām al-sult․āniyya) and ‘religiously legitimate governance’ (al-siyāsa
al-sharʿiyya). Many of the core themes at the heart of constitutionalism are all to be found in
these texts, even if their institutionalization was often less developed than in their counter-
parts in medieval and early-modern European monarchies.
Historically, it is possible to mark out a few important phases of modern Islamic consti-
tutional theorizing. The 19th-century was a period of profound social and political trans-
formation in lands broadly under the authority of the Ottoman Empire and Qajar Persia.
Somewhat less successful than the codification of many areas of the positive law during this
period, but symbolically important for later debates on Islam and state legitimacy, were
efforts to impose written constitutions on traditional dynastic rulers. These constitutional
documents include those adopted (often briefly) in Tunisia (the 1857 ‘Pact of Security’, fol-
lowed by the 1861 constitution), the Ottoman Empire (1876), Egypt (1882) and, into the 20th
century, Qajar Persia (1906–1911).
At the same time, a number of important intellectuals and statesmen penned defences
of written constitutions that serve as some of the first modern statements of Islamic consti-
tutional theory. Such texts include the articles published by the activist Namık Kemal (d.
1306/1888) in the newspapers founded by the Young Ottomans (particularly H ․ ürriyet and
İbret), Khayr al-Din Pasha’s (d. 1307/1890) Introduction (Muqaddima) to his study Aqwam
al-Masalik fi Maʿrifat Ahwal al-Mamalik (The Surest Path to Knowledge of the Conditions of
States) (1867), the Introduction to the multi-volume history of Tunisia by the bureaucrat-
historian Ahmad b. Abi al-Diyaf (Bin Diyaf; d. 1290/1874), Ithaf Ahl al-Zaman bi-Akhbar
Muluk Tunis wa-ʿAhd al-Aman, as well as various writings on the need for political and
intellectual reform by such figures as Rifaʿa al-Tahtawi (d. 1290/1873), ʿAbd al-Rahman
al-Kawakibi (d. 1320/1902) and Muhammad ʿAbdu (d. 1323/1905).
A second period of Islamic constitutional theorizing was the period right after the
First World War. Two events in this period can be identified as particularly important in
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sparking an intense debate around the meaning of the Caliphate, one political and one
intellectual. The political event is the abolition of the Caliphate by the Turkish National
Assembly on 4 March 1924 (although the Sultanate had been abolished and the last Sul-
tan, Mehmet VI, had departed, in November 1922). The intellectual event is the 1925
publication of al-Azhar-trained scholar ʿAli ʿAbd al-Raziq’s al-Islam wa-Usul al-Hukm:
Bahth fi al-Khilafa wa-l-Hukuma fi al-Islam (Islam and the Foundations of Governance:
A Study of the Caliphate and Government in Islam), which claimed that the Prophet
Muhammad had only been sent as a religious messenger to the world and did not reveal
a political doctrine, and thus called for a strict removal of religious claims from political
life. It is, thus, in the 1920s that we begin to see the first emergence of works forced to
defend Islam’s claim to priority over the political sphere (at this stage still by defending
the obligatoriness of the office of the Caliphate) and to begin to elaborate the balance
between divine and popular sovereignty. Of particular interest here are Rashid Rida’s
al-Khilafa, 3 the critiques of ʿAbd al-Raziq’s treatise by al-Azhar scholars Muhammad
al-Khidr Husayn (Naqd Kitab al-Islam wa-Usul al-Hukm 4) and Muhammad Bakhit al-
Mutiʿi (Haqiqat al-Islam wa-Usul al-Hukm 5) and the treatise by the great Egyptian jurist,
ʿAbd al-Razzaq al-Sanhuri, Fiqh al-Khilafa.6
These debates immediately preceded the founding of the Muslim Brotherhood by Hasan
al-Banna in 1928 and the birth of political Islam as an oppositional movement. But, while al-
Banna did author some lectures on politics and basic constitutional principles,7 arguably the
most important early statements of Islamic constitutional theory came not from Egypt but
from South Asia. Abu al-Aʿla Mawdudi gave a lecture on ‘The Political Theory of Islam’ as
early as 1939, in which he outlined basic principles for a renewed Islamic constitutional the-
ory, and authored more elaborate accounts of constitutional principles in the period after the
founding of Pakistan during the debates surrounding the first post-independence Pakistani
constituent assembly. Some of these lectures and articles from the 1949–1953 period were
gathered into a volume entitled Islamic Law and Constitution. In them, Mawdudi articulates
certain principles that can be said to characterize much Islamic constitutional thinking for
the next decades.
While Mawdudi’s concepts of ․hakimiyya (divine sovereignty) and jāhiliyya (the condition
of rejecting Islam) were notoriously influential on the Egyptian Islamist thinker Sayyid
Qutb, and Qutb’s writings on divine sovereignty ensured that Arab Islamists saw this con-
cept as their standard objection to modern forms of secular politics, Qutb himself was
not particularly interested in technical issues of constitutionalism or institutional design.
However, the post-Qutb period gives us a few important sets of writings on Islamic con-
stitutional law.
One set might be characterized as Islamist doctrinal apologetics. Many thinkers, of
a variety of intellectual backgrounds (some lay, some with scholarly credentials), have
written treatises on the kind of Islamic state Islamists should be striving for. These in-
clude activist intellectuals such as Hasan al-Turabi, Rashid al-Ghannushi8 and Yusuf
al-Qaradawi.9 This set might also include treatises written by independent intellec-
tuals sympathetic to political Islam, such as Fahmi Huwaydi,10 Muhammad ʿImara,11
Muhammad Salim al-ʿAwwa12 and Tariq al-Bishri. In addition to this discourse (much of
it dense and sophisticated), we find a literature of scholarly monographs on ‘constitutional
jurisprudence’ ( fiqh dustūrı̄),13 ‘the principles of government’ (us․ūl al-h
․ukm)14 or ‘religiously
legitimate governance’ (siyāsa sharʿiyya) written by professional academics, many of them
15
in ‘secular’ universities.
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2 The basic contours of modern Islamic constitutional theory

The themes of modern Islamic constitutional theory are surprisingly consistent from the
19th-century to the present, and across the above genres. On my reading, the following are
the most consistent and prominent themes in (Sunni) Islamic constitutional theory:
• Governance itself (h․ukm) is a necessary condition for mankind, and this can be known
through both reason and revelation. In other words, whatever freedom humans in gen-
eral, and the Muslim umma in particular, have to extend and revoke authorization for
rulers, they are not free to choose to not be governed at all.
• The Muslim umma pre-exists any particular political regime or contract of rulership, and
so paradoxes familiar to Western philosophical treatments of the authority of a people
to authorize government before it has actually formed itself as a people are less salient.16
• In addition to governance in general being obligatory, for Muslims the specific office of
the Imam, or Caliph, is obligatory. While some thinkers argue for this from reason as
well (because if governance is necessary, it follows that governance must be unitary), in
most cases the arguments for the continued obligatoriness of the Caliphate are derived
from Islamic legal theory.
• While the Caliphate is thus regarded as a divinely ordained office, the holder of the office
is seen by Sunnis as a legally constrained officer or civil servant. It is a ubiquitous theme
in Islamic constitutional theory that the ruler is an agent (or even servant) of the people,
is constrained by law, and is removable by the people (or their representatives) when his
violation of the social contract exceeds certain boundaries.
• Government in general is characterized first and foremost as the application of a pre-
existing law. The social contract between the ruler and the ruled is largely seen as a pact
between a principal (the umma) and an agent (the ruler) for the latter to execute the for-
mer’s divinely-imposed obligation to implement divine law in the world. Thus, the law
is portrayed as largely pre-existing the political sphere and there to be discovered more
than made. In constitutional terms, there are certain ordained limits on the legislative
authority of any state office or institution.
• Of course, no one holds that the Shariʿah has legislated pre-existing rules for every con-
ceivable area of social life. The task of government is not only to apply the law that the
jurists discover ( fiqh law), but to issue policy and administrative directives in areas left
over. Thus, (modern) Islamic constitutional theory explicitly anticipates a realm of law
making that is distinct from law derived from classical fiqh. Almost always, this kind of
law making is framed in the context of the Qurʾanic concept of ‘consultation’ (shūrā).
• But such laws are not legislated without limitations. They must aim at the welfare of
the umma (mas․lah․a ʿāmma) and they must not violate the Shariʿah. Thus, a major theme
in modern Islamic constitutional theory is the idea that all laws made and enforced by a
state must either be compatible with the Shariʿah or otherwise not repugnant to it.
• Modern Islamic constitutional theory stresses the role of the umma in unique and novel
ways. The umma is almost always portrayed as the ‘source of all political authorities’
(mas․dar al-sulut․āt) and is also given a participatory role in whatever process is imagined
for institutionalizing shūrā and policy-oriented law making.
• Finally, an important feature of modern Islamic constitutional theory is that constitu-
tions are often used as important sites for declaring ideologically transformative goals
within society. In addition to the symbolic declaration of the Shariʿah as the source of all
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legislation, moral goals related to the family, social solidarity, religious education, social
welfare, public dress and modesty, and the ethical conduct of politics are often articu-
lated as constitutional obligations of an Islamic state.17
Thus, there is significant agreement among modern Islamic theorists about the basic param-
eters of Islamic constitutionalism. Government is necessary, but it must be by the consent of
the people, based on elected offices, constrained by the Shariʿah, and inclusive when it comes
to consultation on matters of public interest not pre-determined by the divine law.
But any scheme that is capable of garnering so much agreement across the full ideological
spectrum of modern Islamic thought must be masking some significant ambiguities. The points
of disagreement and debate within modern Islamic constitutional theory include the following.
• How far does the constituent authority (sult․a taʾsı̄siyya) of the umma extend? Is the umma free
to create radically new institutions and forms of governance suitable to its time and place?
Or is the specific office of the Caliphate a permanent obligation of the Shariʿah in principle?
• How broadly based must the election of the ruler or other representatives be? While
Sunni legal thought has always held that the Caliph is an elective office (by ikhtiyār rather
than the Shiʿite nas․․s, or designation), it does not follow that participation in the election
of the Caliph needed to involve a wide segment of the population. Technically, the elec-
tion was by the ‘People Who Loose and Bind’ (ahl al-h․all wa-l-ʿaqd), which could be an
ad hoc council of notables, or even just the sitting Caliph, who could ‘elect’ his successor
on the grounds that he was best placed to know what was in the umma’s interest. By and
large, modern Islamic constitutional theory is not comfortable with limiting the election
of the ruler to a limited group of ‘People Who Loose and Bind’, but this nonetheless
remains an issue of disagreement.
• Similarly, there is disagreement about the source of authority of other intermediary or rep-
resentative bodies. Traditionally, scholar-jurists and whoever constituted the ‘People Who
Loose and Bind’ of the time stood in between the ruler and the people, and to that extent
mediated the ruler’s power. But they occupied this role on their own authority, whether
epistocratic (in the case of the scholars) or functional (in the case of military and other bu-
reaucratic elites who claimed to fulfil the role of the ‘People Who Loose and Bind’), rather
than by any authorization or consent of the people. By contrast, even where modern Is-
lamic constitutional theory preserves a role for religious scholars or elite representatives in
law-making, adjudication, consultation, policy-making and limiting the arbitrary power
of the executive, it is an active point of debate whether the source of their practical political
authority is only the consent and authorization of the people, or whether it can be imposed
on the people because of their intrinsic capacity to govern in the people’s interest.
• While all Islamic constitutional theorists make some kind of ‘application of the Shariʿah’
central to the understanding of political legitimacy, there is substantial disagreement
about what it means to apply the Shariʿah, what is timeless and what is flexible in the
Shariʿah, and whether the Shariʿah is more or less identical to the classical fiqh tradition
or is instead a living process of rediscovering the meaning of revelation based on present
circumstances (Ijtihād). Thus, there is ambiguity as to the core constitutional question
of how free political authorities are to legislate about public matters from pre-political
legal and moral constraints.
• Related to this problem, there is disagreement about the meaning and institutional-
ization of Shariʿah-adjudication. A number of Muslim countries have articles in their
constitutions declaring that the Islamic Shariʿah is the basis of all legislation and that
404
any new legislation must be compatible with, or not repugnant to, the Shariʿah. But
there is little agreement on what this means in principle, never mind in practice. What
is modern codified state law evaluated against for Shariʿah-compatibility purposes –
t raditional fiqh law as found in the compendia and summaries of the legal schools, some
new direct evaluation of what the primary sources of revelation require, or some com-
bination of the two? Are all bodies of law treated equally in terms of the requirement of
Shariʿah-compatibility? Or is there a distinction between areas of law where the Shariʿah
is thought to speak directly, and possibly definitively, and areas of the law where the
umma and its representatives have greater freedom to pursue mundane welfare (mas․lah․a)?
That is, does something like the classical distinction between fiqh ( jurists’ law) and siyāsa
(rulers’ law) persist, or is all legislative activity to be subject to divine restrictions? Finally,
how should legislation beyond the strict confines of revealed texts be conceived? When
the umma or its representatives make law in areas that do not directly implicate the
Qurʾan, the Sunnah, or traditional fiqh rulings, should this be regarded as law making
‘outside the Shariʿah’ or is the pursuit of the umma’s mas․lah․a in this world, the dunyā, part
of God’s will and thus part of what it means to enact a ‘living Shariʿah’?
• There is a further dimension to the question of Shariʿah-adjudication, namely who decides
on the question of the compatibility of state law with the Shariʿah and what is the implication
of a finding one way or the other for the bindingness and validity of law within a given
state? There is significant disagreement on who holds the authority to speak in the name of
the Shariʿah in the modern state. The natural answer would be the experts in knowledge
of the divine law (the ʿulamāʾ), but at least since the Persian Constitution of 1906–7, tradi-
tional scholars have shared this authority with lay jurists and other legislators. Thus, speak-
ing in the name of the Shariʿah is not necessarily the monopoly of traditional experts. But
more intriguing perhaps is the question of the authority of the Shariʿah as such. Suppose a
new law is held to be in violation of Shariʿah principles. Does this immediately invalidate
a law, or does it merely subject it to further scrutiny or revision? When other branches
or authorities of government override an initial judgement of Shariʿah-incompatibility,
should this be seen as governing beyond the limits of the ‘Shariʿa’ or rather might the overall
dialectical process of enacting law and policy in consideration of revealed texts, traditional
scholarly knowledge and temporal considerations of the umma’s best interest (mas․lah ․a) itself
be what it means to govern in a religiously legitimate way (i.e. the idea of siyāsa sharʿiyya)?
Thus, the aspects of constitutionalism that are more or less subject to agreement in modern
Sunni Islamic thought are: that the people are, broadly speaking, the source or origin of the
legitimacy of political institutions, can elect and supervise political officers, and can partic-
ipate in various forms of consultation and law making. Similarly, it is broadly agreed that
elected rulers are agents or civil servants subject to the law and limited in their authority,
and that all laws and enactments are subject to some kind of Shariʿah-review. This is what is
meant when some contemporary Islamic constitutional theorists claim that the state in Islam
is neither theocratic nor fully secular, but rather a ‘civil state’.
3 The core ambiguity of modern Islamic constitutionalism:

the scope and authority of human-made legislation
What is more interesting are the areas of disagreement or fundamental ambiguity. What does
it mean in the modern period for the Shariʿah to be enforced or to serve as the source of legis-
lation? What is the scope for law-making in an Islamic state and who is entitled to participate
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in it? What is the status – from a Shariʿah-minded perspective – of new laws made by state
institutions? And what is the standard for engaging in Shariʿah review of legislation, and who
is entitled to formulate that standard and apply it in courts authorized to review legislation?
The rest of this chapter focuses on a few important thinkers who have articulated responses to
these questions: Abu al-Aʿla Mawdudi, Kamal Abu al-Majd and Rashid al-Ghannushi. This
does not give an exhaustive account of Islamic constitutionalist views, but it should suffice.
3.1 Mawdudi
Post-partition Pakistan was the first modern, post-colonial Muslim-majority state to attempt
to define itself explicitly as an ‘Islamic state’ and to enshrine that through constitutional
declarations. The 1949 Objectives Resolution was, to a certain extent, a symbolic victory
for Islamists as it codified certain basic premises of modern Islamist ideology associated with
Mawdudi and his party, the Jamāʿat-i Islāmı̄.18 In 1948 Mawdudi gave a speech in which he
articulated ‘Four Points’ central to any Islamic constitution:
1) Sovereignty in Pakistan belongs to God, and the government is only an agent of His
Sovereign Will.
2) The Islamic Shariʿah shall form the inviolable basic code of all legislation in Pakistan.
3) All existing or future legislation which may contravene (in letter or in spirit) with the
Shariʿah shall be null, void, ultra vires of the legislature.
4) The powers of the government shall be derived from, circumscribed by and exercised
within the limits of the Shariʿah alone.
The 1949 Resolution nodded to these principles in declaring that ‘Sovereignty belongs to
Allah alone; but he has delegated it to the State of Pakistan through its people for being exer-
cised within the limits prescribed by Him as a sacred trust’. According to Said Arjomand, this
declaration of God’s sovereignty was in fact the cornerstone for the construction of an
ideological constitution purporting to be based on the Qurʾan and the Islamic Shariʿah.
This declaration ushered in a wave of ideological constitution-making in the Muslim
world, with Islam increasingly as the basis of the constitution and the state, making cur-
rent constitutional problems especially intractable.19
More germane for present purposes are the theories of Islamic constitutionalism in circu-
lation at this time. Mawdudi was not the only figure writing on this topic during the time
between the adoption of the Objectives Resolution and the 1956 Pakistan constitution, but
his ideas were both among the most influential and also represent an important point of
comparison with later Islamist articulations of constitutional ideals. Mawdudi also made con-
stitutional theory central to the Islamist intellectual project early in the history of his party.
As noted above, Mawdudi’s discussion of constitutional principles actually goes back to as
early as 1939, in a lecture to students at Punjab University. In this lecture,20 he gave a three-
fold characterization of an Islamic state:
(1) No person, class or group, not even the entire population of the state as a whole, can
lay claim to sovereignty. God alone is the real sovereign; all others are merely His sub-
jects. (2) God is the real law-giver and the authority of absolute legislation vests in Him.
The believers cannot resort to totally independent legislation nor can they modify any
406
law which God has laid down, even if the desire to effect such legislation or change in
Divine laws is unanimous. (3) An Islamic state must be founded upon the law laid down
by God through His Prophet. The government which runs such a state will be entitled
to obedience in its capacity as a political agency set up to enforce the laws of God and
only insofar as it acts in that capacity.21
Thus, we see the main principles of Mawdudi’s Islamic constitutionalism: God’s sovereignty
is primarily to be understood as legislative sovereignty and that means first and foremost
adopting for implementation any revealed text that appears to indicate a clear legislative
command.
Mawdudi’s view is distinctive for its formalist understanding of Shariʿah and its restrictive
understanding of the place for human legislative efforts. In the same lecture, he discusses the
place of law making beyond the Shariʿah in the following way:
All administrative matters and all questions about which no explicit injunction is to be
found in the Shariʿah are settled by consensus of opinion among the Muslims. Every
Muslim who is capable and qualified to give a sound opinion on matters of Islamic law is
entitled to interpret the law of God when such interpretation becomes necessary. In this
sense, the Islamic polity is a democracy. But it is a theocracy in the sense that where an
explicit command of God or His Prophet already exists, no Muslim leader or legislature,
or any religious scholar can form an independent judgment, not even all the Muslims of
the world put together have any right to make the least alteration in it.22
Mawdudi gives a relatively clear-cut ‘constitutional’ principle about whether humans are
free to enact novel laws: Is there a text on the matter in the Shariʿah or not? This reflects a
formalist understanding of the law: texts are all more or less equal in their legal force and
are not to be second-guessed by humans based on some independent, substantive criterion
of legal validity. So on this standard, even areas of the law of social relations (muʿāmalāt),
often thought to be open to continuous Ijtihād based on judgements of what serves the wel-
fare of Muslims (mas․lah․a) at any given time (marriage, divorce, succession, sales, contracts,
etc.), are not subject to legal change or revision if there are clear revealed texts. What is
left over for public consultation or deliberation are characterized as largely ‘administrative
matters’.
In later writings, from the period after the Objectives Resolution and the establishment
of a constituent assembly, Mawdudi published some longer lectures and articles on Islamic
constitutional theory.23 In these, he goes into further detail about the core problems of Is-
lamic constitutionalism that he expressed in his Four Points demand: what exactly it means
to apply the Shariʿah, what space is left over for human legislation, how that legislation should
be made, and how all state legislation should be reviewed for Shariʿah-compatibility.
He first makes clear that by ‘applying the Shariʿah’ he means applying as much as possible
from both clear, revealed texts and classical fiqh before moving on to human legislation. He
defines the ‘fixed parts of the Shariʿah’ that must be upheld as, first, those laws that have been
laid down in explicit and unambiguous terms in the Qurʾan or sunnah (e.g. those pertaining
to alcohol, interest, gambling, the ․hudūd punishments, inheritance, and so on), followed by
guiding principles (mabādiʾ) and limitations on human behaviour laid down in revelation.24
Beyond the realm of law clearly determined by revelation, he allows that there is a further
realm of the law subject to modification according to the changing needs and requirements
of the time. This adaptation of the Shariʿah is to be performed strictly by expert jurists
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using the methods of legal interpretation (which he characterizes somewhat idiosyncrati-

cally as drawing on the mechanisms of taʾwı̄l, qiyās, ijtihād and istih․sān).
But Mawdudi’s prescriptions should not be mistaken for the ‘back to the source’ approach
to Islamic law common to many Modernists.25 He calls for the establishment of an Academy
of Law, staffed by expert jurists charged with ‘taking stock of the entire work left behind by
our ancestors in the field of law’ with the mission of translating classical fiqh works but also
editing them afresh and ‘re-arranging their contents on the pattern of modern books of Law’
so that Islamic fiqh manuals might look more like modern works of law, resulting in Islamic
legal codes of civil and criminal law and procedure.26
Mawdudi does not confuse classical fiqh works for the very essence of Shariʿah that Mus-
lims are required to uphold. For him, Islamic law is comprised of only the following four
categories:
1) explicit commandments of God in the Qurʾan;

2) explanations or details of a Qurʾanic commandment or an explicit order by the Prophet;
3) deductive or inductive inferences based on explicit texts and approved by the majority of
the Muslims in the past, or a juristic verdict agreed to in the past by a majority of Islamic
scholars and accepted by a great majority of the Muslims (ijmāʿ); and
4) a ‘fresh piece of legislation decided now by a unanimous verdict or the opinion of the
majority of the leaders of the Millat in accordance with the requirements of Islamic
Law’.27
Based on this typology, his
proposal is that a body of Islamic legal experts should compile the first three categories of
commandments and laws into a Code. Additions to it will continue to be made as fresh
laws are framed by general consent or majority decision. If and when such an exhaustive
code has been compiled, it will be the basic book of law and all the current books of fiqh
will serve as commentaries for this book.
In terms of constitutional theory, Mawdudi can be said to regard traditionally-trained schol-

ars as the designated expert codifiers of law. The legislative authority of any constituted
political body is constrained by both a prior moral commitment to be faithful to the Shariʿah
and by a political imperative to defer to experts who are entitled – on the basis of their epis-
temic (not appointed) authority – to codify law for the Muslim community. While the precise
political institutions created within a constitutional order are up to the umma to design, the
broad contours of the constitutional order are fixed by certain permanent injunctions of the
divine law.
What remains is the Islamic notion of shūrā: consultation among the believers about the
best means for realizing their interests in the world. Mawdudi regards that as a relatively open
area for constitutional jurisprudence. The precise mode of shūrā has been left for the Muslims
to figure out. The Shariʿah
does not, therefore, lay down whether the people should be consulted directly or
through their representatives; whether the representatives should be elected in general
elections or through electoral colleges; whether the consultative body should have one
house or two houses … the Shariʿah leaves these problems open for solution according
to the needs of the time.
408
He only sees three core, sharʿı̄ constraints in this area. First, no collective affair can be con-
ducted without consulting the people concerned (what is sometimes referred to in contem-
porary political philosophy as the ‘all-affected interests principle’). Importantly, he holds
that this applies to the appointment of the Head of State in the first order, and thus the
principle of shūrā excludes from the outset any form of monarchy, despotism or dictator-
ship. Moreover, it also forbids the Head of State from enjoying emergency powers or the
authority to suspend the constitution, a common power enjoyed by executives in modern
constitutions. Second, all people concerned should be consulted directly or through repre-
sentatives, including non-Muslims. And third, consultation should be free, impartial and
genuine.28
However, despite the insistence on the fairness of shūrā, it should not be mistaken for a back
door to robust legislative authority. Mawdudi is adamant that
in an Islamic state the legislature has no right to make laws, the executive has no right
to issue orders and the law courts have no right to decide cases in contravention of the
teachings of the Qurʾan and Sunna; and if they do so, the Muslims must disobey them.
This is perfectly in keeping with his commitment to ‘divine sovereignty’:
If anything is proved to be right in the light of the Qurʾan and the Sunna, it cannot be set
aside by any judge on the grounds that it is in conflict with the law enacted by the leg-
islature. … If there is a conflict between the two, it is the latter which must be declared
ultra vires of the constitution.
But it also raises some interesting implications for a broad right (or even obligation) to civil
disobedience. If the people disobey the government because it violates the Shariʿah then ‘they
will not be guilty of any crime; and it is the government whose orders must be set aside in
such a case’.29 However, if this right is generalized beyond the authority of fiqh experts or an
appointed judiciary to judge on Shariʿah-compliance to a general right to popular disobedi-
ence or nullification, this seems to raise the spectre of the kind of anarchy of judgement in
religious matters that Sunni constitutional theory has sought to avoid. And yet it does seem
that there is a genuine kernel of such radical populism at the heart of Sunni anti-clericalism
and community-centredness.
3.2 Abu al-Majd

Mawdudi represents the apex of Islamist ideological constitutional theory, but the field is
populated by a wide range of thinkers. Some of them are academics who are not part of the
Islamist movement but are sympathetic to the goal of legitimizing constitutional orders in
Islamic terms. One such is the prominent Egyptian constitutional lawyer and law professor,
as well as former minister and vice-president of the Egyptian National Council for Hu-
man Rights, Ahmad Kamal Abu al-Majd. Abu al-Majd’s 1962 lectures, published as Nazarat
Hawla al-Fiqh al-Dusturi fi al-Islam (Reflections on Constitutional Jurisprudence in Islam), 30
are among the earliest academic contributions to the study of constitutional theory.
Abu al-Majd reiterates much of what I suggested above was standard (Sunni) constitu-
tional doctrine: even a legitimate Caliph is a civil (madanı̄) ruler from all standpoints with no
claim to a divine right to rule; the Caliphate, or Imamate, is a kind of contract comparable
to the social contract of Western political theory in that it involves reciprocal rights and
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Andrew F. March
obligations and mechanisms for checking and controlling the power of the ruler (murāqaba);
the people are the legitimate source of all political power and authority; and governance is a
matter of consultation between free persons. Abu al-Majd also insists that Qurʾanic notions
of the dignity (karāma) of the ‘sons of Adam’ and mankind’s universal vicegerency of God (is-
tikhlāf, khilāfat al-insān) guarantee the respect for personal rights and freedoms in Islam, which
he regards as one of the two pillars of democratic theory (along with the rule of the people).
However, he does not regard Islamic constitutionalism and modern democratic theory as
identical. The difference lies in the limitations on the conception of popular sovereignty. On
his reading of Western democratic theory, popular sovereignty means that whatever the major-
ity decides becomes binding law; its will is supreme and there is no higher authority.31 In Islam,
by contrast, popular sovereignty is limited. But, perhaps surprisingly, he does not stress simply
the sovereign place of divinely revealed law, but also the constraint on popular sovereignty ‘by
an idea, ideology and a collection of ethical and legislative values that form the obligatory legal
framework for the majority’. He thus refers to the Islamic state in the first order as an ‘ideolog-
ical state’ (dawla fikriyya). However, it is clear that this can only be institutionalized in the form
of a law ‘which both rulers and ruled have to submit to’, and thus that Islamic government is
the government of law, not the government of men. Islam strips any government actions, even
if validated by the majority of the people through some process of shūrā, of any binding or
obligating force if they violate the limits of the basic legal framework. This opens the door for
the establishment of a special body for the review of such government actions.32
Whereas Mawdudi had insisted that only God could be regarded as sovereign, and the
umma could only be seen as enjoying a kind of deputyship in its status as God’s vicegerent
(khalı̄fat Allah), Abu al-Majd characterizes the correct Islamic view as one of ‘dual sover-
eignty’ (siyāda muzdawija): the absolute sovereignty of a fixed constitution based on ‘God’s
limits, made clear in the Qurʾan and Sunnah’, augmented with limited popular sovereignty
for the people. The foundation for this dualism is that Islam did not leave people to their
whims and does not see in numbers alone a clear, definitive, infallible proof of a truth-claim.
The majority view is probabilistic at best, and could even lead to error. Only the prophets of
God have brought clear truth, even when they stood alone, or the number of their followers
was small. Islam, for Abu al-Majd, thus distinguishes between two spheres: that of the clear,
definitive Text, and the that of the ambiguous text, or the absence of one altogether. Where
there is a clear, definitive Text there is no room for the majority, not even for an Ijmāʿ of
the whole umma, to legislate. For God, who revealed such a Text, is more knowledgeable
than the community of where its welfare is located and what justice requires. 33 But in other
circumstances, when the text admits of interpretation, where there is no text treating this
question, or when there is no objective measure of truth or right and wrong, then Islam
puts the greatest weight on the opinion of the majority, making it in fact an indicator of the
truth. He quotes the following Prophetic dicta in supportive of this: ‘the hand of God is with
the jamāʿa’, ‘what the Muslims regard as good, that is good in God’s eyes as well’ and ‘my
community will not agree on an error’. However, beyond the claim that there are such clear,
unambiguous texts. Abu al-Majd does not, in these early lectures, specify how they are to
be identified (and by whom), and whether even apparently clear texts admit of judgement or
flexibility in application on grounds of mas․lah․a or equity.
3.3 Ghannushi
In addition to the idea of divine sovereignty (h․ākimiyya) as the master principle of political
legitimacy for Muslim societies, Mawdudi popularized a political reading of the theological
410
doctrine of all mankind as God’s deputy, or caliph. Mawdudi himself drew upon this doc-
trine to distinguish between sovereignty and deputyship. But as he himself referred to the
Islamic regime type not as a theocracy but as a ‘theo-democracy’, this doctrine of the ‘caliph-
ate of man’ releases a strain of democratic thought into the modern Islamic ideological gene-
alogy. It becomes an important pillar of post-utopian Islamic democratic and constitutional
thought. An important source here is the thought of Tunisian Islamist political theorist and
party leader Rashid al-Ghannushi, who writes, for example, that while the Islamic concep-
tion refers everything back to God and to the Shariʿah, the claim that man is mustakhlaf (dep-
utized by God) means that he is dignified by His creator with reason, will and freedom (in
addition to being helped along the way by prophets). He adds that ‘this general framework for
life leaves empty wide areas to be filled by man exercising his vicegerency (khilāfa), through
which the union of freedom and obligation, unity and pluralism, is realized’.34
Ghannushi goes so far as to say that the umma, as the source of all political authorities, is
‘the possessor of supreme sovereignty in matters of governance via its election, supervision,
accountability, cooperation with and removal of the ruler’.35 But, a major move in modern
Islamic political thought and constitutional practice is to ground the authority not only of
the ‘secular’ executive rulers, but also that of ‘religious’ authorities ( jurists exercising some
supervisory role over the executive and legislative powers) on popular consent and election.
In the theory outlined by Ghannushi, he is very clear that even if select, elite bodies of rep-
resentatives are formed and exercise a mediating fiduciary role (as with the scholars in the
traditional siyāsa sharʿiyya conception), their own limited representative authority is derived
exclusively from popular ratification and not their own epistemic claims. (By contrast, as
recently as 1922, when the Syrian-Egyptian scholar Rashid Rida wrote a treatise on the
Caliphate in anticipation of its demise, he asserted the authority of scholars and other elites
forming the ‘People Who Loose and Bind’ to take up the right to constitute a new political
system on their own self-appointed authority, without any popular ratification or consent.) It
is through the idea that even experts in Islamic law derive their political authority from popu-
lar authorization that some of Ghannushi’s most interesting views about the umma’s ultimate
application of the Shariʿah in political life emerge.
On the one hand, he asserts the absolute force of divine sovereignty, even quoting Qutb
approvingly:
man is not the possessor of original right [s․āh

․ib ․haqq as․ı̄l] over himself or others but is
only a vicegerent [mustakhlaf ] or agent. He is not the possessor of (the right to) command
or supreme sovereignty, but is only the possessor of a right to an ordained authority [sult․a
mah․kūma] by the supreme legislative authority emanating from God. His only choices
are to worship God in accordance with the covenant of vicegerency [mı̄thāq al-istikhlāf ]
or to reject it and be ranked amongst the unjust, corrupt infidels.36
On this view, it is the umma’s task to implement the Shariʿah, and it does this by entrusting
the jurists with legislative authority. But at the same time, he refers to the umma as a ‘source
of legislation’ (mas․dar al-tashrı̄ʿ) and describes the umma as ‘participating in divine will’.
Ghannushi derives from the doctrine of the ‘caliphate of man’ precisely a kind of popular
control over the application of law in an Islamic state. While we have seen that Ghannushi
rhetorically asserts the sovereignty of God’s law over any popular legislation, what is ul-
timately important is not only the direct interpretation of the Shariʿah and what rules it
prescribes, but the higher-order adjudication of what in the Shariʿah is a timeless constraint
on the umma and what is subject to popular deliberation. For example, in his extensive and
411
Andrew F. March
forceful defence of the ‘Text’ as the first pillar of Islamic political order and the originating
and supreme authority within it, Ghannushi writes that the reference to ‘Text’ and ‘Shariʿa’
as supreme authority and source of all other powers is not a reference to ‘positive jurispru-
dence [ fiqh] and expert reasoning as to the details [of the law]. Rather, perfection – which
is a description of the Shariʿah – is not in the particulars but only in the generalities’.37 The
entire dilemma, and essential ambiguity in Ghannushi’s hybrid conception of sovereignty,
is expressed a few pages later at the end of his core exposition of the meaning of divine
sovereignty:
The foundations of this [ just, divine] law are not posited by a majority of society, or a
dominant class, or even a people preoccupied with its own partial interest, but only by
God, the Lord of all. It is enforced, explained and applied to new realities through new
specific acts of legislation by a human body chosen and supervised by the people. The
people thus has sovereignty over this body, involving appointment, supervision and re-
moval. This is the authority of the people [sult․at al-umma], or consultation.
Does seeing ordinary, political legislation as a kind of popular enactment not only of siyāsa
law but also the Shariʿah itself raise complex questions about the sacralization of politics and
the profanation of the Shariʿah? Consider Ghannushi’s definition of the living Shariʿah as that
which the people ‘enforce, explain and apply to new realities through new specific acts of
legislation’, in which the people are not only authorized to act politically in the world, but its
political acts are seen to represent the Shariʿah. The people’s political action is not observing or
abiding by the boundary between religious law and political action but creating it.
Insofar as Ghannushi stresses the idea of the universal Caliphate and the description of
politics as the umma’s discharging of its half of the contract of vicegerency, there appears
a kind of sacralization of politics. We see that Ghannushi’s assignment to the umma of the
sovereign right not only to control secular rulers but also to determine what it means to
‘apply the Shariʿah’, what is timeless and binding in God’s law and what is always a matter of
collective judgement and discretion, suggests the possibility of a popularized collapsing of
fiqh and siyāsa. In such a scheme, the idea of a theoretical constitutional distinction between a
legislative authority empowered to enact laws based on mas․lah․a but which is constrained by a
juridical authority empowered to declare Shariʿah-violative laws ultra vires seems to dissolve.
Notes
1 While this idea is associated with Hobbes and others, for a more modern statement of it, see John
Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995).
2 See, for example, Khaled Abou El Fadl, ‘Constitutionalism and the Islamic Sunni Legacy’, UCLA
Journal of Islamic and Near Eastern Law 1 (2001): 67 and ‘The Centrality of Sharı̄ʿa to Government
and Constitutionalism in Islam’, in Constitutionalism in Islamic Countries: Between Upheaval and Con-
tinuity, ed. Rainer Grote and Tilmann Röder (New York: Oxford University Press, 2012), 35–61.
3 Muhammad Rashid Rida, Al-Khilafa (Cairo: al-Zahraʾ li-l-Iʿlam al-ʿArabi, 1988 [1922]).
4 Ed. and repr. in Muhammad ʿImara, Maʿrakat al-Islam wa-Usul al-Hukm (Cairo: Dar al-Shuruq,
1989), along with a number of primary source texts related to the controversy surrounding the
publication of ʿAbd al-Raziq’s manifesto, including an extract from Al-Islam wa-Usul al-Hukm and
other articles by ʿAbd al-Raziq defending his views, proceedings from the hearing held by the
Committee of Senior Scholars (Hayʾat kibār al-ʿulamāʾ) and their verdict condemning the book and
stripping him of his title of ‘Islamic scholar’.
5 Muhammad Bakhit al-Mutiʿi, Haqiqat al-Islam wa-Us․ūl al-Hukm (Cairo: al-Matbaʿa al-Salafiyya
[1925]).
412
6 ʿAbd al-Razzaq Ahmad al-Sanhuri, Fiqh al-Khilafa wa-Tatawwuruha li-Tusbih ʿUsbat Umam Sharqiyya
(Beirut: Muʾassat al-Risala, 2001). See also Sanhuri’s doctoral thesis from the University of Lyon:
A. Sanhoury, Le Califat (Lyon: Imprimerie Bosc Frères & Riou, 1926).
7 See, for example, his essay ‘Nizam al-Hukm’, in Hasan al-Banna, Majmuʿ Rasaʾil al-Imam al-Shahid
Hasan al-Banna (Cairo: al-Maktaba al-Tawfiqiyya, n.d.).
8 Rashid al-Ghannushi, Al-Hurriyyat al-ʿAmma fi-l-Dawla al-Islamiyya (Beirut: Markaz Dirasat al-
Wihdah al-ʿArabiyya, 1993).
9 Yusuf al-Qaradawi, Fiqh al-Dawla fi al-Islam: Makanatuha, Maʿalimuha, Tabiʿatuha, Mawqifuha min
al-Dimuqratiyya wa-l-Taʿaddudiyya wa-l-Marʾa wa-Ghayr al-Muslimin (Cairo: Dar al-Shuruq, 1997);
al-Siyasa al-Sharʿiyya fi Dawʾ Nusus al-Shariʿa wa-Maqasiduha (Cairo: Maktabat Wahba, 1998.).
10 Fahmi Huwaydi, Al-Islam wa-l-Dimuqratiyya (al-Qahira: Markaz al-Ahram lil-Tarjama wa-l-Nashr,
Muʾassasat al-Ahram, 1993).
11 Muhammad ʿImara, Al-Islam wa-Falsafat al-Hukm (Cairo: Dar al-Shuruq, 1989); Al-Islam wa-l-
Siyasa: al-Radd ʿala Shubuhat al-ʿAlmaniyyin (Cairo: Dar al-Tawziʿ wa-l-Nashr al-Islamiyya, 1993).
12 Muhammad Salim al-ʿAwwa, Fi-l-Nizam al-Siyasi lil-Dawla al-Islamiyya (Cairo: al-Maktab al-Misri
al-Hadith, 1983); Al-Nizam al-Siyasi fi-l-Islam (Beirut: Dar al-Fikr al-Muʿasir, 2004).
13 Ahmad Kamal Abu al-Majd, Nazarat Hawla al-Fiqh al-Dusturi fi al-Islam (Cairo: Matbaʿat al-Azhar,
1962); ʿAli Mansur, Nuzum al-Hukm wa-l-Idara fi al-Sharı̄ʿa al-Islamiyya wa-l-Qawanin al-Qadaʾiyya,
Muqaranat bayna al-Shariʿah wa-l-Qanunayn al-Dusturi wa-l-Idari (Cairo: Matbaʿat Mukhaymar, 1965);
Hazim ʿAbd al-Mutaʿal Saʿidi, Al-Nazariyya al-Islamiyya fi al-Dawla: maʿa al-Muqarana bi-Nazariyyat
al-Dawla fi al-Fiqh al-Dusturi al-Hadith (Cairo: Dar al-Nahda al-ʿArabiyya, 1986); Fathi Wahidi, Al-
Fiqh al-Siyasi wa-l-Dusturi fi al-Islam: Dirasa Muqarana fi Masadir al-Nizam al-Dusturi wa-Nazariyyat
al-Siyada wa-Tanzim al-Dawla wa-Bayan Huquq wa- Hurriyyat al-Insan wa-Damanat Tatbiqiha fi-l-
Wathaʾiq al-Dawliyya wa-l-Nizam al-Islami (Gaza: Matabiʿ al-Hayʾa al-Khayriyyah bi-Qitaʿ Ghazza,
1988); Al-Sayyid Khalil Haykal, Mawqif al-Fiqh al-Dusturi al-Taqlidi wa-l-Fiqh al-Islami min Binaʾ
wa-Tanzim al-Dawla (Cairo: Dar al-Nahda al-ʿArabiyya, 1989); Muhammad Kazim Mustafawi,
Nazariyyat al-Hukm wa-l-Dawla: Dirasa Muqarana bayna al-Fiqh al-Islami wa-l-Qanun al-Dusturi al-
Wadʿi (Beirut: Maʿhad al-Rasul al-Akram li-l-Shariʿah wa-l-Dirasat al-Islamiyya, 2002); Ahmad
Muhammad Amin, al-Dawla al-Islamiyya wa-l-Mabadiʾ al-Dusturiyya al-Haditha: Dirasa li-Ahamm
Mabadiʾ al-Dimuqratiyya al-Gharbiyya fi Dawʾ Ahkam al-Sharı̄ʿa al-Islāmiyya (Cairo: Maktabat al-
Shuruq al-Dawliyya, 2005); Muhammad Ismaʿil Muhammad Mashʿal, Al-Dawabit al-Munazzima li-
l-Siyasa al-Sharʿiyya fi-l-Qanun al-Idari wa-l-Dusturi wa-l-Fiqh al-Islami: Dirasa Muqarana (Alexandria:
Maktabat al-Wafaʾ al-Qanuniyya, 2013).
14 Muhammad Yusuf Musa, Nizam al-Hukm fi al-Islam (Cairo: Dar al-Maʿrifa, 1964); Subhi ʿAbdu
Saʿid, Al-Hakim wa-Usul al-Hukm fi al-Nizam al-Islami: al-Siyasi wa-l-Iqtisadi wa-l-Ijtimaʿi wa-l-Fikri
(Cairo: Dar al-Fikr al-ʿArabi, 1985).
15 ʿAbd al-Wahhab Khallaf, Al-Siyasa al-Sharʿiyya fi-l-Shuʾun al-Dusturiyya wa-l-Kharijiyya wa-l-Maliyya
(Cairo: Dar al-Ansar, 1977); Muhammad Yusri Ibrahim, Al-Musharakat al-Siyasiyya al-Muʿasira fi
Dawʾ al-Siyasa al-Sharʿiyya (Cairo: Dar al-Yusr, 2011).
16 On this problem in early modern European thought, see Richard Tuck, The Sleeping Sovereign: The
Invention of Modern Democracy (Cambridge: Cambridge University Press, 2016), particularly Ch. 2
on the differences between Grotius, Hobbes and Pufendorf on the existence of a people separate
from the sovereign government that represents it.
17 See, for example, the ‘Draft Islamic Constitution’ drawn up by al-Azhar’s Academy for Islamic
Research in 1977 to be made ‘available to any country that wishes to model itself after the
Islamic Sharı̄ʿa’. Both English and Arabic copies can be found at http://www.tahrirdocuments.
org/2011/07/the-project-for-an-islamic-constitution-the-distinguished-al-azhar-academy-for-
islamic-research. See also Muhammad Asad, The Principles of State and Government in Islam (Kuala
Lumpur, Malaysia: Islamic Book Trust, 1980), which includes a set of reflections on social rights
and ideological goals beyond the structure of governance.
18 On the modern history of the concept of ‘divine sovereignty’ in South Asia leading up to Mawdudi’s
appropriation of it, and its subsequent history, see Muhammad Qasim Zaman, ‘The Sovereignty of
God in Modern Islamic Thought’, Journal of the Royal Asiatic Society, 25(3) (2015): 389–418.
19 Said Amir Arjomand, ‘Islamic Constitutionalism’, Annual Review of Law and Social Science 3 (2007):
115–40.
20 Translated and published as ‘Political Theory of Islam’, in Islam: Its Meaning and Essence, ed.
K hurshid Ahmad (Islamabad, Pakistan: IPS Press, 1975), 147–71.
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21 Ibid., 159.
22 Ibid., 161.
23 Trans. and coll. in Syed Abul ʿAla Maudoodi, Islamic Law and Constitution, ed. Khurshid Ahmad
(Karachi, Pakistan: Jamaat-e Islami Publications, 1955).
24 Ibid., 34.
25 A good example of this is the above-cited book by Muhammad Asad, The Principles of State and
Government in Islam. In this work, Asad argues passionately against secularism in politics and mere
rationalism in ethics, insisting that any Muslim society must derive its ethical certainty from re-
ligion and its legal structure from the Shariʿah. But he also limits the absolutely binding aspects
of the Shariʿah to precepts that can be grounded indisputably in revealed texts, suggesting that ‘it
is reasonable to assume that the Law-Giver never intended the Sharı̄ʿa to cover in detail all con-
ceivable exigencies of life. He intended no more and no less than to stake out the legal boundaries
within which the community ought to develop, leaving the enormous multitude of “possible” legal
situations to be decided from case to case in accordance with the requirements of the time and of
changing social conditions’ (p. 12).
26 Maudoodi, Islamic Law and Constitution, 57.
27 Ibid., 62.
28 Ibid., 83.
29 Ibid., 89.
30 Ahmad Kamal Abu al-Majd, Nazarat Hawla al-fiqh al-Dusturi fi-l-Islam (Cairo: Matbaʿat al-Azhar,
1962).
31 Ibid., 25.
32 Ibid., 26.
33 Ibid., 27.
34 Ghannushi, Al-Hurriyyat al-ʿAmma, 41.
35 Ibid., 71.
36 Ibid., 99.
37 Ibid., 101.

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25
Islam, constitutionalism and
democratic self-government
Mohammad H. Fadel
Introduction
The revolutionary events that engulfed the Arab world beginning with the fall of the T unisian
dictator, Zain al-ʿAbidin Ben ʿAli, in January 2011 brought to the fore long-standing con-
cerns about the relationship of Islam to democracy. With the failure of the January 25th
Revolution in Egypt to usher in a democracy, the collapse of Syria into an all-out civil war,
and the establishment of a fragile democracy in Tunisia, conventional analysis has laid the
blame for the failure of these revolutionary moments to consolidate democracy on the uncivil
and undemocratic role that Islam plays in Arab societies, with Tunisia proving the point: its
provision success was largely a result of the fact that its Islamist movement, the Nahda, had
become sufficiently diluted in its Islamic commitments that consolidation of democratic rule
became possible. Assuming this is true, then the problem of democratization in the Arab
world is essentially a theological problem: Muslims, to one extent or another, must either
cease being Muslim, or radically revise their inherited understanding of Islam, in order to
create space in which democracy can take root. Presumably, the reason why religion must
retreat to make room for democracy is that there is an inherent and un-resolvable tension be-
tween the claim of democracy that it is the people who should rule, and the claim of religion
(at least Islam) that God should rule.
Even if this were true, however, and even if we imagined a radical reformation of Islamic
teachings that satisfied the demands of those who wish to see Islam retreat so that democracy
takes root, we would still need to have an Islamic account of democratic self-governance, so
long as it is plausible to believe that at least a substantial minority of Muslims will continue
to adhere to traditional Islamic beliefs. This is so because theocracy is not the only threat to
democracy. Democracy also requires an active body of citizens that voluntarily complies with
the law. If a substantial portion of the citizens refuses to accept the duties of citizenship and
the legitimacy of state law because they deem the obligations of citizenship and the substance
of state law to contradict their obligations to God, there is a grave risk that the state will fail
in winning the voluntary cooperation of the citizens. In this case, the state will inevitably
have to rely on force to implement its will, thereby reinforcing authoritarian rule. As long as a
substantial number of citizens in a polity believe in divine sovereignty, therefore, even if that
415
Mohammad H. Fadel
sovereignty is only actualized in the next life, a theoretical account that reconciles the claims
of divine sovereignty to the temporal sovereignty of the state must be provided.1
This chapter will provide an overview of how the pre-19th-century tradition of Sunni
theology and law attempted to reconcile the claims of divine sovereignty to temporal sover-
eignty, and how its solution to this problem points the way to a normative theory of demo-
cratic self-government for Muslim peoples. It begins with a brief account of the distinctive
political theology of Sunnism. It then turns to Shihab al-Din al-Qarafi’s understanding of
the institutional architecture of Islamic law, and its relationship to the state and individual
Muslims. The chapter then turns to the law of the caliphate and demonstrates how, in its
mature form, it provided a solution to the problem of political ordering that emerges from
Sunni political theology and Sunni conceptions of law by offering a model of government
that incorporated the fiduciary ideals found in both consensual relationships, such as the
private law of agency, and in non-consensual relationships, such as the duties of guardians
over orphans, fathers over minor children, and administrators of endowments to the endow-
ments’ beneficiaries. The Sunnis’ fiduciary conception of state provided a normative basis
for both limiting state power and authorizing it to make positive law. Although such law
was not justified by reference to revelation, it could nevertheless be morally binding, provided
it met certain pre-requisites (shurūt․), even if its content went beyond that which revela-
tion commanded. Finally, the Sunni fiduciary theory of the state also provides normative
grounds for explaining why democracy is the most effective means of actualizing the Sunni
ideals of government insofar as it is the most effective means of giving effect to the ideal of
representation that is at the heart of Sunni ideals of political legitimacy. The chapter will
conclude with examples of how this Sunni theory of the state could be used to legitimate
popular government with robust legislative powers that would authorize the promulgation
of morally binding positive law that could resolve many of the historically controversial rules
of historical Islamic law without relying on either controversial or far-fetched interpretations of
revelation.2
1 Sunni political theology and the problem

of political ordering
Muslims, along with non-Muslim scholars, are in general agreement that the Prophet Mu-
hammad, after emigrating to Medina, took on the functions of a secular ruler in addition to
that of his prophetic office.3 But how would the nascent political order that he established
first in Medina and then the entirety of the Arabian Peninsula that he subsequently brought
under its rule during his lifetime be governed after his death, on the assumption that it was
to survive his death? Muslim chronicles report that the Prophet’s contemporaries disagreed
sharply on even the fundamental question of whether the Prophet’s state would continue
after his death, much less how its governance should be organized if the state continued in
existence. The Wars of Apostasy resolved conclusively the question of whether the Muslim
community was to continue as a political community after the Prophet’s demise, but it did
not resolve the underlying disputes over how it should be governed. Three different solutions
to this dilemma were offered.
The first was committed to a kind of post-Prophetic charismatic rule centred broadly
around notions of fidelity to the Prophet Muhammad’s descendants through the marriage
of his daughter Fatima and his cousin and son-in-law ʿAli b. Abi Talib, and their two sons,
Hasan b. ʿAli b. Abi Talib and Husayn b. ʿAli b. Abi Talib, the Prophet Muhammad’s only
grandsons. This sentiment eventually crystallized into the Shiʿa branch of Islam, whose
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Constitutionalism and democracy
solution to post-Prophetic governance of the Muslim community was that a member of his
household should serve as his successor, known as the Imam. The legitimacy of the Muslim
community was guaranteed by the Imam who, being protected by God from error (maʿs․ūm),
ensured that the Muslim community continued to be faithful to divine command.
The second option was committed to a radical egalitarian conception of political legiti-
macy combined with Puritan-like zeal in adherence to divine law. This group, which later
came to be known as the Khawarij (the secessionists), believed that the Muslims should
be ruled by the most virtuous living member of the community, without regard to either
his tribe or race. Non-repentant sinners, however, were excluded from the community of
Islam, and accordingly Muslims were under a religious duty to depose any ruler who com-
mitted a major sin. The Khawarij therefore believed that the community after the Prophet’s
death could maintain its integrity only if it submitted to its most virtuous member, and
expelled from its midst all those who were unwilling to abide strictly by Islamic norms.
The third option was pursued by the majority of the Muslim community, and later came
to be known as the Sunnis. For this group, the community could govern itself through its
own choice (ikhtiyār) of a ruler. In contrast to the Shiʿa, they rejected the notion that lead-
ership of the community was limited to the Prophet Muhammad’s descendants, or that the
leader should have special charismatic qualities that would guard against error. Against both
the Shiʿa and the Khawarij, they rejected the doctrine that only the most virtuous member
of the community could serve as the community’s leader, holding instead that the commu-
nity was free to select any adult male who possessed the minimum combination of moral
integrity (ʿadāla), knowledge of the law (ʿilm) and competence (kifāya). While the Sunni
theory of succession imposed some important restrictions on who was eligible to lead, it did
not impose superhuman requirements. The Sunnis had confidence in the ordinary person’s
ability to act morally in accordance with the norms of divinely revealed law, without need
either for the assistance of a charismatic Imam who is protected from sin, or a ruler of heroic
moral virtue that never sins. The integrity of the community for the Sunnis was assured not
by the special qualities of the ruler, but rather by the ability of the community to know, and
adhere to, divine law. This in turn assumed that the person of average intelligence was capa-
ble of understanding and adhering to the law, and was not in need of a special person or class
of persons to make the law accessible. Accordingly, Sunni jurists, while not reflexively and
inflexibly committed to literal interpretations of revelation, were committed to an objective
theory of revelation’s language which ensured that divine law was accessible to anyone who
mastered the Arabic language.
Sunni political theology, by denying the notion that any person had a personal right (istih
․qāq)
to lead the community, whether by virtue of charismatic descent, as the Shiʿa claimed, or
by virtue of superior virtue, as the Khawarij claimed, faced a peculiar moral quandary when
it came to justifying political power: because all Muslims were substantially equal with re-
spect to their potential to capacity to serve as leader, their potential for moral virtue, and
their potential to know the law, on what basis could any of them claim a right to command
the obedience of others who were their substantial equals? Indeed, as the Mamluk-era Shafiʿi
jurist Ibn ʿAbd al-Salam pointed out, no human being was naturally more deserving of the
right to command the obedience of others than anyone else. Moreover, obeying another hu-
man being, in certain circumstances, could be a potentially blasphemous act, if the obedience
was motivated by the false belief that another human being was the effective cause of actual
benefit or harm, rather than the recognition that God is the only real benefactor. Obedience
to another human being was therefore contrary to the fundamental principle of human inde-
pendence and the theological principle that humans should serve only God, not one another.
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Mohammad H. Fadel
The duty of obedience, therefore, could only be justified by explicit permission from God
Himself. God, according to Ibn ʿAbd al-Salam, permitted people to obey only legitimate
rulers, but not ignorant kings and military rulers who were distinguished from others only
by virtue of their possession of superior temporal power.
2 Governance among equals, agency and the contract

of the caliphate as constitutional government
The central problem posed by Sunni political theology was how to justify governance among
equals. Ibn ʿAbd al-Salam already pointed out one obvious solution to this problem: to the
extent human beings are all equal insofar as they are all servants of God, and God will hold
them accountable for their actions in the next life, obedience to the law can substitute for
obedience to human beings. And indeed, fidelity to the law was an important element of
normative Sunni political theory, but as I will explain more fully below, the law was not
self-executing. Even a minimalist conception of the law required the creation of institutions
which could resolve disputes conclusively, effectively pursue the common good, and admin-
ister rights of the community. How was it possible to justify, for example, a moral duty to
appear before a judge and submit to his judgment, even as it was acknowledged that there was
nothing in the judge’s person that assured litigants that his rulings were always in accordance
with divine law? The solution that Muslim jurists ultimately proposed to this dilemma, and
which formed the basis of the mature theory of the caliphate, is that the duty arises not be-
cause of a hierarchical relationship between the judge and the litigant, such that the litigant
is obliged to submit to the court’s jurisdiction over him because of the judge’s elevated place
in the social and political hierarchy; rather, it is because the judge acts as a representative of the
community, of which the litigant is a member, and just as a principal is bound by the actions
of his agent in the context of private law, so too is the ‘public’ bound by the lawful decisions
of its representatives. In other words, by obeying the judge, the individual, in Sunni political
thought, is doing nothing more than obeying himself.4
By analogizing public officials to agents and fiduciaries, Sunni jurists established a stan-
dard of legitimacy that included both substantive and procedural norms. As a matter of pro-
cedure, all legitimate authority could only be created via a delegation of powers, directly or
indirectly, from the public. Because all power is delegated, office holders can only perform
those acts that fall within the scope of their delegation. An act may be substantively lawful,
but if it was not within the jurisdictional competence of the office holder, the action would
be invalid because the office holder lacked jurisdiction to undertake the action in question.
This result is perfectly analogous to the rule that applies to an agent of a natural person
who performs a substantively lawful act, e.g. agrees to purchase Blackacre, but because his
principal had only given him authority to purchase another tract of land, e.g. Greenacre, the
contract, though lawful, fails to bind the principal.
While jurisdictional limitations on the authority of agents are external to the agency
relationship insofar as such particular limitations are contingent on the specific terms of any
appointment, the agency relationship also places internal limits on the kind of actions the
public may authorize their representatives to perform on their behalf. This is because in the
Islamic law of agency, a principal lacks the power to appoint an agent to perform an illegal
act (maʿs․iyah). Accordingly, the Muslim public lacks the power to authorize public officials
to commit acts in violation of the law. Accordingly, if a public official knowingly performs
a substantively illegal act, the public official becomes liable in the same way that a private
person would, even if, when he performed that act, he was obeying the ostensible command
418
of a superior public official. Public officials only enjoyed immunity for their official acts when
they could plausibly believe that their actions were substantively lawful.
Principles of agency law were therefore adopted from the domain of private law and
applied to the actions of public officials to establish that government actions, to be lawful,
had to issue from an actor who had been properly delegated the authority to act in that do-
main, and that the action in question was, in fact, substantively lawful. The contract of the
caliphate, by establishing the principle that public officials are the agents of the governed,
established a norm of constitutional government that limited the powers of public officials to
those which met both the procedural limitations of the applicable grant of jurisdiction, and
the substantive norms of the law. Whether the Sunni jurists, in addition to affirming the
idea of limited government, also accepted the notion of self-government, i.e., the power of
the political community to make laws for itself, will be discussed in further detail below,
but before we can answer that question, we must first consider the different kinds of rules
recognized within Islamic law, and their respective relationship, if any, to the existence of
political institutions.
3 Islamic law and the state

A commonly held view among scholars of Islam is that Islamic law is a pre-political jurists’
law in the sense that it exists, conceptually at least, prior to the founding of the state. As a
consequence, the state’s role is limited to enforcement of the body of rules, known as fiqh,
developed by the Muslim jurists. The state, therefore, has no positive role in the development
of the norms of Islamic law, which is understood to be a purely interpretive exercise. From
this perspective, the Islamic constitution, although it provides for limited government, does
not permit legislation beyond that which is found, or reasonably derivable from, revelation.
According to prevailing accounts of Islamic legal history, the impossibility of legitimate,
human-made positive law produced an enormous chasm between the theoretical ideals set
out in the jurists’ law and the lived realities of Muslim societies. This gap between ‘theory
and practice’ in turn led to the establishment of a parallel system of ad hoc law, known as
siyāsa.5 This system was rooted in the raw power of the state and was justified solely on the
jurisprudential doctrine necessity (d․arūra). Although later authors, such as Ibn Taymiyya and
others, attempted to subject siyāsa to the normative discipline of the Shariʿah, giving rise to
what they called siyāsa sharʿiyya, modern scholars largely continue to view such rules as ex-
isting outside the normative framework of Islamic law proper, which they tacitly limit to the
rules of fiqh. In the modern age, where state-promulgated law has largely displaced the norms
of fiqh in Muslim states, the notion that a state is constitutionally disabled, from an Islamic
perspective, to legislate positive law, leads to the conclusion that Islamic law is dead, or the
even bolder claim that an Islamic state is conceptually impossible.
I believe these conclusions are based on the erroneous assumption that the pre-19th
century Islamic constitution did not authorize human-made positive law. To establish this
point, it is useful to consider views of the 13th-century Egyptian Maliki jurist, Shihab al-
Din al-Qarafi, on the different kinds of rules that were operational in the late Ayyubid and
early Mamluk states. While there are many different ways to classify the rules of Islamic
law, Qarafi introduces a distinction between: 1) rules that are established by virtue of reve-
lation (mā taqarrara fı̄ as․l al-sharʿ); and 2) rules that are established by a post-revelation act of a
human being pursuant to that person properly exercising a power granted to him or her by
God. The first category of rules includes: a) uncontroversial rules of Islamic law (al-mujmʿa
ʿalayhā), such as the obligation of a debtor to repay his debt, or that the punishment for theft
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Mohammad H. Fadel
is amputation of the hand; b) controversial rules of Islamic law derived through the reason-
able interpretation of revelation (al-mukhtalaf fı̄hā); and c) the universal rules of Islamic juris-
prudence (al-qawāʿid al-kulliyya). These first-order rules are discovered exclusively through
the hermeneutical techniques and juridical principles set out in the principles of theoretical
jurisprudence, and for this reason, they are properly described as pre-political rules: neither
their ontological existence, nor our apprehension of them as morally obligated individuals
(mukallafūn) is contingent on the existence of any particular political order.
These pre-political rules do not exhaust the body of rules that make up Islamic law, how-
ever, the first-order rules include rules that authorize individuals to make rules for themselves
by exercising a power granted to them by revelation. These are the second-order rules that
make up the second category of the rules of Islamic law identified by al-Qarafi. Al-Qarafi
gives two examples of first-order rules that confer rule-making power on all of humanity, the
vow (nadhr) and the oath (al-yamı̄n).6 Another such first-order rule, according to al-Qarafi,
is the right of public officials to make rules for the public, a conclusion he justifies using a
rational proof and a legal proof. The rational proof is the a fortiori analogy: Insofar as God
granted the power to originate post-revelatory rules to all human beings, without regard to
their learning or in view of a pressing necessity, through the devices of the vow and oath, a
fortiori God granted that same authority to public officials, on account of their lofty position
and the pressing necessity of making rules to bring an end to conflict, suppress aggressors and
eliminate disorder.7 In this latter case, however, the rule maker’s decision does not establish a
new, post-revelatory rule unless the rule maker has been properly appointed to an office that
grants him the power to make rules, and has appropriately exercised that power in accordance
with its terms. Thus, the market inspector may properly establish post-revelatory obligations
with respect to matters falling within his jurisdiction, such as matters involving public streets
in the city, but he may not litigate claims arising out of contracts.8 Second-order rules derived
from the exercise of powers delegated to public officials are therefore explicitly dependent
upon the existence of a legitimate political order. Accordingly, one can appropriately charac-
terize the rules of Islamic law produced via the mediation of political institutions, as political
rules, and thereby distinguish them from the pre-political rules of fiqh that are the product of
learned interpretation of revelation.
In a polity subject to an Islamic constitution, then, three kinds of rule are operative ac-
cording to al-Qarafi’s analysis. The first are the rules of fiqh, which can be understood to
form the basic law of an Islamic polity. All things being equal, individuals are presumptively
entitled to act in accordance with their rights under the rules of fiqh, and are subject to the
obligations the fiqh imposes on them, in each case, as articulated through an appropriately
constituted legal opinion ( fatwa). In the event of conflict between rights holders, or potential
conflict between rights holders, however, rights holders were obliged to submit their dispute
to a judge (qād․ı̄ or ․hākim) whose decision, provided it was not procured by fraud, and that
the judge ruled based on a reasonable interpretation of revelation, constituted an origination
(inshāʾ) of a particular rule that conclusively settled that dispute, both as a temporal matter
and in the hereafter. The result of a valid judicial decision, moreover, not only forever bound
the litigants, it also required all jurists to change their opinion regarding the proper resolu-
tion of the case and to adopt the solution applied by the judge. It is in this latter sense that
the judicial decision constitutes a post-revelatory rule: in the absence of a judge’s decision,
it would be the case that numerous rules could have applied to the dispute, some of which
would be in contradiction, as would be the case of a marriage of a woman who enters into
a marriage contract without the permission of her father. While such a marriage would be
valid according to the Hanafis, it would be invalid according to the Malikis, and before a
420
judicial ruling conclusively determining the marriage’s validity, jurists of both schools would
be entitled to issue legal opinions regarding the marriage’s validity in accordance with the
teachings of their respective legal schools. Once a Hanafi judge rules on the case, however,
and determines it is valid, even the Maliki jurists are under an obligation to recognize that
marriage as valid.
While final judicial rulings are universally binding, in the sense described above, they are
limited in effect to the litigants. Accordingly, the next case involving a woman who marries
without her father’s consent would be subject to the same conflict between the Hanafis and
the Malikis that existed prior to the judicial ruling in the prior example. That is because
judges do not have authority to resolve, conclusively, disputes about the correct rule of divine
law, a matter that al-Qarafi states is a matter for the next life. Accordingly, juristic differences
in the fiqh cannot be universally and prospectively resolved through a system of binding
precedent as one sees in modern common law systems: the only mechanism in the fiqh for the
universal and prospective resolution of a substantive dispute regarding the content of a rule
of law is for the jurists themselves to settle on a single rule, resulting in a consensus (ijmāʿ).
Al-Qarafi, however, recognizes a third kind of rule making that is capable of generating
universally binding norms, which he calls tas․arruf bi-l-imama (administrative act). Unlike
a judge’s interstitial rule-making activity, which represents the union of the pre-political
rules of the fiqh represented by the universal, but non-binding legal opinion ( fatwa), with the
particular evidence (h․ijāj) produced by litigants in the context of litigation, to produce the
binding and unassailable judicial decision (h․ukm), an administrative act is based on the office
holder’s interpretation of empirical facts in light of the public good (al-mas․lah․a al-ʿāmma). An
administrative act is neither a legal opinion, insofar as it is not based on the interpretation
of revelation, nor is it a judicial decision, insofar as it is not based on courtroom evidence.
Although it is prospectively and universally binding like a legal opinion, it is a binding rule
of law, unlike a legal opinion which binds only those who accept it as a true conception of
the law. Although an administrative act is like a judicial ruling insofar as it is binding, it is
subject to revision and even repeal in its entirety by a subsequent office holder if the successor
believes the rule is no longer consistent with the public good.
Al-Qarafi’s taxonomy of the rules of Islamic law, therefore, provide an important cor-
rective to the notion that Islamic law is limited to rules derived from the interpretation of
revelation. While it is true that such rules, which are set out in the theoretical treatises of
the jurists and communicated to the public through the mechanism of the legal opinion
(al-fatwa), represent the basic law of the Muslim community and that these rules are pre-
political, public officials complete the community’s law by making supplemental law, either
interstitially on a case-by-case basis through the binding and irrevocable mechanism of the
judicial ruling (al-h․ukm), or on a wider, albeit revocable, basis, through the mechanism of
an administrative act that relies on the office holder’s determination of the public good
(al-mas․lah․a). This last category, I argue, is effectively recognition of the right of public offi-
cials to ‘legislate’ rules that bind the community, not because they represent either a true or
probable interpretation of divine will, as is the case with a legal opinion, but because such
positive acts are necessary to achieve the well-being of the community.
Al-Qarafi, while expressly creating normative space within Islamic jurisprudence for le-
gitimate public-interest legislation, failed to provide a systematic account that set forth the
relationship between the power of public officials to legislate in accordance with the public
interest, and the rights of individuals as set out in the basic law of the community. Never-
theless, it is impossible to avoid the conclusion that for al-Qarafi, where the public official
exercised public-interest powers appropriately, that rule displaced any rights an individual
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Mohammad H. Fadel
might purport to enjoy under an otherwise valid legal opinion. It would make no sense, for
example, for al-Qarafi to defend the Maliki view that the right of a soldier in the Muslim
army to despoil an enemy warrior that he himself killed was contingent on the prior per-
mission of the ruler, and then to grant that a follower of the Shafiʿi school, which believed
that soldiers did not need the prior permission of the ruler to exercise this right, could do
so even in circumstances where the ruler, exercising his prerogatives as head of the Muslim
community, prohibits them from so doing. At least in circumstances where the public official
exercises his public-interest law-making power appropriately, then, we can be reasonably
confident that in al-Qarafi’s view, such rules pre-empt the rights of individuals in the public
to act in accordance with what would otherwise have been legitimate conceptions of their
rights as established in the fiqh.
We now must turn to the unexplored question in al-Qarafi’s theory, namely, what must
a public official do in order to establish that he exercised this law-making power appropri-
ately? In so doing, we admit that we are necessarily engaged in a reconstructive enterprise:
in contrast to the rules that determined whether a legal opinion was valid (us․ūl al-fiqh), or
whether a judicial ruling was valid (the rules of fiqh governing adjudication), there were no
systematic treatises, as far as I know, that discussed the conditions that rendered the exercise
of this power valid. Instead, various particular rulings are found that regulate the conditions
that must be satisfied so that an administrative act is valid. These conditions require us to
return to the model of agency that we argued in the previous section was constitutive of
the Islamic constitution as understood by Sunni jurists. So it is to that topic to which we
next turn.
4 Agency, accountability of public officials and the

conditions of valid administrative law making
Al-Qarafi’s taxonomy of the rules of Islamic law not only expressly made normative room for
binding legislation based on the public good rather than interpretation of divine law, it also
implied that when this power was appropriately exercised, it had the effect of pre-empting
contrary rules of the fiqh. His analysis, however, did not attempt to draw out explicitly the
conditions that would render the exercise of this public-interest-based rulemaking power
legitimate. To reconstruct what these conditions are, we necessarily need to return to the
principles of agency that underlie the Sunni constitution. In Section 2 of this chapter, we
argued that Sunni jurists adopted the fiduciary principles found in the private law of agency
to solve the basic problem of political ordering that Sunni political theology introduced:
how to make governance among equals legitimate. By declaring that public officials were
agents of the public, Sunni jurists established the principal of limited government, both in
the procedural sense that a public official could not exercise powers that had not been legit-
imately delegated to him, and in the substantive sense that a public official lacked the power
to act in contravention of the law insofar as the principles of agency law did not contemplate
appointing an agent for the furtherance of illegal ends. Section 2 stopped, however, with the
question of whether the Sunni constitution contemplated the possibility that public officials
could make law, or whether they were limited to enforcing the basic law – the fiqh – of the
Muslim community. Section 3 made clear, however, that later Muslim jurists, al-Qarafi be-
ing a foremost example, did permit public officials to make law, based solely on the public
good, even if it had the effect of restricting recognized rights that existed in basic law. In this
section, we show how the fiduciary values of agency allowed post-Qarafian Muslim jurists to
develop conditions that regulated the use of this power, but that, consistent with the model
422
of agency that underlie the Sunni constitution, they also explicitly recognized that public
officials, when they made rules based on the public good in a manner that satisfied certain
conditions, had the authority to prohibit conduct that the basic law deemed permissible, or
oblige conduct that in the view of the basic law was a matter of indifference. Moreover, when
public officials’ rule-making activities were valid, the obligation on the part of the public
to obey such public-interest rules was not merely grounded in prudence, but represented a
genuine moral obligation before God.
The first condition for the validity of an administrative act was that it had to be consistent
with the public good of the Muslim community, in accordance with the duty of the agent
to act in accordance with the well-being of the principal.9 Accordingly, al-Qarafi stated that
administrative acts of public officials are not binding unless they satisfy a public standard of
rationality, meaning, they result either in an absolute increase in well-being (mas․lah ․a khālis․a),
a net increase in well-being (mas․lah․a rājih․a), an absolute decrease in harm (darʾ mafsada khālis․a),
or a net decrease in harm (darʾ mafsada rājih․a).10 The second condition, albeit one not entirely
free of controversy in its details, was that the subject matter of the relevant decree lie within
the affairs of the public (al-mas․ālih․ al-ʿāmma), rather than the private affairs of individuals.
Maliki and Shafiʿi jurists in particular disagreed with respect to commands of the ruler di-
recting the public to perform supererogatory acts of ritual devotion: the Malikis denied any
effect to such commands because such acts, although religiously commendable, are not part
of the affairs of the public, while the Shafiʿis believed they become obligatory by virtue of
the ruler’s command to perform them. Both groups of scholars agreed, however, that with
respect to a governmental command to perform (or refrain from) an act that the revealed
law deemed permissible (mubāh ․), the command must relate to the public good before it could
become an obligation by virtue of a governmental command.11 The third condition was that
the public official issuing the command had to have a good-faith, subjective belief that his
command was lawful, i.e. compliance with the command would not lead to sin, even if what
was commanded was not mandatory by virtue of revelation.12 The fourth condition was that
the recipient of the command, from his or her subjective perspective, must be able to com-
ply with the command without committing a sin.13 The fifth condition was that the public
official who issued the rule must be acting within the scope of his jurisdiction, whether by
geography, subject matter or both.14 Accordingly, a judge appointed to hear family law cases
in Cairo, for example, could not divorce a woman in Damascus, even if his verdict was sub-
stantively correct, nor could he invalidate a contract of sale in Cairo, even if, as a matter of
substantive law, the contract is universally recognized as unenforceable. Finally, al-Qarafi
added that judgments and rules made by a public official are not valid if they are tainted by
a conflict of interest.15
If these conditions are satisfied, and the decision maker is untainted by a conflict of interest,
the administrative act is valid and binding, both from a moral perspective and a prudential one.
One historical example of juristic treatment of law making by government officials is found in
a legal opinion issued by a 15th-century Shafiʿi jurist in the Mamluk era, issued in response to
a question concerning the legality of a recently promulgated price-control regulation.16 The
mufti concluded that the petitioner, who was apparently a follower of the Shafiʿi school of
law, was morally bound to follow a controversial price-control regulation, even though the
petitioner believed such a regulation to be unlawful. The mufti reasoned that so long as the
ruler had a good-faith belief that the rule was permissible – and that would be satisfied in this
case given the fact that the Maliki school of law permitted such regulations – and that the
petitioner could comply with the rule without committing a sin, the rule bound him, both
morally and prudentially.17 The difference between moral and prudential duties of obedience
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Mohammad H. Fadel
is not inconsequential from the perspective of the rule of law: if obedience in this case were
only a prudential obligation, the merchant would be free to ignore it if he could do so without
risking detection, for example. The fact that jurists recognized in this circumstance clearly a
moral obligation on the part of Muslims to obey the rule, regardless of the ruler’s ability to
enforce the command, and not one based simply on the ruler’s arbitrary power of the ruler,
establishes clear evidence that they did not limit moral obligations to rules of conduct that
were unequivocally established by revelation; rather, duly formulated human legislation could
also generate moral obligations which, although not found in the basic law established by rev-
elation, was nonetheless morally binding upon Muslims once the law was made. A ccordingly,
if the ruler prohibited smoking in public places, it became sinful to do so.18
While later jurists affirmed the moral nature of the obligations generated by valid gov-
ernmental decrees, they did not provide an express theory explaining why the command
of a government official could generate a moral duty above and beyond those imposed by
revelation. Careful analysis of the pre-requisites that they required a governmental command
to meet in order for it to generate both moral and prudential duties of obedience, however,
suggests that the principle of legitimacy which was at stake was that of agency: whenever
public officials acted in conformity within the ideals of what constitutes the Muslim com-
munity’s public agent, the Muslim community becomes morally bound to adhere to their
decisions, just as a principal becomes morally bound by the duly authorized actions of his
agent taken in conformity with the principal’s instructions. Just as al-Kasani declared that
the caliph’s actions in appointing and dismissing judges is in reality the actions of the Muslim
public, so too, then, the valid commands of public officials taken are nothing other than the
actions of the Muslim public. The individuals constituting the Muslim public become bound
not because the public official is accurately interpreting divine will, but rather because he
has properly exercised the power of the Muslim public to pursue its well-being within the
constraints imposed by the Shariʿah. In obeying the commands of public officials in that re-
gard, individuals are only obeying themselves with respect to the conclusive, if provisional,
determination of where the community’s temporal well-being lies.
5 Implications of the Sunni constitutional theory

for modern Muslim-majority states
Some Muslim scholars who are understandably concerned about the practical implications of
contemporary calls ‘to apply the Shariʿah (tat․bı̄q al-Shariʿa)’ in the name of preserving the in-
tegrity of divine sovereignty have objected to such a programme, in part arguing that there is
no such thing as applying divine law, and that in all instances, state law is necessarily human
law. Moreover, these scholars have also suggested that there is an unbridgeable conceptual
gap between divine law as an idea, and the idea of popular sovereignty that underwrites the
modern state. Accordingly, Muslims should instead be content with preserving the Shariʿah
as a reservoir of moral ideals that can be used as a source of inspiration for particular political
projects or laws, but the state should never claim that it is ‘applying Islamic law’.19 Indeed,
Wael Hallaq in a recent work goes even further, and argues that there is an absolute incom-
patibility between the idea of the Shariʿah and the idea of the modern state.20
More generally, the fear an ‘Islamic state’ creates even among observant Muslims is that
the state will use its claim to be Islamic to silence all dissent, and claim that dissent to its
policies amounts to disobedience to God. Secularists, on the other hand, while sharing that
fear, also fear that there would be no room for democratic self-government in an Islamic
state insofar as the legislative function would be an exercise simply of law finding through
424
interpretation of revelation rather than law making by means of deliberation. Furthermore,

any constitutionalization of Islamic law would lead to a result in which the pre-modern
corpus of Islamic law determines the content of the state’s positive law and renders reform
efforts, particularly in areas such as family law, impossible.
A conception of an Islamic constitution developed from the model outlined in this chap-
ter, however, responds to both of these concerns. First, it makes clear that in promulgating
legislation, while there is at least a prima facie moral duty to obey the law (on the assumption
that the state is in fact properly representative and the other Islamic conditions of legislative
validity are satisfied), the duty to obey the law does not derive from its status as a true con-
ception of divine law, but rather because it represents a proper manifestation of the public’s
will in formulating and pursue its own good. This manifestation of the public’s will is not
absolute, however, as individual members of the public, even if bound to adhere to the con-
tent of the law, remain morally free to contest both the legality of the rule, insofar as they may
disagree with whether it represents a permissible understanding of divine law,21 and to insist
on an excuse from adhering to the law if they can credibly claim that, from their subjective
perspective, compliance with the law would cause them to sin. Second, the conception of
an Islamic constitution set out here makes clear that the fiqh, although representing the basic
law of the Muslim community, does not provide individuals with a set of non-negotiable and
absolute rights and obligations that are outside the political process. Rather, they represent
a kind of baseline set of entitlements that may be varied through the exercise of legitimate
deliberation about the public good, so long as the revisions made to the rights and duties that
are set out in the basic law do not either compel individuals to sin, or compel them to refrain
from performing an obligatory act. Reforming rules of family law, for example, whether
with respect to granting women equal capacity to enter the marriage contract or equal rights
to exit it by divorce, could be accomplished as a manifestation of the public’s will to exercise
its freedom by amending the terms of the marriage contract as set out in the fiqh by including
various stipulations that go beyond the minimum set out in the basic law, just as a particular
husband may do so in favour of his wife in their particular marriage contract. Instead of such
legislation depending for its moral justification on controversial claims regarding the proper
meaning or intent of divine revelation, such reforms would rest on the much firmer grounds
(and metaphysically less controversial grounds) of a permissible exercise of the public’s free-
dom to determine what will result in its own collective well-being.
What this analysis of Islamic constitutional law suggests, therefore, is that Muslims are not
in need of any new theories of interpretation in order to justify the reform of the content of
Islamic law. Indeed, to the extent that they continue to be fixated on interpretive reform of
the basic law, they reinforce a paradigm of law that excludes, or at a minimum marginalizes,
political deliberation about the public good in favour of a theological inquiry into the actual
content of divine law that can never, at least within the theological assumptions of Sunnism,
achieve even a temporary resolution. Islamic positive law, on the other hand, as set out in
this argument, need not claim for its effectiveness more than that it represents a non-sinful
conception of divine law, and that it is reasonably believed to be consistent with the public
good, for it to constitute legitimate and binding law. And in any event, it also leaves open
the possibility for criticizing, revising and even repudiating both assumptions with respect
to any particular legislative act, thus preserving the political community’s freedom to make
and revise laws for itself, without sacrificing the morally binding character of such laws for
so long as they remain in force. What Muslims need, therefore, is not a better hermeneutics,
but rather a better politics that can legitimately and effectively represent them. In short, what
they need to effect reform of Islamic law is democracy.
425
Mohammad H. Fadel
Notes
1 See, e.g., Thomas Hobbes, and J. C. A. Gaskin, Leviathan (Oxford: Oxford University Press, 1998).
2 A good example of implausible interpretations of revelation are attempts to interpret the use of the verb
․da-ra-ba in the notorious ‘beating’, verse 4:34, to mean ‘go away’ instead of ‘beat’. Neal MacFarquhar,
‘Verse in Koran on Beating Wife Gets New Translation’, New York Times, 25 March 2007, http://
www.nytimes.com/2007/03/25/world/americas/25iht-koran.4.5017346.html?pagewanted=
all&_r=0 (accessed 24 July 2018).
3 The most famous dissident is the 20th-century Egyptian scholar, ʿAli ʿAbd al-Raziq, who denied
that the Prophet Muhammad was ever a worldly ruler. See ʿAli ʿAbd al-Raziq and Mamduh Haqqi,
Al-Islam wa-Usul al-Hukm: Bahth fi al-Khilafa wa-l-Hukuma fi al-Islam (Beirut: Dar Maktabat al-
Haya, 1966).
4 ‘The Caliph is merely the public’s messenger … and insofar as he is merely their messenger, his
actions are the equivalent of acts done by the Muslim public. … Accordingly, when the Caliph
removes a judge or a provincial governor, the judge or the provincial governor, as the case may be,
is in fact removed from his position by virtue of that command, but neither is removed from office
upon the Caliph’s death, because, in reality, neither was removed by virtue of the Caliph’s com-
mand, but rather by virtue of the public’s command to remove him (innamā al-khalı̄fatu bi-manzilat
al-rasūl ʿanhum … wa-idhā kāna rasūlan kāna fiʿluhu bi-manzilat fiʿl ʿāmmat al-muslimı̄n … inna al-khalı̄fa
idhā ʿazala al-qād․ı̄ aw al-wālı̄ yanʿazil bi-ʿazlihi wa-lā yanʿazil bi-mawtihi li-annahu lā yanʿazil bi-ʿazl al-
khalı̄fa ․haqı̄qatan bal bi-ʿazl al-ʿāmma)’. Abu Bakr al-Kasani, Badaʾiʿ al-Sanaʾiʿ, 2nd edn (Beirut: Dar
al-Kutub al-ʿIlmiyya, 1986), 16.
5 For an overview of the standard conception of the relationship of the Shariʿah to the state in Islamic
history, see Mohammad Fadel, ‘State and Sharı̄ʿa’, in The Ashgate Research Companion to Islamic Law,
ed. Peri Bearman and Rudolph Peters (Farnham, Surrey: Ashgate, 2014), 29–42.
6 A vow gives every adult the power to transform a morally commendable act (mandūb) into a morally
obligatory one (wājib). An oath allows a person to transform the occurrence or non-occurrence of
any event into a ground of legal obligation, e.g. ‘If I strike ʿAmr, my slave, Zayd, is free’.
7 Shihab al-Din al-Qarafi, Al-Tamyiz, 28.
8 Ibid., 168.
9 Abu al-Barakat Ahmad b. Muhammad b. Ahmad al-Dardir, Al-Sharh al-Saghir, ed. Mustafa Kamal
Wasfi (Cairo: Dar al-Maʿarif, n.d.), 508 (an agent is obliged to act for the benefit of the principal
(wa-faʿala al-wakı̄l al-mas․lah․a wujūban … li-muwakkilihi)).
10 Shihab al-Din al-Qarafi, Al-Furuq (Beirut: ʿAlam al-Kutub, n.d.), 39. See also, Shihab al-Din
Ahmad b. Muhammad Makki, Ghamz ʿUyun al-Basaʾir fi Sharh al-Ashbah wa-l-Nazaʾir (Beirut: Dar
al-Kutub al-ʿIlmiyya, 1985), 369 (the actions of the Imam bind the public only if they are in the
public good (al-qāʿida al-khāmisa: tas․arruf al-imām ʿalā al-raʿiyya manūt․ bi-l-mas․lah․a)); Jalal al-Din al-
Suyuti, Al-Ashbah wa-l-Nazaʾir (Beirut: Dar al-Kutub al-ʿIlmiyya, 1990), 121.
11 See, for example, Muhammad b. Ahmad b. ʿArafa, Hashiyat al-Dassuqi ʿala al-Sharh al-Kabir (Bei-
rut: Dar al-Fikr, n.d.), 406–7 (iʿlam anna mah․alla kawn al-imām idhā amara bi-mubāh ․ aw mandūb tajib
․tāʿatuhu idhā kāna mā amara bihi min al-mas․ālih․ al-ʿāmma); Sulayman b. Muhammad b. ʿUmar, Hashi-
yat al-Bijirmi ʿala al-Khatib (Beirut: Dar al-Fikr, 1995), 238 (duty to obey a command mandating the
performance of an act that revealed law classifies as permissible becomes obligatory only if it relates
to the public good, like refraining from smoking); Hashiyat al-Imam ʿAbd al-Hamid al-Shirwani ʿala
Tuhfat al-Muhtaj (Beirut: Dar Ihyaʾ al-Turath al-ʿArabi, n.d.), 69, 71. See also, Al-Qadi Abu Bakr b.
al-ʿArabi, Ahkam al-Qurʾan, ed. Muhammad ʿAbd al-Qadir ʿAta (Beirut: Dar al-Kutub al-ʿIlmiyya,
2003), 102–3 (stating that the ruler was delegated power only to vindicate the rights of the public,
not the rights of particular individuals).
12 Ibn Hajar al-Haytami, Al-Fatawa al-Fiqhiyya al-Kubra (Cairo: al-Maktaba al-Islamiyya, n.d.), 235–6
(obedience is obligatory if the ruler believes the command is lawful); Muwaffaq al-Din ‘Abdallah
b. Ahmad b. Muhammad b. Qadama, al-Mughni (Cairo: Maktabat al-Jumhuriyya al-’Arabiyya,
1964), 366 (if the ruler issues a command which he believes is illegal, and it is carried out, the ruler
is personally liable).
13 See, for example, al-Kasani, Badaʾiʿ al-Sanaʾiʿ, 100 (orders of the ruler should be obeyed unless they
are known to be sinful); Muhammad b. Muhammad b. ‘Abd al-Rahman al-Hattab, Mawahib al-Jalil
li-Sharh Mukhtasar Khalil (Beirut: Dar al-Fikr, 1992), 250 (if the ruler orders a person to kill, ampu-
tate or unjustly appropriate property, the latter must not obey the command, and if he does, he is
426
liable for retaliation (qis․ās․) and the value of the unlawfully seized item (al-ghurm)); see also, al-Khatib
al-Shirbini, Mughni al-Muhtaj ila Ma’rifat Ma’ani Alfaz al-Minhaj (Beirut: Dar al-Kutub al-’Ilmiyya,
1994), 5:539; Ibn Qudama, 366. Ibn Qudama in this case limited this requirement to a person with
an independent capacity to interpret the law; non-specialists, on the other hand, were entitled to
adopt the legal reasoning of the public official who had issued the command, at least in cases whose
legality was a matter of legal reasoning (ijtihād).
14 Al-Qarafi, al-Furuq., 40 ( fa-yulh․aq bihi al-qad ․ı̄ bi-ghayr ʿamalihi fa-innahu lā tatanāwaluhu
․āʾ min al-qād
al-wilāya li-anna ․sih․․hat al-tas․arruf innamā yustafād min ʿaqd al-wilāya wa-ʿaqd al-wilāya innamā yatanāwal
mans․iban muʿayyanan wa-baladan muʿayyanan fa-kāna maʿzūlan ʿammā ʿadāhu lā yanfudh fı̄hi ․hukmuhu
wa-qālahu Abu Hanifa wa-l-Shafiʿi wa-Ahmad ibn Hanbal … wa-mā ʿalimtu fı̄hi khilāfan).
15 Ibid., 43 (al-qāʿida anna al-tuhma taqdah․ fı̄ al-tas․arrufāt ijmāʾan min ․haythu al-jumla).
16 Ibn Hajar al-Haytami, Al-Fatawa al-Fiqhiyya al-Kubra, 235–6.
17 Ibid. (distinguishing the obligation to obey inwardly ( fı̄ al-sirr) and outwardly ( fı̄ al-jahr)). Other ju-
rists apply the terms bāt․in and ․zāhir to express the same notions of inward and outward compliance.
See, for example, Hashiyat al- al-Shirwani, 71.
18 Ibid.
19 See, for example, Khaled Abou El Fadl, Islam and the Challenge of Democracy (Princeton, NJ: Princ-
eton University Press, 2015), and Abdullahi an-Naʿim, Islam and the Secular State (Cambridge, MA:
Harvard University Press, 2008).
20 Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Co-
lumbia University Press, 2012).
21 In other words, the power to make positive law does not abrogate dissenting views about the con-
tent of the basic law itself, as is clear from the price-setting case discussed above. Even though the
mufti in that case replied that the petitioner was under a moral obligation to adhere to the price
restraint, the mufti did not revise the basic position of the Shafiʿi school that denied the legitimacy
of price restraints as a matter of the basic law of Islam.

Abou El Fadl, Khaled. Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press,
2015).
ʿArabi, Oussama. Studies in Modern Islamic Law and Jurisprudence (London: Kluwer Law International,
2001).
Crone, Patricia. God’s Rule: Government and Islam (New York: Columbia University Press, 2004).
Fadel, Mohammad. ‘Islamic Law Reform: Between Reinterpretation and Democracy’. Yearbook of
Islamic and Middle Eastern Law 18(1) (2017): 44–90.
Fadel, Mohammad. ‘State and Sharı̄ʿa’. In The Ashgate Research Companion to Islamic Law, ed. Peri Bear-
man and Rudolph Peters (Farnham, Surrey: Ashgate, 2014), 29–42.
Feldman, Noah. The Fall and Rise of the Islamic State (Princeton, NJU: Princeton University Press,
2008).
Fox-Decent, Evan. Sovereignty’s Promise: The State as Fiduciary (New York: Oxford University Press,
2011).
Hallaq, Wael. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: C
olumbia
Naʿim, ʿAbduallahi Ahmed al-. Islam and the Secular State (Cambridge, MA: Harvard University Press,
2008).
Qarafi, Shihab al-Din Ahmad b. Idris al-. The Criterion for Distinguishing Legal Opinions from Judicial
Rulings and the Administrative Acts of Judges and Rulers, trans. Mohammad Fadel (New Haven, CT:
Yale University Press, 2017).
Schacht, Joseph. ‘Problems of Modern Islamic Legislation’. Studia Islamica 12 (1960): 199–29.
427
26
Terrorism, religious violence
and the Shariʿah
Ahmed Al-Dawoody
Introduction
The Islamic scriptural sources (Qurʾan 5:33–4) treated a specific form of terrorism that took
place during the Prophet’s lifetime. This treatment was considerably developed/regulated
by the classical Muslim jurists under the titles of al-h ․irāba, by the Maliki and Hanbali
schools of Islamic law, or qat․ʿ al-t․arı̄q (banditry, highway robbery, piracy, terrorism), by
the Hanafi and Shafiʿi schools, though some Hanafi jurists also call it al-sariqa al-kubrā (the
great theft). A specific form of religiously motivated violence or terrorism sparked, as most
scholars believe, during the reign of the fourth caliph ʿAli b. Abi Talib (r. 656–661) and
as such, since it was not treated in the scriptural sources, was not adequately developed/
regulated in the classical Islamic legal literature. The perpetrators of this specific form of
religious v iolence/terrorism are called khawarij (literally those who come out), i.e. against
the ruler(s). Although both forms of ․hirāba and khawarij satisfy the main elements of the cur-
rent phenomenon of terrorism, for specific methodological and historical reasons, the four
Sunni schools of Islamic law have failed to provide a systematic legal treatment of the kha-
warij including, in particular, their punishments. A far more serious issue here is the prev-
alent confusion in both classical and current Islamic legal discourses between the khawarij
and the bughā (armed rebels) which is used and abused to delegitimize and criminalize both
armed rebellion and sometimes even peaceful opposition to the state authorities. There-
fore, the main aims of this chapter are, first, to identify what constitutes terrorism and its
punishments under Islamic law, and second, to demarcate the lines between terrorism and
legitimate armed rebellion against the state in Islam, if there are any. The discussion focuses
mainly on the classical legal literature of the four Sunni schools of Islamic law. This chapter
argues that the Islamic law of terrorism developed by the Muslim jurists of the second/
eighth and third/ninth Islamic centuries identifies most of the main elements of the current
phenomenon of terrorism, but not treating this specific historical phenomenon of religious
violence/terrorism known as the khawarij under the law of terrorism constitutes a lacuna in
the Islamic legal tradition.
428
Terrorism, religious violence and Shariʿah
1 Terrorism
Almost every known human society has experienced some form of terrorism. The Qurʾanic
texts 5:33–4 addressed a specific horrific incident that took place during the Prophet’s life-
time and mainly regulated the punishment for the culprits as follows:
Indeed, the retribution for those who yuh․āribūn (make war upon) God and His Mes-
senger and strive to make fasād (destruction, damage) in the land is that they be killed
or [emphasis added here and below] gibbeted or have their hands and feet amputated
from opposite sides or they be banished from the land; this is a degradation for them in
this world and in the Hereafter they will receive a grave chastisement. Excluded [from
this retribution] are those who repent before you capture them; and be sure that God is
All-Forgiving All-Merciful.1
Although this text addresses an incident of armed robbery in which the culprits brutally
severed the limbs of their victims and intimidated the passers-by during their escape, classical
Muslim jurists developed a description of the crime of ․hirāba in the light of the above suc-
cinct yet key Qurʾanic term in the subject ‘make fasād (destruction, damage) in the land’ and
the acts of terror they witnessed that considerably matches with the description of the main
elements of the current phenomenon of terrorism. The word used for terrorism in contem-
porary Arabic usage is al-irhāb, although it was never used in the Qurʾan, in the sense of ter-
rorism. Its derivatives occur eight times in the Qurʾan, seven times in the sense of fear (2:40;
7:116, 154; 13:59; 16:51; 21:9; 28:32) and once in the sense of deterrence (8:60).2 Although
usually defined in slightly different ways, since the earliest available legal literature of the
four Sunni schools of Islamic law, which dates back to the second/eighth-century, classical
Muslim jurists agree on the following description of the crime of ․hirāba: ‘a group of Muslims
who under the threat, or use, of arms attack or merely intimidate or terrorize their victims in
order to overtly and forcefully rob, kill or merely terrorize their victims’.3
In December 2003, the Mecca-based Islamic Fiqh Council, affiliated to the Muslim
World League, brought a 20th-century dimension to the Islamic definition of the crime of
․hirāba/terrorism as follows:
Terrorism is an atrocity committed by individuals, groups or states against the human

being (his religion, life, mind, property and honour). It includes all forms of intimida-
tion, harming, threatening and killing without a just cause and all acts of banditry and
violence that take place in the wake of an individual or collective criminal plan aimed at
spreading the terror among people by exposing their life, liberty or security to danger,
including the harm inflicted to the environment or to a public or private utility, or ex-
posing one of the national or natural resources to danger.4
In its 17th meeting held in Jordan on 24–28 June 2006, the Council affirmed that all current
forms of terrorist actions fall under the crime of ․hirāba. Although the world has not agreed
yet on a common definition of terrorism and irrespective of the wording of these classical and
contemporary Islamic definitions of the crime of ․hirāba, in particular, the classical Islamic legal
definitions satisfy the following main elements of the crime of terrorism in its current forms.
1) Organized and/or overt use of force. Since this heinous crime could include several crim-
inal acts such as murder, armed robbery, piracy, intimidation and cutting off the limbs
429
Ahmed Al-Dawoody
of victims, this element distinguishes between the same criminal acts when committed
under the crime of ․hirāba and when classified merely as acts of murder or theft, etc. by
individual criminals. A major consequence here is that the punishment is grossly more
severe under the law of ․hirāba. That is because under the crime of ․hirāba such acts are
committed by a group of organized criminals who therefore possess a degree of what
the classical jurists described as shawka or manʿa (power, force). This means that their
criminal activities are undertaken mostly in a premeditated manner. No less importantly,
their organized use, or intimidation of the use, of force is used in an overt manner which
indicates mukābara/mujāhara (an overt flagrant challenge) to state authorities and hence
constitutes a great danger to stability and security of society at large. Furthermore, as
pointed out by the Andalusian jurist exegete al-Qurtubi (d. 1272), it also constitutes a
danger to the economy of society.5 That is because any individual(s) can be the victim(s)
of this crime and hence it causes a widespread fear in the entire society which endan-
gers the security and economy of any country. For this reason, the Qurʾanic text above
figuratively describes the crime of ․hirāba as a war waged against God and His Messenger
because of the usually indiscriminate nature of targeting/attacking the victims and the
wanton destruction and damage it may cause to the entire society. To a great extent, this
situation describes the current terrorist groups or organizations, clandestine or otherwise,
who illegally and indiscriminately use force against mostly civilian victims in a daring
challenge to the national and international laws prohibiting such acts of terrorism.
2) Use, or intimidation of use, of force. The Hanafi, Shafiʿi and Hanbali jurists, in partic-
ular, stressed the element of the use of force/arms and sometimes they even refered to
certain simple and primitive arms such as sticks or stones. Irrespective of the primitive
or lethal nature of the arms used against the victims, what the classical Muslim jurists
intended to stress here is that such use of arms against peaceful civilians who are not
prepared for such attacks inculcates a state of widespread fear and intimidation among its
victims. But it is interesting to find out that the Maliki jurists, in particular, specifically
include under the crime of ․hirāba the mere act of intimidation or the threat of the use of
force obviously because intimidation could create a similar context of widespread fear
that may endanger stability in any society. Here also this element of the threat of the use
of force and intimidation indicates a daring challenge to the state authorities and this is
also one of the reasons of the severe punishments the convicted perpetrators of this crime
receive.
3) The lack of a justification for their criminal acts altogether. Unlike the current defini-
tions and studies of terrorism which focus on the motives of the terrorists, specifically
the political ones, classical Muslim jurists did not focus much on the motivations behind
the resort to the forms of terrorist actions in their time. Instead they focused on what
constitutes the acts of terrorism and their punishments. Nonetheless, the Hanafi jurists
usually refereed to armed robbery as a main motive behind ․hirāba. Hence, the victims
of the crime of ․hiraba are usually random and more importantly there is no enmity be-
tween the culprits and their victims. The element of justification behind the resort to
the use of force here is of particular importance because it is one of the main distinctions
between rebels and khawarij, on the one hand, and terrorists, on the other. Unlike armed
rebels and the khawarij, culprits of the crime of ․hirāba do not even claim to have a taʾwı̄l
(a justification) or a just cause for their use of force. That is because, in the case of armed
rebellion, a taʾwı̄l, a justification is a pre-requisite for the status of rebels even if their
justification is not blatantly plausible. And if the rebels have organized power and force –
and for some jurists, a leadership – and they use force solely against state authorities and
430
avoid targeting civilians or civilian property and that their use of force is strictly linked
to achieving their supposedly just cause, they will not be held liable for the damage they
cause during hostilities as stipulated under the Islamic law of rebellion. But it should be
added here that what identifies the existence of the crime of ․hirāba is the use or threat of
the use of force against peaceful victims regardless of whether the culprits have justifi-
cations or not. In fact, what constitutes one of the main differences between the current
forms of terrorism perpetrated by Muslims and the context of terrorism treated in the
classical Islamic legal literature is that current terrorism is mainly motivated by religious
or political goals.
4) The helplessness and victimization of the targets. The rationale behind this element as is
reflected in the classical Muslim jurists’ deliberations is that the context of the crime of
․hirāba does not refer to any of the contexts of hostilities between armed adversaries who
are prepared for any armed attack. This also distinguishes the context of the crime of
․hirāba from armed rebellion because, as referred to above, armed rebels do not target ci-
vilians and their use of force is strictly limited to achieving the goal, or what they believe
the just cause, of their rebellion. In other words, the victims of ․hirāba are left defenceless
and helpless in the face of their attackers. In addition to that it indicates that there is no
just cause for attacking the victims, who are not only peaceful defenceless civilians but
also have done nothing wrong to the part of the perpetrators of the crime of ․hirāba. It goes
without saying that here perpetrators of the crime of ․hirāba do not abide by the Islamic
regulations on the use of force since they randomly, indiscriminately and stealthily attack
their peaceful civilian victims. Hence, it is of paramount importance to note that unnec-
essary use of force by both the state authorities and the rebels disqualifies them from treat-
ment under the law of rebellion. For example, any use of force which cannot be described
as a mere defence to put down the rebellion on the part of the state authorities or which
cannot be described as merely directed against state authorities and limited to achieving
the justifications of the use of force on the part of the rebels will be a violation of the
regulations on the use of force in the case of internal armed conflict. As a consequence,
both armed rebels and state army soldiers will be held equally liable under Islamic law for
any violations of these strict rules on the conduct of war during armed rebellion.
This specific concept of helplessness and victimization led, first, Abu Hanifa (d. 767),
the eponymous founder of the Hanafi schools, and a few jurists of the Hanbali school to
restrict the application of the crime of ․hirāba to crimes committed in the desert or un-
populated areas simply because victims are lā yalh ․aquhum al-ghawth (cannot be rescued,
helped) in these places. But in populated areas or in the villages, victims can be rescued
either by the police or the ordinary public. In other words, this context of helplessness
and defencelessness creates a state of irhāb, ikhāfa (intimidation, terror, widespread fear)
not only among the victims also but among the rest of society because any individual
could be the victim of such terror attacks. For this very reason, Abu Hanifa excludes
women from the punishment of the crime of ․hirāba, because by their very physical nature
they cannot create such a state of widespread irhāb, ikhāfa.6 Second, the Maliki jurists by
analogy extended this concept to include other crimes under the crime of ․hirāba, such
as killing by stealth and poisoning, simply because the victims are helpless and cannot
defend themselves. It is worth adding here that some of the Hanbali jurists apply the
crime of ․hirāba if such crimes are committed at sea.7
Although the nature, contexts and forms of terrorism often change, the above specific
context and the deliberations of the classical Muslim jurists over what constitutes the crime of
431
Ahmed Al-Dawoody
․hirāba largely echo the modern phenomenon of terrorism. The above elements of the threat,
or the use, of force against helpless and defenceless peaceful civilians exist in all terrorist acts
taking place at present at the hands of either Muslims or non-Muslims. However, the context
treated by the classical Muslim jurists indicates rather a context of domestic terrorism rather
than international terrorism. It took place in Muslim territories and the culprits and victims
were mostly Muslims or permanent non-Muslim citizens of the Islamic state. This can be
understood in light of the fact that at the time Muslim individuals or groups could not move
freely in non-Muslim territories, let alone carry arms and commit terrorist attacks in such
territories. In fact, contemporary Muslim scholars added little to the discussion of the subject
of terrorism under Islamic law. They mainly included some modern forms of terrorism to the
primitive forms discussed above by their classical predecessors. For example, some modern
scholars argued for including organized assassinations of politicians or businessmen, kidnap-
ping for ransom, mafia gangs, drug trafficking, hijacking airplanes, ships, etc., and terrorist
explosions.8 In fact, the Qurʾanic term generally guiding the description of the crime of
․hirāba, ‘make fasād (destruction, damage) in the land’, includes any current or future form
of illegal damage or destruction in a non-fighting situation or the threat and intimidation
of the use of force against peaceful civilians as shown within the context discussed above. But
interestingly and fortunately, the treatment of what constitutes terrorism under Islamic law
focuses on the actions, the elements and context of this heinous crime, irrespective of, and
unlike the modern world’s unwarranted focus on, the political or social motivations of the
terrorist actions. Indeed, the classical Muslim jurists’ approach avoids the misuse of the label
of terrorism and assures that culprits of the same criminal acts receive the same punishments
regardless of the nature of their motivations.
The punishment of ․hirāba falls under the category of ․hudūd because its punishment is pre-
scribed in the Qurʾan. It is worth recalling that this heinous crime is figuratively described
as a war against God and His messenger because of the danger it constitutes to society as
a whole. Hence, it constitutes a crime against both what is described in Islamic parlance
as ․h uqūq Allah (rights of God) and ․h uqūq al-ʿibād (rights of the humans), i.e. civil liability.
Partly, therefore, the punishment of ․hirāba is the severest under the Islamic penal code.
Without getting into the details of the jurists’ deliberations, they split into two groups: the
majority which includes the Hanafis, Shafiʿis and Hanbalis maintain that the four specific
punishments included in the above Qurʾanic texts – i.e. execution, gibbeting, amputation of
the right hand and left foot, and banishment/imprisonment – are listed in a manner that in-
dicates a specific order according to the crimes committed. In other words, execution is the
punishment of a person convicted of ․h irāba who kills his victim, and gibbeting and/or am-
putation can be added if he also robbed his victims. If the convicted criminal only kills his
victims without robbing them, then only execution is the punishment. If the criminal only
robbed his victim, then his punishment is the amputation of the right hand and left foot. If
the criminal only intimidated/terrorized his victims, then his punishment is banishment/
imprisonment. However, the Maliki jurists argue that these punishments are intended to
give the judge the freedom to choose the punishment that is suitable to the case of each
convicted criminal. For instance, if the criminal is clever in planning the crime, he is to
be executed because the rest of the punishments will not stop him from being a danger to
society. While if he lacks this skill, but has the physical ability to carry out the crime, then
amputation is the punishment that can prevent further crimes. Thus, if the criminal lacks
both the intellectual and physical capability to commit the crime, then the judge can give
him a discretionary punishment or send him into exile. Convicted accomplices of the crime
of ․h irāba receive the same punishment as the convicted culprits according to the majority
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of the jurists, while al-Shafiʿi maintains that they receive only a discretionary punishment
left to the judgment of the judge and imprisonment.9
The above brief discussion shows that under Islamic law, the identification of what consti-
tutes terrorism and the punishment of its culprits and accomplices are crystal clear regardless
of the usual disagreement among the jurists. Moreover, the Islamic treatment of terrorism
provides a fully developed framework that may include new forms of terrorist acts as long as
the above elements are met. The significance here is that the lack of ambiguity in the iden-
tification of terrorism to a great extent could prevent the manipulation of the law by trying
under the law of terrorism the political opponents of the state, particularly armed rebels who
are to be treated, not tried, according to a different law. Unfortunately, it is because of the
historical and geographical proximity between two forms of internal hostilities that took
place during the reign of the Fourth Caliph ʿAli b. Abi Talib (r. 656–661), namely, armed
rebellion and the khawarij, that a considerable degree of confusion in differentiating between
them has existed since the second Islamic century in the Islamic legal and theological litera-
tures, as studied below.
2 Religious violence
At the outset, it should be emphasized here that the term ‘religious violence’ is used to refer to
the phenomenon or movement known in Islamic historical, legal and theological literatures
as the khawarij. Obviously, it is also used to describe any contemporary acts that fall under the
same description. The term ‘religious violence’, insightfully suggested by the editor of this vol-
ume in the title of the chapter, or more precisely ‘religious terrorism’, as used in the remaining
part of this chapter, is purposefully used here to refer to the khawarij, partly because it exactly
matches the definitions included in the classical Islamic legal literature. Furthermore, the dis-
tinction between the phenomenon of terrorism treated in Islamic law under the title of ․hirāba,
discussed above, and the specific form of religious terrorism treated under the title of khawarij
is deliberately continued here to prove the lack of a systematic or developed treatment of the
law of the khawarij. That is particularly because despite the fact that the khawarij share most of
the elements of the crime of terrorism discussed above, there is no definite punishment speci-
fied for the khawarij in the Islamic penal code. The main reason for the lack of this punishment
is that the khawarij emerged after the demise of the Prophet and hence since this phenomenon
was not treated in the Islamic scriptures, jurists unjustifiably and regrettably did not develop
the punishment for acts of religious terror. However, the Hadith literature includes many
reports in which the Prophet predicted, and/or described the characteristics of, the khawarij.
The Islamic historical and legal literature disagrees over the origin of the emergence of
the khawarij. It is bizarrely suggested that the khawarij goes back to a certain incident in which
ʿAbdullah b. Dhi al-Khuwaisiri al-Tamimi objected to the Prophet’s distribution of some
property. This sort of peaceful objection by al-Tamimi is wrongly considered as an act of khu-
rūj, literally going out, i.e. against the ruler/s. Certainly, this is rather a figurative description
rather than an act that would make al-Tamimi fall under the technical legal categorization of
khawarij. Apart from this opinion, while a minority maintain that the khawarij dates back to
the group who assassinated the third Caliph ʿUthman b. ʿAffan (r. 644–656) because of his
alleged nepotism, the majority’s opinion is that the origin of the emergence of the khawarij
goes back to the violent groups who assassinated the fourth Caliph ʿAli b. Abi Talib (r. 656–
661) because they rejected his resort to tah․kı̄m (arbitration) with Muʿawiyah b. Abi Sufyan
(d. 680) in the battle of Siffin (657).10 They saw in the resort to arbitration a violation of the
Qurʾan since only the Qurʾan should be the source of tah․kı̄m. Moreover, anyone who rules
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in accordance with anything except what is revealed by God, i.e. the Qurʾan, is an infidel,
the khawarij advocated.11 The jurists’ discussion of this underdeveloped, yet important, law
focuses largely on the historical narrations and descriptions of this historical phenomenon
rather than developing the rules and regulations that govern how they are to be punished
under Islamic law. The Islamic literature describes the khawarij as follows.
1) Pious and devout worshippers who usually recite the Qurʾan and spend an excessive
amount of time on their prayers and fasting, but are ignorant of Islam and its teachings
or, at best – as anticipated in one report attributed to the Prophet – have a shallow or
a narrow understanding of Islam and the Qurʾan. They believe that any Muslim who
commits a major sin – including the Companions of the Prophet – is a kāfir (unbeliever)
and that those who commit a major sin will remain indefinitely in Hellfire. Hence, takfı̄r
(excommunication) of Muslims who commit a major sin has since then become one of
their main characteristics and a rationale for their division of Muslims into believers and
kuffār (unbelievers). In other words, as pointed out by Ibn Taymiyya (d. 728/1328), the
khawarij see themselves as representing dār al-Islām (house of Islam) while the rest of the
Muslims representing the dār al-h․arb (house of war). Their reading of the Qurʾanic text
(64:2) ‘It is He Who created you, then some of you are unbelievers and some of you are
believers’ leads them mistakenly to this twofold division which results in excommuni-
cating those who do not share their beliefs. In other words, in the opinion of the kha-
warij, any Muslim who does not follow their creed is an infidel.12 The above description
certainly was not used to refer to armed rebels or more obviously to the culprits of ․hirāba,
whom the legal literature explicitly presents as criminal terrorists whose motivations
were predominantly pecuniary. The Islamic position on the khawarij is that they are
still Muslims and cannot be solely classed on the basis of their unorthodox and heinous
acts as infidels, pure and simple. This position was recently emphasized by the current
Shaykh Al-Azhar Ahmed Al-Tayyib who rejects labelling members of the Islamic State
in Iraq and Syria (ISIS) as kuffār (unbelievers). In other words, regardless of their criminal
and heinous terrorist acts, the current Shaykh Al-Azhar rejects excommunicating ISIS
terrorists from the religion of Islam as long as they believe in its core tenets. However,
in a sense, the khawarij may be described, so far, as radical religious fanatics or funda-
mentalists. Moreover, they developed a literature of their own, an ideology and a creed
and as a consequence in Islamic theology they are studied and categorized as a heretical
sect that deviated from the true path of Islam. In addition to their strong religious-based
message, certain historical, political and social factors contributed to the emergence of
the khawarij as many historians and sociologists attempted to prove.
2) Apart from their intellectual and ideological framework, and more importantly here, the
classical Muslim jurists identify the khawarij as a group that indiscriminately, and some-
time massively, kill and commit terrorist acts against peaceful civilian Muslims including
women, children and the aged. Early Islamic historical literature shows that the kha-
warij committed widespread terrorist acts and intimidation of the public. For example,
the khawarij ‘especially the Azariqa, and the Qaramita, used methods that are difficult
to differentiate from common acts of banditry, these groups often slaughtered indis-
criminately, raped, and usurped property’.13 This leads to the important question about
their justifications, since committing these major sins and such use of terror-oriented
methods undoubtedly contravenes any religious aim and undermines any lofty political
goals. Bearing in mind that the khawarij considered anyone who commits a major sin
an infidel, the fact that the khawarij themselves – of course not all of them – committed
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a number of major sins and heinous acts such as the indiscriminate murder of civilian
Muslims, taking money from Muslims by force, as well as rape, is an inexplicable par-
adox. Recalling that the use of force by armed rebels is strictly regulated must be used
exclusively against the state authorities and must be limited to achieving the objective
of their armed rebellion, the sort of indiscriminate slaughter of peaceful civilians com-
mitted by the khawarij, let alone rape and usurpation of victims’ property, is exactly the
same as the acts punishable under the crime of ․hirāba/terrorism.
3) They allow the usurpation of the property of Muslims and/or taking it as spoils of the
war, yastah․illūn amwāl al-muslimı̄n. In war against non-Muslims, or what may be de-
scribed in modern terminology as international war, enemy property becomes spoils of
war, but in inter-Muslim fighting taking the booty of fellow Muslims is not permitted.
For example, according to the law of armed rebellion, the state is not allowed to confis-
cate the property of the rebels and even any weapons confiscated from the rebels during
the armed rebellion must be returned to the rebels after the cessation of hostilities.
Moreover, ‘the jurists of the four schools unanimously agree that it is not permitted for
the state army to use weapons confiscated from the rebels to fight against them, except
in cases of dire military necessity’.14 This proves beyond doubt the inviolability of the
property of Muslims even during acts of hostilities. Therefore, the unorthodox beliefs
and horrible atrocities committed by the khawarij in such an early period in Islamic his-
tory have left an everlasting traumatic and legal impact on the discussion of the subject of
inter-Muslim fighting. In other words, recalling the memories of the shedding of blood
among Muslims, including particularly the indiscriminate acts of terror committed at
the hands of the khawarij in early Islamic history, led the majority of classical Muslim
jurists to prefer that Muslims endure injustice and tyranny rather than resort to the use
of armed rebellion that may cause the shedding of blood among Muslims.
Therefore, these characteristics warrant the classification of this specific form or use of
force as ‘religious violence’, or ‘religious terrorism’, because the use of indiscriminate acts
of terrorism, including against peaceful civilians, is motivated by, or grounded in, certain
religious interpretations. For the purpose of this chapter and in light of the above descrip-
tion, as rightly asked by Khaled Abou El Fadl, ‘the material legal question is: What is the
status of groups such as the khawarij whose system of thought justifies the terrorizing and
victimizing of people when they are most unable to resist?’15 The following brief discus-
sion will approach this question by examining, first, the rules regulating the use of force
against the khawarij and, second, the Islamic law that will be applied against them if they
are brought for prosecution in an Islamic court. It is interesting to mention here that the
fourth Caliph ʿAli b. Abi Talib (r. 656–661) declared a wise and very tolerant policy towards
the khawarij that is reflected in the following three principles: First, they are not prevented
from attending the mosques, i.e. the non-khawarij mosques because they apparently built
mosques for the followers of their ideology. Second, they will receive a share of the booty
as long as they fight alongside the rest of the Muslims. Obviously, if the khawarij fight under
the leadership of the fourth Caliph ʿAli b. Abi Talib, this signifies acknowledgement of, and
obedience to, his legitimate authority. Third, they will not be fought unless they initiate the
fighting. This means that despite their heretical and unorthodox beliefs, the khawarij are to
be treated just like the rest of the Muslims as long as they do not initiate violence. In other
words, as pointed out by al-Shafiʿi, unorthodox groups such as khawarij cannot be prevented
from their religious or political rights as long as they were not the first to resort to the use
of force.16
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Therefore, irrespective of the historical, Hadith and theological literatures, the key to
the legal treatment of the khawarij is their use of violence and for this reason classical Islamic
law books study their case as one of the four forms of the non-international armed conflicts
developed under Islamic law because of specific precedents that took place within the first
four decades following the demise of the Prophet in 632 AD. The above brief discussion has
shown some similarities between the khawarij and the culprits of ․hirāba in the sense that both
of them commit acts of terrorism and victimize peaceful civilian Muslims. It has also shown
stark dissimilarities between the methods of force adopted by the khawarij and those adopted
by the culprits of ․hirāba, on the one hand, and the armed rebels, on the other. Because
armed rebels do not target peaceful civilians or civilian property, a set of extremely strict and
humane rules of combat must be followed by the state army when attempting to mount a
defence against them. The point here is to show by way of comparison the different rules of
combat that must be applied in these conflicts and which, in turn, will prove, in addition to
the issue of prosecution touched upon below, among other issues, the unwarranted confusion
and misuse of the misidentification of the conflict in order to punish the political opponents
of the state. The rules of combat against them include that the state army cannot: 1) initiate
the hostilities; 2) shoot to kill the rebels; or 3) pursue the rebels if they escape the fighting.
More importantly, 4) any damage to lives and property committed by both sides of the
conflict during acts of hostilities are not punishable as long as they are dictated by military
necessity and, therefore, 5) captured rebels must be set free after the cessation of hostilities.
Understandably, none of these five rules applies in the case of fighting against the culprits
of ․hirāba, who receive the severest punishments in the Islamic penal code. Bearing in mind the
similarities between the khawarij and the culprits of ․hirāba in terms of the indiscriminate killings
and acts of terrorism and victimization of peaceful civilian Muslims, which they both commit,
the rational position here is that the khawarij receive the same treatment vis-à-vis the rules of
combat and punishment as the culprits of ․hirāba. This because they commit the same acts of
terrorism, though often with different motivations: the classical legal literature shows that at
least during the first two centuries of the Islamic history, which witnessed the development of
the Islamic legal literature, the motivations of the culprits of ․hirāba are often pecuniary, while
the khawarij’s are often religious. That is to say that, regarding the rules of combat, the khawarij
should be pursued if they escaped the battlefield; the prohibition on the shooting to kill rule
may not be feasibly upheld here; if they are captured, they cannot be set free; and they have to
be prosecuted in court for any damage they cause to lives and property. Nonetheless, as referred
to above, since the primary sources of Islamic legislations (the Qurʾan and the Sunnah) do not
include specific regulations on the treatment of the khawarij, disagreements typically arose
among the classical Muslim jurists over whether the khawarij should be treated as armed rebels
or terrorists. Among the material legal consequences of the fact that, as pointed out by Abou
El Fadl, ‘the Khawarij were declared to be rebels, entitled to the treatment given to the bughā,
and not bandits’,17 are that the khawarij cannot be pursued if they escaped the fighting and, more
importantly, they will not be held liable for the lives and property they destroyed.
Therefore, and this takes the discussion to the second question, according to this unten-
able position of treating the khawarij as rebels, if a group of khawarij who commits acts of
terrorism against peaceful civilians were brought to an Islamic court for prosecution, they
will go unpunished for their terrorism. Indeed, this untenable position indicates a lacuna
in the Islamic legal treatment of the khawarij. It is true that the khawarij may share with the
armed rebels the three conditions required for an armed group to be qualified as rebels: 1)
khurūj (actual use of force); 2) manʿa/shawka (power, force); and 3) taʾwı̄l ( justification). But
the main characteristic that distinguishes the khawarij from armed rebels is that the khawarij
436
do not abide by the Islamic regulations on the use of force in addition to their notorious use
of terror-oriented methods against their civilian victims. In the case of armed rebellion,
in addition to the rules of combat mentioned above, the use of force by the rebels must be
strictly limited to achieving the cause of the rebellion and must be directed against gov-
ernment targets. Hence, armed rebels will be held liable for any damage they cause to lives
and property that is not directly related to achieving the cause of rebellion or made before
or after the rebellion. Therefore, this chapter supports the position adopted by some of the
classical Muslim jurists that the khawarij must be treated under the law of ․hirāba. In other
words, they must be held liable for their acts of indiscriminate killings and acts of terrorism
and that they do not deserve the protected status armed rebels receive under classical Islamic
law, as maintained by some other classical jurists. Regrettably, even the jurists who opined
that the khawarij are to be treated as the convicted culprits of ․hirāba did not touch upon the
punishment that the khawarij should receive. The determining factor for the prosecution the
khawarij is and should be whether they violate the Islamic restraints on the use of force or not.
Likewise, it is interesting to find that under international humanitarian law (IHL) for inter-
national armed conflicts, resistance movements in support of a party to the conflict receive
the protected status if they meet four conditions: 1) they are under responsible command;
2) they have a distinctive sign or emblem; 3) they carry arms openly; and 4) they use force
in accordance with the laws and customs of war.18 Apart from the distinctive sign, which
may not be regularly observed in such classical primitive war situations, and although not
all classical Muslim jurists stipulated that armed rebels must have a commander, this modern
IHL discussion about ‘resistance movements’ is brought here because it supports the thesis
argued in this chapter that the overarching factor which should be used in an Islamic court
to distinguish between the armed rebels and the khawarij is abiding by the Islamic regulations
on the use of force, in addition to meeting the three conditions required for being classified
as rebels. If the khawarij abide by the Islamic restraints on the use of force, then technically
under Islamic law, there will be no grounds for prosecuting them because they could fall in
the same category, and thus enjoy the protected status, of armed rebels since they fulfil the
same three conditions of the armed rebels, referred to above.
3 Conclusion
The treatment of the classical Muslim jurists of these two specific forms of terrorist acts
during the first two centuries of the history of Islam is utterly archaic, highly contextual and
methodological. Nonetheless, the current acts of terrorism perpetrated by Muslims, on the
one hand, and the greatest number of non-international armed conflicts at present taking
place in the Muslim world bring to mind this classical Islamic juristic treatment. It is interest-
ing to find out, on the levels of scholarly and juristic examination, that the current different
legitimate and illegitimate forms of the force by Muslims at present can be identified and
regulated, and punishment for only certain forms of illegitimate force can be inflicted under
classical Islamic law. It is disappointing, however, at least on the level of the practice, that
despite the fact that Islamic law in this area is not incorporated into the legal systems in the
majority of the Muslim world, classical Islamic juristic rulings are at present cherry-picked to
justify acts of terrorism and indiscriminate killings by Muslim terrorists. Moreover, on the
other hand, Islamic law is also abused by the governments in the Muslim world in the sense
that not a single government in the Muslim world has granted, or apparently will grant, the
protected status for armed rebels provided under classical Islamic law. However, the classical
Muslim jurists’ greatest achievement in this area of non-international armed conflict is that
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Ahmed Al-Dawoody
they developed a remarkably progressive law that regulates the recourse to armed rebellion
which, in the words of John Kelsay ‘prefigured (by nearly a thousand years) Lieber’s conclusion
that participation in a rebellion does not, in and of itself, make one a criminal’.19
This chapter has shown that classical Muslim jurists successfully developed a legal frame-
work that identifies and sets the punishments for the crime of ․hirāba, but they failed to de-
velop the punishments for the khawarij who commit the same acts of terrorism, a lacuna this
chapter attempts to address. In conclusion, Islamic law can make a great contribution to both
national and international criminal justice: Islamic law can diminish the use of illegitimate
use of force, humanize non-international armed conflicts, and as a consequence alleviate
the suffering of the victims. But the reality on the ground shows that non-state actors and
criminal terrorist Muslims are the ones who mainly use or abuse Islamic law to justify their
respective use of organized force or violent terrorist acts. Islamic law cannot contribute to
criminal justice unless it is institutionally utilized: a conclusion that is reached in the West,
at least in some scholarly and professional circles. Indeed, there is an opinion in the West
that Islamic law can or should be utilized, at least, to counter terrorism, humanize armed
conflicts involving Muslims, and contribute particularly to international criminal justice.
But this contribution, practically speaking, is not possible in the face of such schizophrenic
or at best dual legal systems in the majority of the Muslim world, where, apart from Islamic
family law, many areas of Islamic law including the above classical juristic discussions and
deliberations would be unheard of for many Muslim jurists. Bearing in mind the lip service
to Islamic law paid by the many Muslim countries whose constitutions dictate that Islam is
the religion of the state and/or Islamic law is a source or the source of legislation, peaceful
and violent Islamists appear to champion the case of Islamic law. Therefore, in the case of the
Islamists who zealously, emotionally, sometimes insanely and/or brutally attempt to unilat-
erally, and outside of the state institutions, apply their respective understandings of Islamic
law, it becomes imperative that Islam can and must contribute to the ongoing process of the
Islamization of societies. Apart from political ideologies and the conflicting ongoing pro-
cesses of Islamization or the de-Islamization of the societies in Muslim majority countries,
Islamic law at least for purely pragmatic considerations will be revisited by both the Muslim
and the Western worlds.
Notes
1 Translations of the Qurʾanic texts in this chapter are mine.
2 For this discussion, see Ahmed Al-Dawoody, ‘International Terrorism and the Jurisdiction of
Islamic Law’, International Criminal Law Review 15(3) (Spring 2015): 571.
3 See Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations, Palgrave Series in
Islamic Theology, Law, and History 2 (New York: Palgrave Macmillan, 2011), 171.
4 The Islamic Fiqh Council, ‘Makkah Declaration on Terrorist Explosions and Threats: Causes, Con-
sequences, Legal Opinions and Means of Protection’, The Islamic Fiqh Council Journal, 17 (2004): 34.
5 See Muhammad ibn Ahmad al-Ansari al-Qurtubi, Al-Jamiʿ li-Ahkam al-Qurʿan, vol. 6 (Cairo: Dar
al-Shaʿb, n.d.), 157. See also Sherman A. Jackson, ‘Domestic Terrorism in the Islamic Legal Tradi-
tion’, The Muslim World 91(3–4) (September 2001), 299ff.
6 See Muhammad ibn Ahmad ibn Abi Sahl al-Sarakhsi, Kitab al-Mabsut, vol. 9 (Beirut: Dar al-
Maʿrifa, n.d.), 197ff.; Jackson, ‘Domestic Terrorism in the Islamic Legal Tradition’, 297.
7 See, for example, Mustafa al-Suyuti al-Rahaybani, Matalib Uli al-Nuha fi Sharh Ghaya al-Muntaha,
vol. 6 (Damascus: Al-Maktab al-Islami, 1961), 251; Mansur ibn Yunus ibn Idris al-Buhuti, Sharh
Muntaha al-Iradat al-Musamma Daqʾiq Uli al-Nuha li-Sharh al-Muntaha, vol. 3, 2nd edn (Beirut: ʿAlam
al-Kutub, 1996), 381.
8 See, for example, Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cam-
bridge University Press, 2006), 337; ʿAbd al-ʿAziz ibn ʿAbdullah ibn Muhammad Al al-Shaykh,
438
‘Al-Irhab: Asbabuh wa-Wasaʾil al-ʿIlaj’, The Islamic Fiqh Council Journal 17 (2004): 38ff.; Dawoody,
The Islamic Law of War, 174–6.
9 See Dawoody, The Islamic Law of War, 177–83.
10 See Sulayman ibn Salih ibn ʿAbd al-ʿAziz al-Ghusn, ‘Al-Khawarij: Nashʾatuhum, Musammahum,
Alqabuhum, Firaquhum’, Majala Jamiʿat al-Imam 48 (2010): 85–145; Usama Sulayman, ‘Al-K hawarij
bayn al-Madi wa-l-Hadir’, Al-Tawhid, 404: 57.
11 Al-Ghusn, ‘Al-Khawarij’, 103.
12 Abou El Fadl, Rebellion and Violence in Islamic Law, 171.
13 Ibid., 52. See also Al-Ghusn, ‘Al-Khawarij’, 109–15.
14 Al-Dawoody, The Islamic Law of War, 164. See also Abou El Fadl, Rebellion and Violence in Islamic
Law, 153; ʿAla al-Din al-Kasani, Badaʾiʿ al-Sanaʾiʿ fi Tartib al-Sharaʾiʿ, vol. 7, 2nd edn (Beirut: Dar
al-Kitab al-ʿArabi, 1982), 141; Muhammad al-Khatib al-Shirbini, Al-Iqnaʿ fi Hall al-Faz Abi Shu-
jaʿ, vol 2, ed. by Maktab al-Buhuth wa-l-Dirasat (Beirut: Dar al-Fikr, 1994), 549; ʿAbd al-Qadir
ʿAwda, Al-Tashriʿ al-Jinaʾi al-Islami: Muqarana bi-l-Qanun al-Wadʾi, vol. 2 (Beirut: Dar al-Kitab al-
ʿArabi, n.d.), 695.
15 Abou El Fadl, Rebellion and Violence in Islamic Law, 248.
16 Ibid., 152.
17 Ibid., 56.
18 Geneva Convention (III) Relative to the Treatment of Prisoners of War, of 12 August 1949, Article 4A(2).
19 John Kelsay, Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminster/John Knox,
1993), 93.

Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press,
2006).
Al-Dawoody, Ahmed. The Islamic Law of War: Justifications and Regulations. Palgrave Series in Islamic
Theology, Law, and History 2 (New York: Palgrave Macmillan, 2011).
Al-Dawoody, Ahmed. ‘International Terrorism and the Jurisdiction of Islamic Law’. International Crim-
inal Law Review 15(3) (Spring 2015): 565–86.
ʿAwdah, ʿAbd al-Qadir. Al-Tashriʿ al-Jinaʾi al-Islami: Muqarana bi-l-Qanun al-Wadʿi, vol. 2 (Beirut: Dar
al-Kitab al-ʿArabi, n.d.).
Buhuti, Mansur b. Yunus b. Idris al-. Sharh Muntaha al-Iradat al-Musamma Daqaʾiq Uli al-Nuha li-Sharh
al-Muntaha, vol. 3, 2nd edn (Beirut: ʿAlam al-Kutub, 1996).
Jackson, Sherman A. ‘Domestic Terrorism in the Islamic Legal Tradition’. The Muslim World 91(3–4)
(September 2001): 293–310.
Kasani, ʿAlaʾ al-Din al-, Badaʾiʿ al-Sanaʾiʿ fi Tartib al-Sharaʾiʿ, 2nd edn (Beirut: Dar al-Kitab al-ʿArabi,
1982).
Kelsay, John. Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminster/John Knox,
1993).
Qurtubi, Muhammad b. Ahmad al-Ansari al-. Al-Jamiʿ li-Ahkam al-Qurʾan, vol. 6 (Cairo: Dar
al-Shaʿb, n.d.).
Rahaybani, Mustafa al-Suyuti al-. Matalib Uli al-Nuha fi Sharh Ghaya al-Muntaha, vol. 6 (Damascus:
Al-Maktab al-Islami, 1961).
Sarakhsi, Muhammad b. Ahmad b. Abi Sahl al-. Kitab al-Mabsut, vol. 9 (Beirut: Dar al-Maʿrifa, n.d.).
Shaykh, ʿAbd al-ʿAziz b. ʿAbdullah b. Muhammad al-. ‘Al-Irhab: Asbabuh wa-Wasaʾil al-ʿIlaj’. The
Islamic Fiqh Council Journal 17 (2004): 25–49.
Shirbini, Muhammad al-Khatib al-. Al-Iqnaʿ fi Hall al-Faz Abi Shujaʿ, ed. Maktab al-Buhuth wa-l-
Dirasat, vol. 2 (Beirut: Dar al-Fikr, 1994).
439
Index
abode of Islam see dār al-Islām ‘caliphate of man’ as ‘theo-democracy’ 411; as

Abu Hanifa see al-Nuʿman, Abu Hanifa constitutional government 418–19; continued
ʿāda see custom obligatoriness of 403; early caliphate era
agency derived from the Prophet 376–7 361–2; imperial caliphate era 362–4; jihad
al-Ahkam al-Sultaniyya (Mawardi) 366–7 and 309; legal conceptions of 202; in modern
ahl al-athar (School of the Texts) 52–9 Islamic constitutional theory 403–5, 409;
ahl al-raʾi (Rational School) 54–8, 60 Muslim unity within 305; Muwahhidun
Allah (God): divine sovereignty and temporal caliphate 152; re-establishment of 309; Sunni
sovereignty in relation 416; lut․f 375–6, 377; caliphate legal discourse 365–8; treatise on
rights of (see ․huqūq Allah); supreme Legislator 411; universal Caliphate 412
233; truth see ․haqq; kashf wāqiʿ canons of law see qawāʿid fiqhiyya
Anglo-Muhammadan Law 31, 294 Christianity: Byzantine legal system 279; Divine
apostates (execution of ), modernity and Command Theory 99; medieval Catholic
177, 178–9 view of God’s rights 74; see also natural law
appellate system 190–1, 193 classical Islamic legal system, colonial
Aquinas, Thomas 100 displacement of 30–2
argument see ikhtilāf codification: association with modernity 389;
armed conflict see jihad ‘codification of Islamic law’, notion of 393;
assisted reproduction, ethics of 119 concept of 389–92; Islamic law as result of
authority see ․hujjiyya; judicial authority; wilāya; 393; jurists’ law in pre-modern era 392; and
wilāyat al-faqı̄h legal transplant 389, 394–7; and localization
autopsy, ethics of 117 of Islamic law 395–7; and marginalization of
al-Awzaʿi, Abu ʿAmr ʿAbd al-Rahman 148–9 Islamic law 397; mukhtasars (legal treatises)
al-Baghdadi, Ibrahim ibn Khalid 152 393; Ottoman Majalla (Mecelle) 292, 393;
state-led 392
beginning of human life, ethics of 118 colonialism: Anglo-Muhammadan Law in
bioethics: assisted reproduction 119; autopsy India 294; displacement of classical Islamic
117; beginning and end of human life legal system 30 (see also transplanted law);
118; definition 112; emergence 112; five hybrid legal institutions 31; Nigerian ‘native
juristic views as to medical treatment 115; courts’ 163
interdisciplinary field of 112; Islamic and combat see jihad
Western conceptualisations 115–16; Islamic common law (British) 31, 294
juristic discourses 113–15; and Islamic law 113, ‘Common Morality Theory’ 100, 103–6
120; issues in Islamic bioethics 116–19; law community of Islam see umma
and 112; organ donation or transplantation Companions of the Prophet 56, 141, 172, 179,
117; pregnancy 118; religion and 112 210, 257, 288, 306, 358, 434
body covering, regulations on 343 comparative law approach to qawāʿid
borrowed law see legal transplant fiqhiyya 242–3
British common law see common law (British) compendia of laws see mukhtasars
Byzantine legal system 279 conflict of laws see ikhtilāf
conquered territories, policy towards 361
caliphate: abolition of 293, 305, 402; application constitutional law: agency and accountability
of Islamic law 301; Baghdadi caliphate 360; of public officials 422–4; caliphate as
441
Index
constitutional government 418–19; 106–9; fiqh and 101–3; kalām and 101–3; usūl
constitutionalism, definition of 400; and 101–3
democracy and Islam in relation 415; divine ‘Divine Purposes Theory’ 106–9
sovereignty and temporal sovereignty in Divinity see Allah
relation 416; failure of democratic movements divorce see marriage, family and succession
in Arab world 415; governance among doctrine see kalām
equals in Sunni thought 418–19; historical donated human organs, ethics of 117
development of Islamic constitutional theory dower see marriage, family and succession
401–2; human-made legislation, scope and dress codes 343
authority of 405; Islamic democratic theory
410–12; and Islamic law 400; Islamic law and Egypt: ikhtilāf 189, 190–1; marriage to male
the state 419–22; ‘Islamic state’, definition apostate, repudiation of 191; Mixed Courts
as 406–9; Islamic theory of democratic 31; rescinding of contractual commitments
self-governance 415; Islamist theory 406–9; 189; sources of civil law 190; undelivered gifts
main features of Islamic constitutional theory of heritable property 191
403–5; objective of Islamic constitutional end of human life, ethics of 118
theory 375; separation of powers 400; Enlightenment, definition of 256
sovereignty and rule of law in relation 400; equality see gender equality
standard (Sunni) Islamic doctrine 409–10; equity see istih
․sān
Sunni political theory 416–18; Sunni theory ethics: Divine Command Theory: custom and
in modern Muslim-majority states 424–5; see 290; goodness and 263; and Islamic law 13;
also caliphate maqāsid al-Shariʿah as ethical values 229; see
contracts, ikhtilāf and rescinding contractual also bioethics
commitments 189 Europe see colonialism; Western law, thought
crime and punishment: and ․huqūq Allah 75; and scholarship
punishment for theft 133–8 expiation see kaffārāt
culture see legal culture
custom (ʿurf; ʿāda): ˓ada, meaning of 287; fallibilist (formalist) approach to ikhtilāf
authority (h․ujjiyya) of 293; changing habits 214, 215, 217
291; classification of 290; compatibility and family law see marriage, family and succession
continuity with Shariʿah 291; as contextual fatwas (legal opinions), issuing of 156, 382–3
evidence 292; custom canon (al-ʿāda feminism: equality and 335, 345–7, 351; Islamist
muh․akkima) 224, 227, 229, 292; ethics and feminists 335; marriage and 335; Muslim
290; fixed habits (ʿādāt) 291; general customs feminists 335; secular feminists 335
290; historical sources 287–90; human-made fiqh ( jurisprudence): Divine Command Theory;
customs 290; istih․sān and 232; law in relation ․haqq; natural law; qawāʿid fiqhiyya; wujūb:
286; legal applications of 291; linguistic five major axioms (al-qawāʿid al-fiqhiyya al-
(verbal) custom (ʿurf qawlı̄) 290; maʿrūf, kubrā) 47; human origin of 101; principles see
meaning of 287; modern period 293–5; in usūl al-fiqh; Shariʿah distinguished 101, 347;
other (non-Western) legal traditions 286; substantive rulings 228–9; universal canons
Ottoman Majalla (Mecelle) 292, 393; practical 227; wujūb and 90–4; see also bioethics
custom (ʿurf ‘amalı̄ or fiʿlı̄) 290; recognition fiqh al-aqalliyyāt (law of Muslim minorities):
of 293; role in legal rulings 291; Shariʿah and aims and goals of 316, 320; concept of 316;
286, 293–5; Shariʿah-based customs 290; as continued debate on 321; creation of 314,
source of law 286, 291; specific customs 290; 315; definition of 316; dominant opinions
textual sources 287–90; ʿurf, meaning of 287; as to 317; equality and 319; equity and 319;
Western law 286 fatwas, role of 316, 320; impact on Islamic
law 319; and Islamic perspective on world
dār al-Islām (abode of Islam) 301–11 minorities 319; justice and 319; justifications
․darūra (necessity) 224 for 317; legal premises of 318; moral aspect
democracy see constitutional law of 319; and Muslim Brothers 318; and non-
disagreement see ikhtilāf Muslims 319; sources for 315; term usage 316;
Divine Command Theory: and ‘Common and ‘traditional’ fiqh 318; use of Islamic legal
Morality Theory’ 100, 103–6; compatibility tradition 318; Western scholarship on 320;
with Islamic law 98; compatibility with and Western values 319
natural law 98, 99; divine origin of morality fiʿlı̄ see custom
98, 100; and ‘Divine Purposes Theory’ five axioms of jurisprudence 47
442
Index
five categories of Islamic legal canons 222 ․hakı̄m (ruler, presiding judge) 384–6
five daily prayers 115, 173 Hallaq, Wael 12, 52, 211, 217, 258, 259–62, 265,
five elements of human existence 196 308, 309, 310, 424
five fundamental values of Shariʿah (al-kulliyāt Hanafi legal school: Abu Hanifa al-Nuʿman,
al-khamsa) 22, 107 life and career 142–4; and ahl al-athar school
five juristic views as to medical treatment 115 54, 55; and ahl al-raʾi school 52, 55, 102; al-
five legal classes of actions 24, 57, 82, 84 Ahkam al-Sultaniyya 366; bioethics 114, 115;
five levels of knowledge 147 and British common law 294; codification
five pillars of Islam 22, 199 of laws 390, 392, 393, 395; continuance of
five principles of Hanbali legal doctrine 151 22; custom as source of law 26, 292, 293;
five principles of Maliki legal doctrine 145 dār al-Islām 305, 310; foundation of 142–4,
five rules of combat 436 364; ․huqūq Allah 71, 76; and Ibn Rushd 215;
five universal legal canons 227, 228, 229, istih․sān 52, 288; ‘jurisprudence for minorities’
233, 292 7; legal pluralism 20, 28, 75; marriage 325,
‘five universal objectives’ see maqāsid al-Shariʿah 327, 328, 331, 420; marriage dissolution 332,
force, use of see jihad 333; mas․lah․a 59; non-Muslim husbands 179;
number of daily prayers 173; ‘proprietor’-
gender equality: classical fiqh 342; dress codes oriented view of law 74; qadhf 72; qadis
343; feminism and 335, 345–7, 351; gender 161, 162, 363, 370; tah․sı̄n 57; terrorism 428,
equity/complementarity in neo-traditionalist 430, 431, 432; women qadis 161; see also al-
legal thought 343–5; gender in Islamic Nuʿman, Abu Hanifa
legal tradition 341; gender inequality in Hanbali legal school: and ahl al-raʾi school 52;
traditionalist legal thought 341–2; and Ahmad ibn Hanbal al-Shaybani, life and
ʿibādāt/muʿāmalāt distinction 347; import career 150–1; al-Ahkam al-Sultaniyya 366,
from West 340; Islamic/Western polemic 367; bioethics 114, 115; dār al-Islām 305; five
340; Islamism and 340; justice and equality principles of 151; foundation of 23, 150–1,
in relation 349–50; khunthā (‘third gender’) 364; legal pluralism 25; marriage 327, 328;
326; marriage and 335, 342; Musawah global marriage dissolution 331, 332, 333; mas․lah․a
movement 347–9; patriarchalism and 351; and 59; punishment of theft 134; purposes of
political Islam 340; progress of movement for law 198; same-sex relations 326; terrorism
350; progression of ideas on 350; reformist 428, 430, 431, 432; see also al-Shaybani,
legal thought 345; segregation of men and Ahmad ibn Hanbal
women 343; and Shariʿah/fiqh distinction 347; Hanifa see al-Nuʿman, Abu Hanifa
social construction of gender, equality and ․haqq (Divine truth): concept 67–8; divine
justice 340; and social justice 341; and ‘War interest in 69; divine origin 68; human
on Terror’ 340; women qadis 161 interest in 69; justice and 67; law and 69;
al-Ghannushi, Rashid, constitutional theory typology 69; see also ․huqūq al-ʿibād; ․huqūq Allah
410–12 health see bioethics
al-Ghazali, Abu Hamid Muhammad ibn hermeneutics see ijtihād
Muhammad 106 hijab (veil), regulations on 343
Ghaznavid dynasty (India), state and politics 371 ․hirāba see terrorism
God’s rights see ․huqūq Allah history: beginnings of Islamic law 1; colonial
goodness, ethics and 263 displacement of classical Islamic legal system
governance (h․ukm) see caliphate; state 30–2; early centres of Islamic law 1
government see caliphate; state homicide see qadhf
homosexuality 326
hadith: authenticity 128; authority 128; ․hujjiyya (authority): of custom 293; of hadith
certainty as to interpretation of 138; 128; of imams (wilāya); Prophetic 54, 165,
collecting of 128; complimentarity with 263, 358, 375, 378, 408; of Qurʾan 127; taqlı̄d
Qurʾan 129; hermeneutics (interpretation) and 259, 261–5; see also judicial authority
of 129–39; indpendence from Qurʾan 129; ․hukm (governance) see state
as interpretative tool for Qurʾan 134, 138; humanity: five elements of human existence
multiplicity of Sunnahs 133; revisionist 196; human welfare as purpose of law
Islamic view 129; as source of Islamic law 229; individual rights and ․huqūq al-ʿibād
127–39; Sunnah distinguished 128; tolerance distinguished 69; original state see natural law;
for different interpretations of 138; Western rights of believers see ․huqūq al-ʿibād; see also
view 129 bioethics
443
Index
․huqūq al-ibād (rights of believers): ‘absolute’ conformity of rullings with kashf wāqiʿ 377;
character 76; class of 69; definition 69; as H․ akı̄m 384–6; ʿlim (knowledge) 376; and
government action and 76; gradations 69; ijtihād 377; ʿisma (infallibility) 376; juristic
and ․huqūq Allah 29–30, 69, 71, 75, 77; ʿibādāt interpretations of rule of 379–82; jurist’s
and 70; ‘individual rights’ distinguished 69; expanded authority in absence of 382; and
murder and 72; scope 71 Muslim minorities in the West 314; and
․huqūq Allah (rights of God): ‘absolute’ character politics 377; Shi’i Imamate 375; wilāya
73, 76; class of 69; concept 74; crime and (authority) 377
punishment and 75; and ․huqūq al-ʿibād 29–30, India: Anglo-Muhammadan Law 31, 294;
69, 71, 75, 77; individual’s service to Allah 73; Ghaznavid dynasty 371; Mughal Empire
kaffārāt and 70; medieval Catholic theology 368, 369
contrasted 74; murder and 72; public order infallibility see ʿis․ma
and 69; societal dimension 74; and state inheritance see marriage, family and succession
power 72 interpretation see ijmāʿ; ikhtilāf; judicial
hybrid legal institutions 31 authority; jurisdiction and conflict of laws;
madhhabs; maqās․id al-Shariʿah; qawāʿid
ʿibādāt (ritual branch of law): and gender fiqhiyya; sources of Islamic law; Western law
equality 347; and ․huqūq Allah 70; muʿāmalāt Iran: ikhtilāf and prohibition of usury 190;
distinguished 347; wujūb and 86–90 Imamate 375; muftis 166; Safavid Empire,
Ibn Rushd 215–16 state and politics 368–9; type of Islamic law
ʿilm (knowledge): five levels of 376; of imams 12; wilāyat al-faqı̄h 382; see also imams; Shi’i
376; sources of religious knowledge 289 concept of the state
ijmāʿ ( juridical consensus): concept of 19; Iraq, post-occupation return of
conditions for 174; consensus canons 223–4; sovereignty 374–5
definition of 171; (ir)reversibility of 175–6; Islamic Awakening 315
legacy of 180; need for 171; operation of Islamic law: as academic discipline 2; approaches
174–5; and popular consensus 173–4; scope to 1–9; canons see canons of law; classical
of 171; Shiʿi scholarship and 176–7; as Sunni 30–2; definition 11, 32; existence of 11,
matter 176–7; in theoretical jurisprudence 13–14; history see history; modernity 177–80,
181; theories of 171; utility of 181 188; and natural law see natural law; nature
ijtihād (interpretation): academic perspectives of 14–17; pre-Islamic law see pre-Islamic law;
on 256, 258; and autonomous western reason profane domain 26–8; ‘proprietor’-oriented
255–6; defunctness of 261; imams and 377; view 74; purposes 14–17, 196–9; sacred
as independent reasoning 257, 264, 265; domain 26–8; schools see madhhabs; sources see
‘literalist’ hermenuetics 138; mujtahids 259, hadith; Qurʾan; type of law 11–12, 32–4; and
263; reason and 264; scope of 260; taqlı̄d 256, Western legal systems in Muslim countries 11;
258, 261, 263 see also Shariʿah
ikhtilāf ( juristic disagreements): abrogation of ʿis․ma (infallibility) 376
earlier arguments 188; causes of 210–12, Ismaʿili legal school 23
216–17; certainty, possibility of in modern Israelite prophetic governance 359
age 188; conflict of laws within same legal istih․sān (equitable juristic discretion): ʿāda and
school 186; equal and conflicting arguments, 232; qawāʿid fiqhiyya 56–8
problem of 183; fallibilist (formalist) approach
214, 215, 217; functions of 213–14; historical Jaʿfari legal school: foundation of 148; ijmāʿ 176,
sources 210, 217; Jafari (Shiʿi) legal school 177; ikhtilāf 187–8, 192; Jaʿfar al-Sadiq, life
187–8, 192; juristic disagreement and legal and career 23, 148; superior argument 187–8,
pluralism distinguished 209; legal pluralism 189, 192
208–18; medieval Sunni jurisprudence jihad (effort to fulfil God’s will) 301–11; and
183–6, 192; modern appellate system 190–1, application of Islamic law 301; armed conflict
193; modern Egyptian civil law 189, 190–1; as 301; caliphate and 309; collective jihad 301;
modern Islamic law 189–90, 192–3; pragmatic conquered territories, policy towards 361;
approach 214, 216, 217; prohibition of usury continued debate on 311; doctrine of 301;
190; and superior argument (theory of ) 188; five rules of combat 436; individual jihad 301;
tarjih (preponderance) approach 215; temporal Islamic understanding of 301; and jurisdiction
conflict of laws 188–9; validity of 212–13 of Islamic law 308–10; justification for 302–5,
imams: agency derived from the Prophet 310; modern context of 311; objective of
376–7; binding and mandatory rulings 377; 301; peaceful methods 301; in Qurʾan 301;
444
Index
regulations on use of force 311; rules of 310; five principles of 145; foundation of 22,
sovereignty and 308–10; territorial divisions 144–6, 364; ․huqūq Allah 75; ijmāʿ 172, 177,
of the world 305–7, 310; terrorist misuse of 179; ijtihād 258; istih․sān 288; legal pluralism
311; and UN Charter 311; violent methods 20, 215; Malik ibn Anas, life and career
301; see also terrorism 144–6; marriage 325, 327, 328, 420; marriage
jizya (poll tax on non-Muslims) 370–1 dissolution 331, 332, 333; mas․lah․a 59; nasab
judicial authority 156–68 330; natural law 57; Nigerian ‘native courts’
jurisdiction, jihad and 308–10 163; purposes of law 197, 198; sources of
jurisdictional disagreements see ikhtilāf Islamic law 26, 51; taqlı̄d 258; terrorism 428,
jurisprudence see fiqh 430, 431, 432
juristic disagreements see ikhtilāf maqāsid al-Shariʿah (purposes of Shariʿah): ability
justice: equality and 349–50; haqq and 67; and to discern 195; bioethics and 107, 113;
natural law 60–3; social construction of 340 definition of 199, 201–2; doctrine of 107; as
al-Juwayni, Abu al-Maʿali 17, 20, 103, ethical values 229; expanded scope of 201–2,
104, 172–3 203; five objectives 22; historical sources
197–9; legal discourse on 195; mas․lah․a 196–9,
kaffārāt (expiation), and ․huqūq Allah 70 203; modern period 199–203; narrow scope
kalām (doctrine), and Divine Command Theory of 203; principles of application 195; as public
101–3 policy 204; qawāʿid fiqhiyya distinguished 229;
kashf wāqiʿ (intented truth of Divine laws) 377 qawāʿid 197–9; ‘system-approach’ to 202–3;
khawarij see terrorism theological discourse on 195; varieties of
Khomeini, Sayyid Ruhollah Musavi Khomeini, interpretation 203–4
Ayatullah 382–6 marginalization of Islamic law by codification
khunthā (‘third gender’) 326 projects 397
knowledge see ʿilm marriage, family and succession: adoption of
al-Kufi, Sufyan ibn Saʿid al-Thawri 149–50 Western legal categories 324; divorce waiting
al-kulliyāt al-khamsa (five universal principles) period (ʿidda) 332; dower and maintenance
(22, 107 (mahr/nafaqa) 329–30; dower redemption
(khulʿ) 333; feminism and 335; fiqh 325; future
law making and natural law 58–60 of family law 335; gender 325–6; gender
al-Layth, Abu al-Harith 150 equality 335, 342; husband’s rights 335;
legal canons see qawāʿid fiqhiyya ikhtilāf 325; legitimate lineage (nasab) 330–1;
legal culture: colonialism and 30–2; pre-Islamic marriage (nikāh) 326–7; marriage as money
regional legal culture 276, 281 relation 335; marriage contract (ʿaqd) 327–8;
legal pluralism: in Islamic law see ikhtilāf; pre- marriage dissolution 331; marriage guardian
Islamic law 281 (walı̄ al-nikāh) 328; marriage impediments
legal transplant adoption (‘recycling’) of (mawāniʿ) 329; marriage repudiation
pre-Islamic law 275, 281; codification and (t․alāq) 331–2; marriage rights (h․uqūq) 329;
389, 394–7 marriage to male apostate, repudiation of
legal treatises see mukhtasars 191; modernity and inheritance 178, 180;
legitimate lineage see nasab modernity and mixed marriages 178, 179–80;
‘literalist’ hermenuetics 138 paternity canon (al-walad li-l-firāsh) 226, 230;
localization of Islamic law 395–7 patriarchal type of law 335; pre-Islamic legal
practices 324; Qurʾan 324; separation by court
madhabs (legal schools): beginnings of Islamic (khiyār fi al-nikāh) 333–4; sexual relations
legal discourse 141; codification of legal 325–6, 335; succession 334–5; traditional
opinions 141; origins and founders of 141–52; Islamic legal categorisation 324; undelivered
see also ahl al-athar; ahl al-raʾi gifts of heritable property, validity of 191;
Majalla (Ottoman) law of custom 292, 393 variety of regulations and rulings 325
al-Majd, Abu, constitutional theory 409–10 maʿrūf see custom
Malik ibn Anas 20, 22, 141, 142, 143, 144–6, mas․lah․a (well-being) 59, 196–9, 203
147, 148, 149, 150, 151, 210, 211, 264, 327, al-Mawardi, Abu al-Hasan ʿAli 366–7
328; see also Maliki legal school Mawdudi, Abu al-Aʿla, theory of Islamic State
Maliki legal school: and ahl al-raʾi school 406–9, 410–11
56; al-Ahkam al-Sultaniyya 366, 367, 368; medicine see bioethics
bioethics 114, 115; constitutionalism 419, modernity and Islamic law 177–80, 188
422, 423; custom 26, 293; dār al-Islām 305; modesty and body covering, regulations on 343
445
Index
Moosa, Ebrahim 13 ‘Near Eastern’ legal culture see pre-Islamic law

morality and natural law 99 Nigerian ‘native courts’ 163
muʿāmalāt (social relational branch of law): and nikāh․ (marriage) see marriage, family and
gender equality 347; ʿibādāt distinguished 347; succession
wujūb and 86–90 non-Muslims: conquered territories, Islamic
muftis ( jurists): historical development 158, policy towards 361; and fiqh al-aqalliyyāt 319;
164–8; historical sources 157; issuing of fatwas jizya 370–1
156; and Muslim minorities in the West al-Nuʿman, Abu Hanifa 20, 22, 23, 54, 55, 57,
314; role of 156–7; scholarly views on 158; 75, 141, 142–4, 145, 147, 148, 151, 211, 213,
see also qadis 306, 307, 308, 310, 328, 431; see also Hanafi
Mughal Empire (India), state and politics 368, 369 legal school
Muhammad, Prophet: agency from 376–7; Arab
ancestry 396; authority 54, 165, 263, 358, organ donation or transplantation, ethics of 117
375, 378, 408; Companions 56, 141, 172, original state of humanity see natural law
179, 210, 257, 288, 306, 358, 434; death 23, Ottoman Empire: codification 393; end of, and
54, 128, 172, 212, 305, 346, 359, 433, 436; abolition of caliphate 293, 305, 402; jizya
example 5, 303; family and successors 19, 146, 370–1; Majalla (Mecelle) law of custom 292,
166, 179, 208, 324, 327, 359, 375, 416; hadith 393; muftis 165; qadis 162; state and politics
see hadith; lifetime 18, 51, 198, 225, 288, 301, 368–71; type of Islamic law 12
358, 428, 429; messengership 127, 347, 358,
402, 407; miracles 289; rulings 51, 158, 280; Pakistan as ‘Islamic state’ 406–9
sacred and temporal roles 18, 48, 383, 416; paternity see marriage, family and succession
Sunnah see hadith patriarchalism 324, 325, 326, 335, 340–6, 351
mujtahids (scholars qualified in ijtihād) 259, 263 pluralism 20–6; see also ikhtilāf
mukhtasars (legal treatises) 393, 411 politics see constitutional law; natural law; state
murder see crime and punishment poll tax see jizya
Musawah global movement 347–9 power see state
Muslim Brothers 315, 318 pragmatic approach to ikhtilāf 214, 216, 217
Muslim minorities in the West: balancing of prayer see daily prayers
assimilation and adherence to Islam 314; pregnancy, ethics of 118
discrimination against 314; early jurisprudence pre-Islamic law: adoption (‘recycling’) by
as to 313; history of minority experience 313; Islamic law 275, 281; Byzantine legal system
imams, role of 314; and Islamic Awakening 279; geographical scope 275; jurisprudence
315; justification for non-integration 314; 281; law and state in ‘Near Eastern’ legal
maintenance of separate Muslim identity 314; culture 278; legal pluralism 281; limitations
modern changes in relationship with West of conventional historiography 276; orthodox
314; modern migration to West 313; muftis, Islamic scholarship 280–1; and regional
role of 314; and Muslim Brothers 315; Muslim legal culture 276, 281; Sasanian legal system
minorities worldwide 313; Muslims born in 278–9; temporal scope 275; transition from
the West 315; unity of Islamic law and culture pre-Islamic to Islamic state legal systems
314; and Wahhabi-oriented organizations 315; 279–80; tribal legal systems 278; variations in
see also of fiqh al-aqalliyyāt continuity with Islamic law 276
Muʿtazilite legal school 100–7, 109 pre-Islamic legal traditions 275–82
profane (domain of ) 26–8; see also muʿāmalāt
nasab (legitimate lineage) 330–1 ‘proprietor’-oriented view of law 74
‘native courts’ in Nigeria 163 public officials in Sunni constitutional
natural law: ‘Common Morality Theory’ theory 422–4
(CMT) and 100; creation and 47–51; Divine public order and ․huqūq Allah 69
Command Theory and 98, 99; first principles public policy, maqās․id al-Shariʿah as 204
43; formulation of law 45–6; function 43; punishment see crime and punishment
Islamic legal principles and 47–60; juristic
discretion and 56–8; law making and 58, qadaʾ (adjudication) 383–4
58–60; and medieval Christianity 100; qadhf (homicide) 72
modern interpretations 100; morality and qadis ( judges): historical development 158–64;
99; origins in ancient Greek philosophy 100; historical sources 157; role of 156–7; scholarly
political philosophy and 60–3; politics and views on 157–8; women as 161; see also muftis
60–3; society and 45–6; theory of being 43–4 al-Qarafi, Ahmad ibn Idris 172–3, 197–8
446
Index
al-Qarafi, Shihab al-Din 6, 51, 258–61, 368, as interpretative tool 134; hermeneutics
416, 419, 420–3 (interpretation) of 129–39; indpendence
qawāʿid fiqhiyya (legal canons): for allocation of from hadith 129; punishment for theft as
power between judicial and political authorities example of interpretation of 133–8; as source
225; burden of proof canon 234; categories of Islamic law 127–39; tolerance for different
227–8; categories of 222; causation and 226; interpretations of 138
certainty canon 229; comparative law approach
to 242–3; consensus canons 223–4; contractual al-Razi, Fakhr al-Din 25, 48, 172–3, 174, 197
obligations canon 224; contradictory evidence reason: analogical 224; autonomous 255;
canon 235; correlation between 226; court epistemic 265; practical 265, 377–8; revelation
procedure canons 234; custom canon 224, 227, and 51
229, 292; ․darūra 224; definition 221; delegation, religious violence 428–38
theology of 233, 235; divine legislative revelation and reason 51
supremacy, theory of 233; doubt canon 223, ritual, law of see ʿibādāt
224, 225, 226, 227, 234, 235; emergence
221, 222; equitable principles 224; equity sacred (domain of ) 26–8; see also ʿibādāt
(extratextual-source) canons 227; evaluation al-Sadiq, Jaʿfar 23, 141, 144, 148, 187; see also
canon 229; evidence canon 224, 226; Jaʿfari legal school
evidentiary canons 234–5; extratextual canons Safavid Empire (Iran), state and politics 368–9
228, 232, 233–4; extratextual sources 224; same-sex relations 326
five categories of 222; five universal canons Sasanian legal system 278–9
227, 229, 233, 292; functional classification Schacht, Joseph 256–8, 260–1, 262
228; general canons 229, 230; general standard scholarly interpretation see ijmāʿ; ikhtilāf; judicial
for determining law of social relations and authority; jurisdiction and conflict of laws;
transactions 225; governance canons 228, madhabs; maqās․id al-Shariʿah; qawāʿid fiqhiyya;
236–7; hadith as source 222–3; hardship sources of Islamic law; Western law
canon 229; impermissibility presumption segregation of men and women 343
233; interpretive canons 227, 228, 231–2; separation see marriage, family and succession
interpretive sources 223; interpretive-source sexual relations see marriage, family and succession
canons 227; in Islamic legal history 238–40; Shafi’i legal school: and ahl al-ra’i school 55;
in Islamic legal theory 240–1; judicial conduct al-Ahkam al-Sultaniyya 366, 367; bioethics
canons 236; from judicial practice, precedents 114, 115; codification of laws 364; conflict
and procedures 224–5; judicial procedure of laws 186, 191; constitutionalism 417,
canons 234, 236; from legal reasoning 224; 422, 423; custom 293; dār al-Islām 305;
literal meaning canon 232; and maqās․id al- foundation of 146–8; ijmāʿ 178; istih․ sān 57;
Shariʿah 197–9; maqās․id al-Shariʿah distinguished legal pluralism 20, 23, 25, 28, 216; marriage
229; no harm canon 224, 226, 229; non- 325, 326, 328; marriage dissolution 331,
superfluity canon 224; paternity canon 226, 332, 333; maslaha 59; Muhammad ibn
230; permissibility presumption 225, 233; plain Idris al-Shafiʿi, life and career 146–8; and
meaning canon 223; from practical principles, Muʿtazilite legal school 104; nature and
presumptions and governance norms 225–6; purpose of Islamic law 15; purposes of law
procedural canons 228, 234–5; procedural 196, 197; sources of religious knowledge
presumptions 233; Qurʾan as source 222; 289; spread of 102; taqlı̄d 263; terrorism
reasonable person standard 224; source-based 428, 430, 432, 433, 435
classification 228; source-preference canons al-Sistani, Ali, Grand Ayatullah 374–5
228, 232–3; sources 222–7; specific canons 229, al-Shafiʿi, Muhammad ibn Idris 16, 20, 23,
230–1; structural canons 228, 237–8; study of 53, 55, 57, 102, 103, 137, 141, 142, 143, 145,
221–2, 238–43; substantive canons 227, 228; 146–8, 149, 150, 152, 210, 212, 213, 214,
textual canons 228, 232; textual-source canons 263, 271, 304, 307, 308, 311, 433, 435; see also
227; from transplanted law 226–7; universal Shafi’i legal school
canons 227, 228, 229, 233, 292; universal Shariʿah (Way of Islam): definition 11; divine
canons and universal objectives (maqās․id al- origin of 101; fiqh distinguished 101, 347;
Shariʿah) distinguished 229; ua․ūl ʿamaliyya 224 five objectives 22; as normative 11; see also
Qurʾan: authenticity of 127; authority of Islamic law
127; certainty as to interpretation of 138; al-Shaybani, Ahmad ibn Hanbal 23, 145, 147,
complimentarity with hadith 129; definition 150–1, 152, 211, 213, 292, 305; see also
of 127; generalised rulings by 138; hadith Hanbali legal school
447
Index
Shiʿi concept of the state: agency derived Western conceptions 359; see also codification;
from the Prophet 376–7; and Coalitional constitutional law; natural law; Shi’i concept
Provisional Authority (CPA) administration of the state; sovereignty; terrorism
of Iraq 374–5; fatwa of Grand Ayatullah Ali succession see marriage, family and succession
al-Sistani 374–5; fatwas, issuing of 382–3; sultanate see state
H․ akı̄m, Imam’s role as 384–6; ijtihād 382–3; Sunnah see hadith
Imamate 375; imams and politics 378–9; Sunni view of Islamic law: abrogation of earlier
juristic interpretations of Imam’s rule 379–82; arguments 188; caliphate 365–8; ijmāʿ 176–7;
jurist’s expanded authority in absence of ikhtilāf 183, 192, 208; law schools see Hanafi
Imam 382; lut․f (divine grace) and 375–6, legal school; Hanbali legal school; Maliki
377; politics and practical reasoning 377–8; legal school; Shafi’i legal school; Qurʾan and
qad․aʾ (adjudication), political role of 383–4; hadith as primary legal sources 127, 129, 133;
wilāyat al-faqı̄h (comprehensive authority of reasoning from analogy 224
jurists) 382 superior argument see ikhtilāf
Shi’i view of Islamic law: ijmāʿ 176–7; ikhtilāf
187–8, 192; legal schools see Ismaili legal tah․sı̄n (declaring something pleasant) 57
school; Jaʿfari legal school; Zaydi legal taqlı̄d (conformity to teaching): academic
school; practical reasoning 224; procedural perspectives on 256, 258; authority and
presumptions 233; reasonable person standard 259, 261; and ‘closing of the door of ijtihād’
224; see also Shiʿi concept of the state 257; definition of 257; dominance of 259;
social dimension of law see custom; family epistemic authority 262–5; ijtihād in relation
law; gender equality; jihad; muʿāmalāt; 258, 261, 263; institutionalization of 260; and
Muslim minorities in the West; natural law; legal development and innovation 259, 261;
pre-Islamic legal traditions; succession mimetic authority 262–5; and mujtahids 259,
sources of Islamic law see hadith; Qurʾan 263; as negative influence in Islamic law 261,
sovereignty: divine 375; jihad and 308–10; post- 264; reason and 262, 265; as unquestioning
occupation return of Iraqi sovereignty 374–5 acceptance 257
state: al-Ahkam al-Sultaniyya (Mawardi) 366–7; temporal conflict of laws see ikhtilāf
caliphate as constitutional government territorial divisions of the world 305–7, 310
418–19; conquered territories, policy towards terrorism: Islamic definition of 429–32; jihad
361; early caliphate 361–2; early Islam 357; and 311; modern relevance of classical
early modern empires 368; Ghaznavid rule jurisprudence 437–8; punishment of 432;
in India 371; governance (h․ukm) 360–1; Qurʾan-sanctioned terrorism (h․irāba, khawarij)
historical development of political and legal 428; Qurʾanic accounts of 429; religious
institutions 361–71; historical sources 357; violence 433–7
and ․huqūq al-ibād 76; and ․huqūq Allah 72; theft see crime and punishment
imperial caliphate (Umayyads and early ‘third gender’ see khunthā
Abbasids) 362–4; Islamic law in relation transplanted human organs, ethics of 117
419–22; Islamic state/governance, notion of transplanted law see legal transplant
357; Israelite prophetic governance in relation treatises see mukhtasars
359; late medieval (post-Mongol) era 367–8; tribal legal systems (pre-Islamic) 278
military patronage rule (early medieval truth, Divine see kashf wāqiʿ
period) 364–5; Mughal Empire in India 368,
369; and natural law 60–3; in ‘Near Eastern’ ulū al-amr (persons with authority, rulers) 358
legal culture 278; object of Islamic theory of umma (community of Islam) 358, 359
375; Ottoman Empire 368–71; Ottoman poll UN Charter: jihad and 311
tax on non-Muslims ( jizya) 370–1; political UN Security Council resolutions on Iraq
concepts in Qurʾan and hadith 357; public 374, 375
officials in Sunni constitutional theory 422–4; ʿurf see custom
Safavid Empire (Iran) 368–9; Shi’i conception use of force see jihad
374–86; social continuity and political us․ūl al-fiqh (principles of jurisprudence) 227, 228
fragmentation 371; sultanates (early medieval us․ūl ʿamaliyya (procedural principles) 224
period) 364–5; Sunni caliphate discourse usury, ikhtilāf and prohibition of 190
365; Sunni conception 357–71; transition
from pre-Islamic to Islamic state legal systems veiling of women (hijab), regulations on 343
279–80; ulū al-amr 358; umma 358, 359; violence see jihad; religious violence; terrorism
448
Index
Wahhabi-oriented organizations: and Muslim wilāyat al-faqı̄h (comprehensive authority of

minorities in the West 315 jurists) 382
war see jihad women see feminism; gender equality; marriage,
well-being see mas․lah․a family and succession
Western law, thought and scholarship: worship, law of see ʿibādāt
autonomous reason 255; certainty, possibility wujūb (obligation): in classical jurisprudence
of in modern age 188; customary foundations 83–6; ‘command of the sovereign’ model of
of law 286; Enlightenment 256; epistemic explanation of 83; concept of legal obligation
reason 265; family law 324; and fiqh al- 82; ʿibādāt and 86–90; in Islamic legal thought
aqalliyyāt 319, 320; hadith in 129; individual 82; muʿāmalāt and 86–90; range of obligations
rights and ․huqūq al-ʿibād distinguished 69; in classical fiqh 90–4; understandings of 83
legal canons 226, 228; legal pluralism 209,
217; original state of humanity 60; origins of al-Zahiri, Dawud ibn Ali ibn Khalaf 23, 152;
Islamic law 276–7; personal status law 324; see also Zahiri legal school
practical reason 265; revelation and reason 51; Zahiri legal school: and ahl al-raʾi school 55;
state, conceptions of 359; succession law 324; Dawud al-Zahiri, life and career 152;
Western legal systems in Muslim countries foundation of 152; legal pluralism 212, 213,
11; see also bioethics; Christianity; gender 215; ‘literalist’ hermenuetics 138
equality; Muslim minorities in the West; Zarkashi, Muhammad ibn Bahadur 171, 175–6
natural law Zayd ibn ʿAli 23, 142
wilāya (authority of Imam) 377 Zaydi legal school 23, 141, 176
449

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Routledge Handbook of Islamic Law (2019)

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Routledge Handbook

Edited by Khaled Abou El Fadl,

ISBN: 978-1-138-80317-6 (hbk)

List of contributors viii

1 Shariʿah, natural law and the original state 43

2 ‘God cannot be harmed’: On H

3 Balancing this world and the next: Obligation in Islamic law

4 Divine command ethics in the Islamic legal tradition 98

5 Islamic law and bioethics 112

6 The Qurʾan and the Hadith as sources of Islamic law 127

7 The emergence of the major schools of Islamic law/madhhabs 141

9 Ijmāʿ, consensus 171

10 Superior argument 183

11 Maqā․sid al-Shariʿah 195

12 Legal pluralism in Sunni Islamic law: The causes and functions of

13 Interpreting Islamic law through legal canons 221

15 Legal traditions of the ‘Near East’: The pre-Islamic context 275

16 The place of custom in Islamic law: Past and present 286

18 Fiqh al-aqalliyyāt and Muslim minorities in the West 313

19 Family law and succession 324

20 Islamic law and the question of gender equality 340

21 Islamic law and the state in pre-modern Sunni thought 357

22 Concept of state in Shiʿi jurisprudence 374

23 Codification, legal borrowing and the localization of ‘Islamic law’ 389

24 Modern Islamic constitutional theory 400

25 Islam, constitutionalism and democratic self-government 415

26 Terrorism, religious violence and the Shariʿah 428

Ahmad Atif AHMAD is Professor of Religious Studies at the University of California in

Amirhassan BOOZARI is an Iranian independent scholar. He has an SJD (PhD in law) in

Omar FARAHAT is an Assistant Professor at McGill University’s Faculty of Law. His

Said Fares HASSAN currently teaches at al-Azhar University, Faculty of Languages and

Ziba MIR-HOSSEINI is a legal anthropologist, specializing in Islamic law, gender and

Felicitas OPWIS, Associate Professor of Arabic and Islamic Studies at Georgetown Univer-

Amr OSMAN (PhD Princeton University, 2010) is Associate Professor of Islamic History in

Irene SCHNEIDER is Professor of Arabic and Islamic Studies at Göttingen University

Ayman SHABANA is Associate Research Professor at Georgetown University’s School of

Transliteration Symbol Letter

For long vowels:

Approaches and state of the field

1) Jurisprudence and ethics

The Handbook’s chapters

of inheritance and family law. In addition, in response to domestic political pressure,

Whither Islamic Law?

Nature and purpose of Islamic law

The sources of Islamic law

Diversity and pluralism in Islamic law

It is as if God has said to human beings, ‘My command to My servants is in accordance

what cumulative generations of Muslims reasonably identified as fundamental to the Islamic

The sacred and profane in Islamic law

The rights of God and human beings

What happened to the classical Islamic legal system?

What is Islamic law?

The unexpected journey

The story of the island-marooned boy. Building a case

The island’s society

Does the boy have religion?

Why was the boy marooned on the island?

Why create an island?

The island in Muslim theological literature

The good and the bad in living on the island

What makes for law on the island?

The ahl al-athar and an effect on the character of law

Influence of the ahl al-athar on the late raʾi school

Was the later characterization of the ahl al-raʾi accurate?

1 The Qurʾan and the Sunnah/Hadith: definition,