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Fatemeh Hajihosseini
ARTICLE:THE SHARI'AH: SOURCES, INTERPRETATION, AND
RULE-MAKING
Spring / Summer, 2002
Reporter
1 UCLA J. Islamic & Near E.L. 135
Length: 19345 words
Author: M. Cherif Bassiouni*, Gamal M. Badr**
* Professor of Law, DePaul University College of Law; President, DePaul University College of Law International
Human Rights Law Institute; President, International Association of Penal Law; President, International Institute of
Higher Studies in Criminal Sciences.
** Former Judge of the Supreme Court of Algeria; Former Professor of Islamic Law, New York University; Former
Deputy Director, Codification Division of the United Nations.
LexisNexis Summary
… Like other world legal systems, Islamic law has its own distinctive processes of identifying and formulating legal
norms. … The role of jurists in formulating rules of law is peculiar to Islamic law, and it therefore differs from other
legal systems. … The sources of law, processes, and methodologies used by Islamic jurists in applying and
formulating rules of law are discussed in this article. … The process of formulating new rules of law acquired a new
vigor as the professional class of jurists increased in numbers and established a presence in the various centers
of the expanding Islamic empire. … When this stage of genesis of Islamic law ended, the Qur'an and the sunnah
were no longer available to provide new rules of law. … Islamic law, by contrast, is content with much less strict
conditions and may consider events personal to the obligor to be excusable, or may be satisfied with a supervening
hardship in performance rather than actual impossibility to perform. … In the renaissance stage, Islamic law
appears to be capable of formulating new rules of law to meet with situations that were unknown during previous
centuries. These newly formulated rules of law needed to be both truly Islamic and effectively modern. …
Text
[*135]
I. Introduction
Like other world legal systems, Islamic law has its own distinctive processes of identifying and formulating legal
norms. But unlike other legal systems, Islamic law developed in the evolving contexts of Muslim societies and their
political regimes (see Appendix).
Islam is holistic. Consequently, Islamic law (the Shari'ah) derives primarily from religious sources, namely the holy
book of Islam (the Qur'an) and the sayings and deeds of the Prophet Muhammad 1 (the sunnah). The great
majority of these norms, 2 however, fall into two categories, which are unknown to secular legal systems: those
1
It is the Muslim practice to follow the name of the Prophet with ″praise be upon him.″ To avoid repetition in this article, it is assumed
that every time the name of the Prophet is invoked, it is followed by ″praise be upon him.″
2
The term ″norm″ as used throughout this article means a rule providing a legal obligation irrespective of its standing in relationship
to other rules, and to the manner by which it is enforced, irrespective of the nature of the sanction that applies in case of the rule’s
violation.
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pertaining to faith and ritual norms, ibadat; and those that deal with societal relations and individual interactions in
society, mu'amalat.
The Qur'an and the sunnah contain the greater number of norms applicable to the areas of criminal law, family law,
and inheritance law as compared to other subjects within the mu'amalat category. These norms evolved over time
through the work of legal scholars using the methodology of usul al-fiqh (roots of legal knowledge). As discussed
below, fiqh and ilm usul al-fiqh are complex and sophisticated juristic techniques developed by jurists to interpret
and develop rules of law.
[*136] Pre-Islamic society, however, had tribal laws whose formation and application were the product of certain
legal reasoning techniques that were subsequently used by the Prophet and his Companions. Among the legacies
of pre-Islamic legal techniques of norm-making and norm-application are ijma (consensus), urf (custom), qiyas
(analogy), maslaha and istislah (consideration of the public good), istihsan (the best outcome in a given case), and
darura (necessity). Even though these techniques were pre-Islamic tribal sources of law and methods of legal
reasoning, they continued to be used as part of the Islamic usul al-fiqh, but with the modifications necessitated by
the dictates of Islam. This transition occurred in the days of the Prophet when the need for these legal techniques
was more strongly felt. Yet they continued to remain in use as part of Islamic law's techniques, though with some
periodic mutations when the Muslim world expanded and centers of legal studies and practice came into being in
the ever-expanding realm of Islam, or dar al-islam (see Appendix). As these techniques became diversified, they
at times led to contradictions and conflicts with respect to the same issues to which they were applied in the wider
parts of dar al-islam. Consequently, the need for consistency and predictability required the development of
commonly-agreed techniques of norm-identification and legal reasoning in norm-application. These techniques
were particularly needed when the ever-expanding world of Islam extended to non-Arabic-speaking societies
whose pre-Islamic legal cultures were quite different from those of the Arabic-speaking Muslims of the Arabian
Peninsula. This made the understanding and interpretation of the Qur'an and the sunnah more difficult for
non-Arab jurists. Thus, rules had to be developed for the proper understanding of the Qur'an and the sunnah,
whose authoritative language was Arabic, as were the foundations of usul al-fiqh. 3
The first jurist to write a treatise on the discipline of usul al-fiqh was al-Shafi'i (d. 204 A.H./819 C.E.), in his seminal
Al-Risalah. 4 He was thus referred to as "the father of Islamic jurisprudence," although what he really did was to
expand on and systematize principles and techniques of legal reasoning previously used by Arab-Muslim jurists in
application of the Shari'ah, and in the development of norms which were to be consonant with the Qur'an and the
sunnah.
The role of jurists in formulating rules of law is peculiar to Islamic law, and it therefore differs from other legal
systems. In other legal systems, the role of jurisprudence is limited to explicating and systematizing the rules of
[*137] law enacted by a secular authority. In Roman law, that authority was the Senate, which was the legislative
branch of government, while in the English common law, judicial decisions set precedents creating new rules of
law, but with the added factor of the English Parliament's supreme legal authority.
Islamic law may be characterized as a jurist's law, while Roman law is a legislator's law and the common law is
essentially a judge's law. Because Islamic law applies equally to the ruler and to the ruled, the existence of an
independent meritocracy of legal scholars not beholden to any political body was considered a guarantee of the
supremacy of the rule of law, which is distinguishable from a rule of law process that derives from secular
legislative authorities. But in time, that community of legal scholars became fragmented and beholden to political
authority. Later, that community of scholars also became politicized itself, as scholars saw in the techniques of
interpreting the Shari'ah an instrument of power and influence in Muslim societies.
Ilm usul al-fiqh is the legal science or legal technique that combines legal, philosophical, and epistemological
dimensions in a methodological framework. This framework is used to identify, interpret, and apply principles,
3
See infra note 10.
4
Muhammad ibn Idris al-Shafi'i, Islamic Jurisprudence: Shafi'i's Risalah (Majid Khadduri trans., 1961).
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norms, and standards, and in their absence, to identify by certain techniques an applicable norm to situations for
which existing norms are unavailable. It includes the identification, appraisal, and ranking of the sources of law in
accordance with a certain methodology deemed valid by the consensus of the community of legal scholars. The
complexity of the processes of analysis was compounded by a number of factors that pertain to existing gaps,
insufficiencies, ambiguities, and contradictions in and among the sources of law. Usul al-fiqh is, to a large extent,
a road map of what the law is, how it is to be applied, and where necessary, how law can be discovered. But it is
also a method by which all of the above can be justified, and in that respect, there is no external mechanism of
checks and balances on whatever has been agreed upon by the community of legal scholars. As a result, the
methods of usul al-fiqh became intrinsic in that the method of law-making was also the method by which to justify
the law as made. The absence of extrinsic control mechanisms lead to the authority of those making the legal
judgments, as discussed below in Part V, "Authority and Change."
Usul al-fiqh is a process of historical accretion that goes through stages of growth and consolidation until it reaches
stages of perceived completion where it becomes rigid, then regressive, in relation to the ever-progressing needs
of social change. Thus, the writings of scholars identify different historical periods and analyze the development of
Islamic law in that context. While this is a correct way of approaching legal history, it sometimes fails to grasp the
overall nature of this evolving and complex legal system.
[*138] The sources of law, processes, and methodologies used by Islamic jurists in applying and formulating rules
of law are discussed in this article. However, such an undertaking is necessarily fraught with the risk of
over-simplification of what is an enormous reservoir of legal and historical knowledge. The early dynamics that
permeated the legal culture of adhering to the precedence of authority also allowed for alterations, which occurred
in large part through the ijtihad (unprecedented doctrinal development) and the fatwa (advisory opinion).
Continuity and change coincide in taqlid (rigid following) and ijtihad. In time, both taqlid and ijtihad became part of
a continuum of preservation and change. The qadi (judge) was most likely to follow taqlid, or what today would be
called strict constructionism, while the jurisconsult (whose qualifications were always very demanding) was the
mujtahid. Yet ijtihad was not necessarily the development of new doctrine, as this was the province of the founders
of the madhahib (i.e., the four Sunni doctrinal schools, and the Shi'ah doctrinal schools). The processes of change
came early in the history of Islamic law by the making of new law on a case-by-case basis through ijtihad and
individual fatawa (plural of fatwa). The challenges of norm-making and norm-application are evident throughout
the history of Islamic law, evidencing the everlasting tension between law's continuity and change.
II. The Sources of Islamic Law
The Shari'ah, Islamic law, is based on two sources, the Qur'an 5 and the [*139] sunnah 6 (the sayings and deeds
of the Prophet Muhammad). The Qur'an is the principal source of the Shari'ah, which is supplemented by the
sunnah. While the Qur'an is the controlling source, both constitute the primary sources of Islamic law. 7
5
The Qur'an contains the "words of Allah" (God) inspired upon the Prophet and uttered by him in the presence of others who
memorized these utterances and wrote fragments of them at that time. There are many verses attesting to the divine origins of
the Qur'an, such as: 42:51 ("It is not fitting for a man that God Should speak to him Except by inspiration, Or from behind a veil,
Or by the sending Of a Messenger To reveal, with God's permission, What God will: for He Is Most High, Most Wise"); 26:192
("Verily this is a Revelation From the Lord of the Worlds"); 42:7 ("Thus have We sent By inspiration to thee An Arabic Qur'an
That thou mayest warn The Mother of Cities And all around her, - And warn (them) of The Day of Assembly, Of which there is
no doubt: (When) some will be In the Garden, and some In the Blazing Fire"); 16:102 ("Say, the Holy Spirit has brought The
revelation from thy Lord In Truth, in order to strengthen Those who believe, and as a Guide And Glad Tidings to Muslims");
17:106 ("(It is) a Qur'an Which We have divided (Into parts from time to time), In order that thou mightest Recite it to men At
intervals: We have Revealed it by stages"). The Qur'an was definitively transcribed some 20 years after the death of Prophet
Muhammad by the third caliph, Uthman ibn Affan. It was completed in 651 C.E. The work on that compilation commenced under
the first caliph, Abu Bakr. Four copies were made in 651 C.E. (some say seven), and the text was verified by the Prophet's
surviving companions, the sahaba. One copy was kept in Mecca, one was sent to Damascus, another to Iraq, and the fourth
to Yemen. These four master copies were called "Imam," and all subsequent books containing the Qur'an were based on them.
No one ever questioned the authenticity or accuracy of that original transcription. The Qur'an, meaning "readings," is arranged
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The prescriptions contained in these two primary sources of Islamic law, however, require interpretation. In fact,
many of the Prophet's sayings, or hadith (which are part of the sunnah), interpret some of the Qur'an's verses. After
the Prophet's death (11 A.H./632 C.E.), the need for the continuing process of interpretation of the Qur'an became
more acute. 8 This led to the development of supplemental sources of law to apply whenever the two primary
[*140] sources were silent on a given question or when they were, or appeared to be, ambiguous or inconsistent.
The four Sunni schools recognized and ranked the supplemental sources differently. 9 They also differed as to the
contents of these supplementary sources and their applicability in different circumstances and contexts. The
complexity of their methodologies, as well as the diversity of their ad hoc applications, denotes the intellectual
depth and breadth of Islamic legal science. Thus, legal methodology became the intellectual framework within
which the Shari'ah maintained some rigid continuity, while at the same time preserving elasticity for change.
Achieving a commonality of the four Sunni schools is impossible, if for no other reason than that the legal method
of each one differs from the others. The acceptance of one method leads to certain conclusions that are not
necessarily the same as those that may be reached by another method. It is, therefore, only on the level of
generalities that one can reach the same conclusion as that of a mainstream approach in ilm usul al-fiqh, which
recognizes the sources of norms that follow, though with respect to supplemental sources, they are ranked in the
different schools in that order. 10 It should be noted that usul al-fiqh developed in historical stages, and legal
historians have established that these sources were not all recognized in the earlier stages of the Prophet's time
in 114 sura, or chapters, of unequal length and numbered consecutively. Each sura differs in the number of aya, or verses,
which range from 3 to 286 verses. See also Ahmad b. al-Husayn Abu Bakr Bayhaqi, Ahkam al-Qur'an (Dar al-Kutub al-Ilmiyya
1975).
6
The complete record of the sunnah was compiled by Ishaq ibn Yassar 136 years after the Prophet's death in 11 A.H. (A.H.
refers to anno hijra). 1 A.H. corresponds to the year 622 C.E., which is the year of the Prophet's flight from Mecca to Medina.
The most reliable sources of the sunnah are Muhammad ibn Isma'il ibn Ibrahim ibn al-Mughira al-Ja'fi al-Bukhari, Sahih
al-Bukhari (Imam al-Nawawi ed., 1924), which contains 7,275 confirmed hadith, and Muslim ibn Hajjaj al-Qushayri, Sahih
Muslim (Abdul Hamid Siddiqui trans., n.d.). Bukhari and Muslim, who were contemporaries, died respectively in 256 A.H./869
C.E. and 261 A.H./874 C.E., and their works endured the passage of time. Bukhari notes that there is agreement concerning
the 7,275 hadith contained in his sahih, though, because of repetition and overlaps, there are actually only 2,762 separate
hadith. Al-Bukhari, supra. At that time, there were 200,000 alleged hadith in circulation. The Bukhari work was translated into
French in Les Traditions Islamiques (O. Houdas & W. Marcais trans., 1903-14). The debate over what hadith is sahih, meaning
true, is as extensive as the one over the interpretation of each hadith. The reconciliation of inconsistent and contradictory hadith
is another complex issue which is best addressed in Abd Allah ibn Muslim ibn Qutayba, Ta'wil Mukhtalafat al-Hadith (1936),
translated as Le Traite des Divergences du Hadith d' ibn Qutayba (G. Lecomte trans., 1962). For an analytical study on the
technique of sunnah interpretation, see Abu Ali Farisi, Jawahir al-Usul fi Ilm Hadith al-Rasul (1969). For a contemporary work,
which covers only 632 hadith, see Mulana Muhammad Ali, A Manual of Hadith (1983).
7
This is based on the Qur'an. See Qur'an at 4:59 ("Oh ye who believe! Obey God, and Obey the Apostle, and those charged
With authority among you. If ye differ in anything Among yourselves, refer it To God and His Apostle, If ye do believe in God and
the Last Day; That is best, and most suitable For final determination"). For early interpretation theories, see Yasin Dutton, The
Origins of Islamic Law (1999) and The Qur'an: Formative Interpretation (Andrew Rippin ed., 1999).
8
This was in part due not only to the fact that the number of alleged hadith proliferated and reached 200,000, supra note 6,
but also because several hadith were inconsistent, and some were inconsistent with the Qur'an. See ibn Qutayba, supra note
6. This required the development of a new technique to reconcile or explain away these divergences. See Ahmad Hassan, The
Early Development of Islamic Jurisprudence (1991).
9
Ala al-Din Abu Bakr ibn Mas'ud Kasani, Bada'i al-Sana'i fi Tartib al-Shara'i (1982).
10
There are many studies on fiqh and usul. For a historical description, see Wael B. Hallaq, A History of Islamic Legal
Theories (1997). See also Husayn H. Hassan, Al-Madkhal li Dirasat al-Fiqh al-Islami 146 (Cairo 1981). For an authoritative
historical description, see Muhammad Abu Zahra, Usul al-Fiqh (1958). See also Zakariya al-Birri, Usul al-Fiqh al-Islami (1980);
Abd al-Wahhab Khallaf, Ilm Usul al-Fiqh wa Khulasat Tariqh al-Tashri al-Islami (Dar al-Qalam 8th prtg., n.d. (circa 1958)).
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and that of the first four caliphs. Furthermore, their order differed in later periods than what is listed below, and their
authoritative ranking also differed in the various Sunni and Shi'ah schools: 11
Principal Sources
1. The Qur'an
2. The sunnah
Supplemental Sources
3. Ijma (consensus of opinion of the learned scholars)
4. Qiyas (analogy by reference to the Qur'an and the sunnah)
[*141] 5. Istislah or maslaha (consideration of the public good)
6. Istihsan (reasoning based on the best outcome, or equity)
7. Urf (custom and usage, subdivided between general and special)
8. The practices of the first four "Wise Caliphs" (a form of authoritative precedent)
9. Ijtihad 12 (unprecedented doctrinal development)
10. Treaties and pacts
11. Contracts (the Shari'ah considers a contract the binding law between the parties, so long as it does not violate
the Shari'ah)
12. The jurisprudence of judges
11
See Hallaq, supra note 10 and Dutton, supra note 7. For a study on how to reach usul, see Ahmad b. Ali ibn Barhan,
al-Wusul ila al-Usul (Abd al-Hamid Abu Zunad ed., 1984).
12
An early illustration of the ranking of the sources of the Shari'ah and recognition of ijtihad is in a dialogue (which is more
like an interview) between the Prophet and Mu'adh ibn Jabal, whom he appointed to be a judge in Yemen. The hadith is
essentially as follows:
The Prophet: "How wilt thou decide when a question arises?"
Mu'adh: "According to the Book of Allah [the Qur'an]."
The Prophet: "And if thou findest naught therein?"
Mu'adh: "According to the sunnah of the Messenger of Allah."
The Prophet: "And if thou findest naught therein?"
Mu'adh: "Then I shall apply my own reasoning [meaning ijtihad]."
The hadith indicates the Prophet's agreement with this approach. It should be noted, however, that not everyone is capable of
ijtihad. There are several conditions and qualifications concerning who may exercise that function. Ijtihad originated in Islam's
1st century as part of the doctrine of ra'y (opinion) and evolved through qiyas (reasoning by analogy). The doctrine of ra'y was
at first based on authoritative texts and thus came under the doctrinal approach of ilm. It was Shafi'i who established the
conceptual and doctrinal approach that was later followed by other scholars who expanded upon it. See Muhammad ibn Idris
al-Shafi'i, al Risalah. See also Muhammad ibn Idris al-Shafi'i, Kitab al-Umm, (7 vols., Cairo: al-Matba'a al-Amiriyya, 1325
A.H./1907 C.E.). The philosophical syllogism of qiyas and ijtihad was developed by the Hanbali jurist Taqi al-Din ibn Taymiyya.
See Wael B. Hallaq, A History of Islamic Legal Theories 139, 143-153 (1997).
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Since the Shari'ah is God-given law to humankind, 13 it has to be integral; consequently, doctrinal concepts, legal
approaches, techniques of interpretation, and judicial decisions must neither conflict nor contradict. Thus, their
differences needed to be reconciled, distinguished, or explained in a way that showed continuity, unless the
change was the product of a valid ijtihad exercised by the competent jurisconsult embodied in a fatwa. 14 This
complexity gave rise to fiqh 15 (the science of law) and to the development of [*142] the science of interpretation
of the Shari'ah, ilm usul al-fiqh 16 (the science of the principles of interpretation of the law).
Several schools of jurisprudence developed, known as madhahib (plural of madhhab). 17 The Sunni (now
comprising some 90% of the world's estimated 1.3 billion Muslims) have four schools, 18 each one of them since
their origin spawning one or more sub-schools. 19 The Shi'ah also developed several [*143] schools and
sub-schools. 20 There were also other jurisprudential schools that came out of certain religious or political
13
See supra note 5.
14
For a contemporary perspective, see for example Bernard G. Weiss, The Spirit of Islamic Law (1998).
15
Fiqh is the science or knowledge of the prescriptions of the Shari'ah which are derived from its specific sources. It includes
all prescriptive norms, judgments, and learned opinions.
16
Ilm usul al-fiqh developed in the 2nd century A.H., in part because Muslims from many different cultures, whose languages
were not Arabic, needed guidance of certain rules of interpretation to avoid the confusion that different linguistic and cultural
perspectives can bring to the interpretation of the Shari'ah. Thus, it is the science of the rules through which the prescriptions
of the Shari'ah are ascertained. It includes the ranking of the sources of law and of the sources of interpretation, rules of
linguistic interpretation, as well as other substantive rules of interpretation. For example, the Qur'an has precedence over all
other sources, followed by the sunnah; for the Qur'an, the latest-in-time verse controls, and the same goes for the hadith; the
specific verse or hadith controls over the general verse or hadith, etcetera. The first text on ilm usul al-fiqh was compiled by
Muhammad ibn Idris al-Shafi'i (d. 204 A.H/819 C.E.) in his authoritative text, Al-Risalah. Al-Shafi'i, supra note 4. See also supra
note 10.
17
See, e.g., Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (1991); Joseph Schacht, An Introduction to
Islamic Law (1964); N.J. Coulson, A History of Islamic Law (1965). After the fourth caliph, Ali, who was also the Prophet's
nephew, died, a political dispute arose as to whether the caliph (ruler) should be elected from among the Muslims, or chosen
from the descendants of the Prophet. Proponents of the latter established the Shi'ah movement.
18
The four schools are as follows: (1) Maliki, named after Abu Abd Allah Malik ibn Anas (d. 179 A.H./795 C.E.), (2) Hanafi,
named after Abu Hanifa al-Nu'man ibn Thabit al-Taymi (d. 150 A.H./767 C.E.), (3) Shafi'i, named after Muhammad ibn Idris
al-Shafi'i, and (4) Hanbali, for Ahmad ibn Hanbal al-Shaybani (d. 240 A.H./854 C.E.). For a contemporary perspective on these
schools, see Christopher Melchert, The Formation of the Sunni Schools of Law, 9th-10th centuries C.E. (1997); Norman Calder,
Studies in Early Islamic Jurisprudence (1993); Kamali, supra note 17; Schacht, supra note 17; Coulson, supra note 17. See
also, e.g., David A. Funk, Traditional Islamic Jurisprudence: Justifying Islamic Law and Government, 20 S. U. L. Rev. 213
(1993); Gamal Moursi Badr, Islamic Law: Its Relation to Other Legal Systems, 26 Am. J. Comp. L. 187 (1974). For a different
perspective, see George Makdisi, The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court,
1 Zeitschrift f<um u>r Geschichte der Arabisch-Islamischen Wissenschaffen 233 (1984). It should be noted that these four
schools, or madhahib, are not deemed contradictory to one another, but different in a way that is not inconsistent with the Qur'an
and the sunnah.
19
For example, the Hanafi school had two sub-schools, one founded by Abu Yusuf Ya'qub al-Ansari, and the other by
Muhammad al-Shaybani. Al-Shaybani was the first scholar to compile Muslim teachings on international law. See Majid
Khadduri, Siyyar al-Shaybani: The Law of War and Peace in Islam (1955). See also Abu al-Mu'ayyad Muwaffaq al-Din b. Ahmad
Makki, Manaqib al-Imam al-A'zam Abi Hanifa (Hyderabad, Matba'at Majlis Darat al-Ma'arif al-Nizamiyya, 1894). The Hanbali
school, which is the most orthodox of the four, spawned the Wahhabi school, named after its founder, Abd al-Wahhab, whose
views are even stricter than those of Ahmad ibn Hanbal. That school is presently followed mainly in Saudi Arabia.
20
Iran is the only Muslim state that is almost entirely Shi'ah and it follows the school known as the ithna ashariyya, or the
Twelvers. This school was created after the twelfth recognized Shi'ah Imam (ruler), who was occulted while in a cave, and who
is expected to reappear at some time to lead the righteous to the right path. See, e.g., Shi'ism: Doctrines, Thought and
Spirituality (Seyyed Hossein Nasr et al. eds., 1988). The Qur'an, however, specifies that only Jesus of Nazareth, who has been
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movements throughout the history of Islam, but whose authority was either short-lived or limited to certain sects.
21
The madhahib all agree on the primacy of the Qur'an and the sunnah, but they rank the secondary and tertiary
sources of law differently, and pursue separate analytical approaches and methods to the Shari'ah's interpretation.
22
Ilm usul al-fiqh recognizes this diversity within a holistic framework and seeks to give it cohesion within the
integrity of Islam. Yet it is this diversity which, in the course of fifteen centuries, has created such an overwhelming
body of jurisprudential thought that only the most learned jurists can grasp it. This phenomenon has in turn created
a gulf between those scholars and the vast majority of Muslims, particularly in non-Arabic-speaking Muslim
societies. Throughout these fifteen centuries, and across these cultural diversities, the need to revert back to the
relatively less complex period of the Prophet's life, followed by the first four caliphs, led to different doctrines of
"Islamic fundamentalism," some of which are evident in contemporary times.
One of the great doctrinal debates among all schools of jurisprudence, but more so between Sunni and Shi'ah, is
whether the Qur'an and the sunnah are to be interpreted literally, on the basis of the intent and purpose of the
[*144] text, or by combining both depending upon the subject. 23 Whether one approach or the other is followed
will determine if the unstated legislative policies of the many different aspects of the Shari'ah shall be deemed
relevant to the textual interpretation of the Qur'an and the sunnah. 24 It is probably in that respect that there exists
the greatest divergence of views between what is considered to be the three broad categories of thinking and
practice. The first is that of the so-called traditionalists, who represent the prevailing religious establishments in the
Sunni and Shi'ah worlds. 25 The influence of these two establishments is controlling, in part because of their
dominant role in education. Their teachings at Islamic universities, like al-Azhar in Egypt (which is the foremost
Sunni academy and the world's oldest university), and Najaf in Iraq and Qum in Iran (which are cities in which the
foremost Shi'i academies are located), as well as in the schools throughout most of the Muslim world, make their
views the most popularly diffused and accepted ones. Sunni traditionalists are essentially literalists. Nevertheless,
their approach includes the recognition that the Prophet and his first four successors, called the "wise" ones, can
be relied upon to interpret the letter of the Qur'an. In the second category are the so-called fundamentalists, who
are essentially dogmatic, intransigent, and literalist. They seek the solutions of earlier times as a panacea for
elevated alive to the side of God, is to return to earth before judgment day to lead the people of the world to the righteous path
of Islam.
21
Among these are the Mu'tazilah, the Khawarij, and the Sufis, whose movement spawned several branches in different
Muslim countries at different periods. See Cyril Glasse, The Concise Encyclopedia of Islam (1984).
22
For a classic authoritative Muslim approach using a historical analytical technique, see Abu Zayd Abd al-Rahman b.
Muhammad ibn Khaldun, al-Muqaddimah (Franz Rosenthal trans., 1958). For an analysis of Ibn Khaldun's philosophy of
history, see Muhsein Mahdi, ibn Khaldoun's Philosophy of History (1971). Another leading Muslim historian is al-Tabari. See Abi
Ja'far Muhammad ibn Jarir al-Tabari, Hadhama Tahtawi Alayhi Naskhat al-Maktabah al-Khidiwiyah min Kitab Ikhtilaf al-Fuqaha
(Fredrick Kern ed., 1902). For a short contemporary analysis, see Joseph Schacht, The Schools of Law and Later
Developments, in Law in the Middle East (Majid Khadduri & Herbert Liebesny eds., 1955).
23
This debate is characterized by the great debate between al-zahir, the obvious or literal meaning, and al-batin, the hidden
meaning or purpose. The Sunnis support the al-zahir approach, unless the purpose or hidden meaning is evidenced in some
aspect of the Qur'an or sunnah. The Shi'is resort to the al-batin meaning for interpretation of the literal text. For a contemporary
perspective, see Weiss, supra note 14.
24
That debate is characterized by whether the Shari'ah is dynamic or static. For a contemporary "traditionalist" reformist
approach, see Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (1986). See also Muhammad
Iqbal, The Reconstruction of Religious Thought in Islam (1951). For a "traditionalist" view, see Sayyid Abul Ala Mawdudi,
Toward Understanding Islam (A. Ghandi trans., 5th ed. 1954).
25
The Shi'is have an established hierarchical religious structure that gives its clergy even more authority over their followers
than the Sunnis. This is due to the fact that the Shi'i clergy originated in Southern Iraq and especially in Iran, where the historical
role of organized clergy in prior "religious" regimes was well-entrenched. Suffice it to recall the Zoroastrian tradition in
pre-Islamic Iran and its dominant hierarchical clergy. For an early history of Iranian society, see John Manuel Cook, The Persian
Empire (1983). See also Richard Frye, Islamic Iran and Central Asia (7th-12th Centuries) (1979).
Fatemeh Hajihosseini
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complex contemporary problems, some even turning to political activism and violence as ways of propagating their
views. 26 The third is a [*145] category consisting of a few secular reformists and a few forward-thinking
traditionalists, whom the mainstream traditionalists and fundamentalists refer to (in varying degrees of disapproval)
as the ilmani. 27 The ilmani seek to achieve the legislative goals of the Shari'ah by recognized jurisprudential
techniques, including ijtihad, in light of scientific knowledge. 28 The ilmani also search for the purposes and policies
of the Shari'ah in order to address contemporary problems.
[*146] Writings by Muslim scholars will usually reflect one or the other of the views represented by these three
categories. Consequently a reader, whether Muslim or not Muslim, who is unfamiliar with these categories as well
as with the complexities of the Shari'ah, will face difficulties in understanding all of these theories and their
applications. 29
As Islam spread to regions with cultures different from the Arabic one where it was first rooted, the jurisprudence
and doctrine of the Shari'ah that developed in these non-Arab societies differed. 30 But, since the Qur'an is
God-given and cannot be altered, these jurisprudential and doctrinal differences had to be reconciled, giving rise
26
This was not, however, always the case. In fact, the term "fundamentalist" has its origins in several reform movements that
sprang out at different times and places over the last seven centuries. What these movements have in common is their search
for a more ascetic, orthodox, and simpler way. The muwahhidun was a fundamentalist movement in Morocco in the 12th
century C.E., while a similar movement was developed by Ibn Taymiyya in Syria (1263-1328 C.E.), and Ibn Khaldun in Egypt
(1332-1408 C.E.). This gave rise to the al-salaf al-salih (the righteous forbearers) movement in Egypt at the turn of the 20th
century C.E. spurred by Shaykh Muhammad Abduh, who was a disciple of Jamal al-Din al-Afghani, a reformist of the
mid-1800s. These, however, were reform movements grounded in established "traditionalist" Sunni doctrine. Contemporary
movements, however, are a reaction to, or a consequence of corruption, bad government, and poverty in different Muslim
countries. As a result, they have also developed a political movement, and some groups believe in carrying out a jihad, or holy
war, by use of violent means. See, e.g., W. Montgomery Watt, Islamic Fundamentalism and Modernity (1988); John L. Esposito,
Islam and Politics (2nd. ed. 1987); Hassan Hanafi, The Origin of Modern Conservatism and Islamic Fundamentalism, in Islamic
Dilemmas: Reformers, Nationalists and Industrialization (Ernest Gellner ed., 1985); Martin S. Kramer, Political Islam (1980).
See also M. Cherif Bassiouni, A Search for Islamic Criminal Justice: An Emerging Trend in Muslim States, in The Islamic
Impulse 244 (Barbara Freyer Stowasser ed., 1987) (this book also contains several contributions on various aspects of Islamic
fundamentalism).
27
Ilmani means those who use ilm, or scientific knowledge. Those opposed to this approach argue that the use of scientific
knowledge to re-examine the assumptions, interpretations, and applications of the Shari'ah is either inappropriate, unacceptable,
or anathema, depending upon one's degree of intellectual constriction and religious fanaticism. But the ilmani approach has
been advocated by no lesser scholars than Ibn Taymiyya and Ibn Khaldun, supra note 22. For two contemporary scholarly
views, see Rahman, supra note 24, and Iqbal, supra note 24. The 20th century had such leading reformists from among the
ranks of "traditionalist" clergy, like Shaykh Muhammad Abduh of Egypt, and later in the 1940's, Sayyid Qutb of Egypt, who was
the intellectual light of the Muslim Brotherhood. See, e.g., Sayyid Qutb, Social Justice in Islam (John M. Hardie trans., 1953).
The present Rector of al-Azhar, Shaykh Hasan Tantawi, has become a mild reformist among the Sunni clergies. A few years
ago, as Egypt's mufti, he issued a statement that bank interests are not riba (usury). This was the first time that such a statement
was issued by a leading mufti since Ahmad Abduh's ruling in the 1930s that postal savings passbooks could bear a "fixed profit."
Since the seventies, a new concept called "Islamic Banking" has developed to get around the problem of usury and banking
interests. See M. Cherif Bassiouni & Gamal M. Badr, Interests and Banking in Islam 34 (1990). For a reformist view of Islamic
criminal justice and contemporary standards of human rights, see M. Cherif Bassiouni, Sources of Islamic Law and Protection
of Human Rights in the Islamic Criminal Justice System, in The Islamic Criminal Justice System 3 (M. Cherif Bassiouni ed.,
1982). It should be noted that ilmani must be distinguished from almani, which refers to agnostics.
28
See infra note 32.
29
For general works on Islam, see John L. Esposito, Islam: The Straight Path (1988); Gerhard Endress, An Introduction to
Islam (1988); Marshal G.S. Hodgson, The Venture of Islam: Conscience and History in a World Civilization (1973).
30
The problems that the Shari'ah had to address in the simple Bedouin desert society of the Arabian Peninsula offered few
precedents for more complex societies in the Indian sub-continent and other regions. For a contemporary perspective, see
Martin Gerber, Islamic Law and Culture (1999); Ira M. Lapidus, A History of Islamic Societies (1988). See also Laurence Rosen,
The Justice of Islam 154-186 (2000).
Fatemeh Hajihosseini
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to a great deal of sophistry and strained arguments. In time, all of this became very complicated and, as stated
above, it limited knowledge of fiqh and ilm usul al-fiqh to those who could devote many years to study it. 31 The
knowledgeable became the elite, the advisers to the rulers, and the teachers to the masses. This may explain why
the Sunni traditionalist clergy, in order to preserve their power, decided in the 5th century A.H. (12th century C.E.)
to foreclose resort to ijtihad or best reasoning as a source of law and as a method of interpretation. 32 Since [*147]
ijtihad is the basic source of progressive development, its closure stultified the past and condemned the future to
a rigid following of that past. 33 No Muslim country or religious or political leadership has so far dared to officially
re-open the door to ijtihad, even though the need to resort to it in light of so many scientific and technological
developments is obvious.
To understand the Shari'ah in all its complexities requires knowledge of its jurisprudential and scholarly
interpretations and applications, not only over time, but also throughout the many regions of the Muslim world that
are characterized by different cultures, customs, and mores that have influenced the way those in the Muslim world
interpret and apply the Shari'ah. Even though this understandable social phenomenon is obvious, it is negated on
the unchallengeable assumption that the Shari'ah is for all times and all places (see Appendix).
Since the Shari'ah has always been described by its scholars as being applicable in any place and at any time, and
thus presumably in the same way, it was necessary to explain differences. Hence, an axiom was developed,
namely: "the rules of law are subject to change from time to time and from place to place, but the Shari'ah never
changes." 34 To change the rules, it was necessary to rely on the following supplemental sources: consensus
(ijma), analogy (qiyas), public interest (maslaha), and custom (urf) (which with the expansion of the Muslim world
became localized, i.e., local as opposed to general custom; maslaha was also localized to those communities in
question). During the golden age of Islamic jurisprudence up to the 9th century C.E, and again since the 19th
century C.E., jurists made use of those supplemental sources to help the law keep pace with economic and social
changes. The only constraint on the use of supplemental sources and the outcomes deriving from their application
is that they cannot contravene a norm or outcome derived from one of the two primary sources, namely, the Qur'an
and the sunnah. The impact of this constraint, however, is limited because of the relatively small number of norms
found in the Qur'an and the authenticated sunnah as compared to the whole body of Islamic law.
A. The Primary Sources
1. The Qur'an
A major tenet of Islamic belief is that the Qur'an is the word of God revealed to His prophet and messenger,
Muhammad. It is the last divine [*148] scripture, because Muhammad's delivered message is the last divine
31
To become a graduate of the main Sunni Islamic university, al-Azhar, and receive the degree of Islamiya, equivalent to a
doctorate, a student must complete twelve years of studies after high school. The Shi'is, for reasons stated above, supra note
25, always had a hierarchical clergy from prior civilizations that kept a tight grip on their followers. This is true even today, and
Iran is the prime example. The fact that the Iranian people's language is Persian makes it even more difficult for ordinary
Muslims to know Arabic and consult the Qur'an in its original language. Thus, the Iranian clergy is often the necessary
intermediary between the faithful and the Shari'ah, as well as its interpreter, and this helps to partly explain their power. This is
also why the excesses committed by the Iranian revolution, particularly the legal and judicial abuses, all done with the approval
of the religious-political leadership of the Ayatullahs, went mostly unchallenged. One example is the seizure of American
diplomats in Tehran in 1979. See M. Cherif Bassiouni, The Protection of Diplomats in Islamic Law, 74 Am. J. Int'l L. 609 (1980).
There were also numerous other excesses in the revolution, such as summary executions, torture, and arbitrary detainment of
many people, all in complete violation of Islamic precepts of criminal justice. See M. Cherif Bassiouni, The Protection of Human
Rights in the Islamic Criminal Justice System, in The Islamic Criminal Justice System 1 (M. Cherif Bassiouni ed., 1989).
32
Muhammad T. Amini, Fundamentals of Ijtihad (1986); Rahman, supra note 24; Hanafi, supra note 26.
33
But see Wael B. Hallaq, Was the Gate of Ijtihad Closed? 16 Int'l J. Middle E. Stud. 3 (1984); Wael B. Hallaq, Authority,
Continuity and Change in Islamic Law 24-56 (2001).
34
Badran A. Badran, Usul al-Fiqh al-Islami 70 (Alexandria, n.d.)
Fatemeh Hajihosseini
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revelation to humankind. The Qur'an was revealed a few verses at a time over a period of 22 years, ending with
the death of the Prophet in 632 C.E., whose life is divided into two periods. The first was the Meccan period
(610-622 C.E.) when the Prophet was in the city of Mecca before the hijra, and the second was the Medina period
(622-632 C.E.), after the Prophet settled in that city, which is to the north of Mecca. The verses of the Qur'an are
therefore identified as "Meccan" or "Medinese."
The Muslims in Mecca were a small, scattered, and persecuted minority, and there was no Muslim community that
needed legal norms to regulate its affairs. 35 Thus, the verses revealed in Mecca contained principles of the faith
and rules of morality, with little or no specific socio-legal provisions. These were revealed mostly during the Medina
period, when Medina became a Muslim city-state with the Prophet acting both as religious leader and as a head
of state. 36
The text of the Qur'an was arranged into 114 chapters (sura) during the lifetime of the Prophet. Except for chapter
one, which is a short prayer, the other chapters are roughly arranged according to their length. The longest is
chapter two, and the shortest is chapter 108, which contains only three short verses.
What distinguishes the Qur'an from the scriptures of other religions is the fact that its full text was compiled and was
confirmed for authenticity by the Prophet before he departed this world. It was originally inscribed on different
writing material under the supervision of the Prophet himself. The text was also committed to memory by a large
number of the Prophet's Companions and followers. Soon after his death, his first successor, the Caliph Abu Bakr,
entrusted a full written copy of the Qur'an to Hafsa, the widow of the Prophet. 37 The third caliph, Uthman, had five
copies of that text made in book form and sent a copy to each center of the then expanding Islamic world. The
standard Qur'an that exists today is identical to the five copies, in book form, circulated by Uthman in the early
650's C.E., which was barely twenty years after the death of the Prophet. The authenticity of the text of the Qur'an
and its conformity to the revelation received by the Prophet are consequently beyond historical doubt.
Being a book of spiritual guidance and not a legal code, it is not surprising to find only 500 verses (many of which
overlap in theme and substance) [*149] with legal content among the 6,239 verses of the Qur'an. The breakdown
of those legal verses is as follows: 70 verses on family and inheritance law, 38 70 verses on obligations and
contract, 39 30 verses on criminal law, 40 and 20 verses on procedure. 41 As relatively few as they are, the legal
provisions derive directly from the Qur'an and are therefore the highest in the hierarchy of legal norms. They are
35
Hassan, supra note 10, at 22-26.
36
Id.
37
Manna al-Qattan, al-Tashri wa al-Fiqh fi al-Islam Tarikhan wa Manhajan 103-04 (1976).
38
The following are examples of verses of the Qur'an that deal with family and inheritance law:
[tdm4m,ql [tcg0,m'Surax (Chapter)',vu1,ql [tcg0,m2m,vu1,ql [tcg0,mp1,ql,vu1] Sura (Chapter)Aya (Verse) [sp'Aya (Verse)']
2180, 187, 221, 222, 223, 227, 288, 299, 230, 231, 232, 235, 236, 237, 241 43, 4, 11, 12, 15, 19, 20, 21, 22, 23, 24, 25, 33, 34,
35, 127, 128, 129, 176 5106 231, 4, 5, 55 243, 6, 7, 8, 9, 31, 32, 33 3337, 49, 53 582, 3 6010, 11 651, 2, 4, 6
39
The following are examples of verses of the Qur'an that deal with contract law and obligations:
[tdm4m,ql [tcg0,m'Surax (Chapter)',vu1,ql [tcg0,m2m,vu1,ql [tcg0,mp1,ql,vu1] Sura (Chapter)Aya (Verse) [sp'Aya (Verse)']
2188, 275, 276, 278, 282, 283 3130 429, 58, 161 51 827 1185 238 26183 3039
40
The following are examples of verses of the Qur'an that deal with criminal law:
[tdm4m,ql [tcg0,m'Surax (Chapter)',vu1,ql [tcg0,m2m,vu1,ql [tcg0,mp1,ql,vu1] Sura (Chapter)Aya (Verse) [sp'Aya (Verse)']
2178, 179 492, 93 532, 38 1733 242, 4
41
The following are examples of verses of the Qur'an that deal with procedure:
[tdm4m,ql [tcg0,m'Surax (Chapter)',vu1,ql [tcg0,m2m,vu1,ql [tcg0,mp1,ql,vu1] Sura (Chapter)Aya (Verse) [sp'Aya (Verse)']
2282 46, 15 346 652
Fatemeh Hajihosseini
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immutable and cannot be contradicted or modified by rules derived from any of the other sources of the Shari'ah.
It should be recalled, however, that the second caliph, Umar ibn al-Khattab, suspended [*150] the application of
the penalty for theft during what came to be known as the "year of the famine." 42 He considered someone who
stole to feed his family and himself as not subject to that penalty. This demonstrates that in the true spirit of the
Shari'ah, there is no strict rigidity in the application of legal norms.
Also, some verses with legal content are subject to interpretation because of the use of words that lend themselves
to more than one meaning. One example is the verse dictating the length of the period during which a divorced
woman cannot remarry. The word used can mean either "menstruation" or "menstrual period" between two
menstruations. The four Sunni schools of Islamic law may differ on the interpretation of such words and, therefore,
adopt slightly varying rules to determine the obligatory period for a divorced woman to wait before she can remarry.
43
2. The Sunnah
The Arabic word designating the second primary source of Islamic law, sunnah, means an established practice
that sets an example to be followed. In the context of the law, sunnah refers to the practice of the Prophet
expressed in actions, in oral pronouncements, or in concurrence in action by others. All three forms of sunnah are
considered sources of law that are to guide Muslims.
The sunnah derives its authority from the Qur'an itself, where several verses enjoin the believers to obey the
Almighty and His messenger. 44 The practice of the Prophet, especially his oral pronouncements, had been
committed to memory by many of his followers and by subsequent narrators in [*151] latter generations. Unlike the
Qur'an, it was not recorded in written form during the lifetime of the Prophet. Indeed, the Prophet is reported to
have discouraged his followers from writing down his sayings, lest they be confused with the text of the Qur'an.
Thus, the Prophet emphasized the supremacy of the Qur'an over all else.
From this, a whole discipline of Islamic knowledge came into being centering on the analysis of the orally reported
sayings of the Prophet (hadith). This discipline flourished during the 3rd century A.H. (9th century C.E.). Several
compilations of hadith were produced, of which the two most authoritative and most widely used are those written
by Muhammad ibn Isma'il ibn Ibrahim ibn al-Mughira al-Ja'fi, commonly known as al-Bukhari (d. 256 A.H./869
C.E.), and by Muslim ibn al-Hajjaj ibn Muslim al-Qushayri, commonly referred to by his first name, Muslim (d. 261
A.H./874 C.E.). 45
Scholars of hadith focus their attention on two elements of every reported saying of the Prophet:
1) The content of the saying, which must be logical and not self-contradictory, and must also not disagree with any
provision in the Qur'an or in the established, authenticated hadith, and
42
Muhammed Azad, The Message of the Qur'an 149-150 (1984).
43
Abd al-Munim al-Nimr, al-Ijtihad 25 (1986).
44
See Qur'an at 3:32 ("Say: 'Obey God and His Apostle': But if they turn back, God loveth not those who reject Faith"); 3:132
("And obey God And the Apostle; That ye may obtain mercy"); 4:50 ("Behold! How they invent A lie against God! But that by itself
Is a manifest sin!"); 24:54 ("Say: 'Obey God, and obey The Apostle: but if ye turn Away, he is only responsible For the duty
placed on him And ye for that placed On you. If ye obey him, Ye shall be on right guidance. The Apostle's duty is only To preach
the clear [Message]'"); 4:59 ("O ye who believe! Obey God, and obey the Apostle, and those charged with authority among you.
If ye differ in anything Among yourselves, refer it To God, and His Apostle, If ye do believe in God And the Last Day: That is best,
and most suitable for final determination").
45
The title of Bukhari's work is al-Jami al-Sahih [The Authenticated Compilation]. Muslim chose for his compilation the title
al-Musnad al-Sahih [The Attributed (Authenticated) Compilation]. Both works are commonly referred to as Bukhari's Sahih and
Muslim's Sahih.
Fatemeh Hajihosseini
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2) The chain of transmitters, from the time of the Prophet to the time when the hadith compilations were written.
Certain qualifications must be met by the narrators who constitute the links in the chain of transmission (isnad): 46
a. They should be known to be of a high ethical standing and therefore trustworthy, and
b. Narrators in any two successive links in the chain must have been contemporaries and must have lived at the
same place or otherwise proven to have met, for example, during the pilgrimage to Mecca.
The Shi'ah, however, require that the original narrator must be a member of the Prophet's family. In this way, they
distinguish themselves from the Sunni.
Sayings attributed to the Prophet that meet the above two criteria are then divided into two categories: 47
[*152] 1) Sayings that are reported at every link of the chain of transmission by such a large number of narrators
that it would not be possible to assume that they had conspired to tell a lie or to fabricate a pronouncement
purported to have been made by the Prophet. Hadith which fall in this category are considered authentic and
authoritative, and
2) Sayings that are reported at every link of the chain by a limited number of narrators, from the Prophet's
generation downward. This category of hadith is subjected to close scrutiny.
Only those sayings having a perfect chain of transmission or one giving no reason for doubt are held to be
authentic. Further, some of the different rulings on certain issues by the various schools of Islamic jurisprudence
can be traced to the fact that some jurists consider a certain oral pronouncement attributed to the Prophet to be
authentic and base their ruling on it, while other jurists disregard it because they consider the attribution to the
Prophet doubtful.
As stated above, no rules derived from the secondary sources may abrogate or contravene a rule contained in the
two primary sources, the Qur'an and the sunnah, though there is an internal hierarchy between the two primary
sources, as evidenced by the Prophet's refusal to have the sunnah recorded, as the Qur'an was, during his lifetime.
Thus, the sunnah cannot abrogate or amend a rule contained in the Qur'an. This issue was given close attention
by the early Islamic jurists, a minority of whom accepted the possibility of such an abrogation or amendment of a
Qur'anic provision by a saying of the Prophet, arguing that he was divinely inspired in what he said in matters of
religion and law. The majority, including Shafi'i, considered the abrogation or amendment of a provision in the
Qur'an by a pronouncement of the Prophet impossible. There are very few cases in which the sunnah provides for
a different rule from the one contained in the Qur'an. The best-known example of this is the prohibition in the
sunnah of a will and testament in favor of a legal heir (unless all the other heirs accept it), while the Qur'an puts no
restrictions on the right of a testator. A more enlightened approach is to distinguish these differences, and to
consider the sunnah as complementary to the Qur'an. Thus, in this view, the absence of any limitation in the Qur'an
on a testator's right is not contradicted by the Prophet's limitations, as the latter may be explained as an extension
of the former.
B. The Secondary Sources
Whenever the two primary sources do not cover a given situation, or are insufficient to regulate it, jurists had to
have recourse to secondary sources of [*153] the law. This is necessary because the Shari'ah applies at all times
and in all places, and because the need arises to have flexible rules of law.
1. Consensus (Ijma)
46
See supra note 6.
47
Id.
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The first supplemental source of rules of law is the convergence of opinion on a particular new rule. Authority for
this source is to be found in the Qur'an, where several verses condemn those who stray from the path of the
believers. 48 The Prophet is also reported to have said: "My community will never agree on an error." 49
But whose convergence of opinion constitutes consensus (ijma)? In the early times immediately following the
death of the Prophet, his followers, especially those recognized as more knowledgeable in such matters, were the
ones who contributed to the formation of consensus. In later times, up to our own, consensus is formed by the
qualified jurists recognized as capable of reaching independent personal opinion based on the sources. These
individuals are known in Arabic as mujtahidin, and the process they use is called ijtihad.
There are two variations of consensus, namely: 50
1) Active consensus, when all the jurists qualified to participate express the same opinion on a particular issue; and
2) Passive consensus, when some qualified jurists express an opinion and the others, being aware of it, do not
dissent.
Active consensus is considered a valid source of new rules of law by all four schools of jurisprudence of Sunni
Islam. Passive consensus has the approval of only two of the four schools.
It would illuminate the early workings of consensus to mention some examples of it in the early stages of Islamic
law. These examples deal with situations not mentioned in the Qur'an or dealt with in the Prophet's practice. Faced
with such situations, the early Muslims had to find out what the law said about them. Three examples illustrate this
situation. In the first example, [*154] the Qur'an provides that each of the parents receive one-sixth of the estate
of the deceased. 51 Nothing was said of the grandfather or the grandmother in case the parents of the deceased
had died before the deceased. Early Muslims reached a consensus that in the absence of the father or the mother
of the deceased, the grandparents receive their respective shares of one-sixth each. 52 The second example is the
Qur'an's explicit prohibition of eating "the flesh of swine." 53 The question arose as to whether the fat of the swine
was also prohibited. A consensus was reached by early Muslims that it was. 54 Finally, the Qur'an provides that all
booty obtained in fighting non-believers be divided among the fighters after one-fifth of it is remitted to the public
48
See Qur'an at 4:115 ("If anyone contends with The Apostle even after Guidance has been plainly conveyed to him, and
follows a path other than that Becoming to men of Faith, We shall leave him in the path he has chosen, and land him in Hell What an evil refuge!"); 4:153 ("Verily, this is My Way, Leading straight: follow it: Follow not (other) paths: They will scatter you
about From His (great) Path: Thus doth He command you, That ye may be righteous); 3:15, ("But if they strive To make thee
join in worship with Me things of which thou hast no knowledge, obey them not; Yet bear them company In this life with justice
(and consideration), and follow the way of those who turn to Me (in love): In the end the return of you all is to Me, and I will tell
you the truth (and meaning) of all that ye did").
49
Hassan, supra note 10, at 161.
50
Id. at 16; al-Birri, supra note 10, at 59.
51
Qur'an at 4:11 ("God thus directs you as regards your children's (Inheritance): to the male, a portion equal to that of two
females: if only daughters, two or more, their share is two-thirds of the inheritance; If only one, her share is a half. For parents,
a sixth share of the inheritance to each, if the deceased left children; If no children, and the parents are the (only) heirs, the
mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases is) after the
payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are
settled portions ordained by God; and God is All-knowing, All-wise").
52
Zakariya al-Birri, al-Wasit fi Ahkam al-Tarikat wa al-Mawarith (1970).
53
Qur'an at 2:173 ("He hath only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other
name hath been invoked besides that of God. But if one is forced by necessity, without willful disobedience, nor transgressing
due limits - then is he guiltless. For God is oft-forgiving most merciful"); 5:3 ("O ye who believe! Fulfill (all) obligations").
54
Yusuf al-Qaradawi, Al-Halal wa al-Haram fi al-Islam 47-48, 52 (1960).
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treasury. 55 When Muslim armies conquered territories in Syria and Mesopotamia, the fighters claimed farmland
and other real estate as booty. This claim gave rise to doubt in the community. The second caliph, Umar, convened
an assembly of elders in Medina to discuss the matter and reach a conclusion. After three days of debate, a
consensus was reached to the effect that real estate was not booty, thus limiting it to personal property. The
assembly decided by consensus that farmland and other real estate should remain in the possession of the original
owners, but that an annual tax should be collected from them. This addition to the resources of the public treasury
served the interests of the community better than making the relatively few Muslim fighters rich to the exclusion of
other Muslims and to the detriment of the original owners by endowing the fighters with real estate as booty.
Legislative bodies subsequently developed the notion of express consensus, [*155] which provided that the
legislative representatives must have fully benefited from the opinions of qualified jurists and stated that qualified
jurists neither dissent, nor prove inconsistent with the Shari'ah, the enactments of that legislative body.
2. Analogy (Qiyas)
Qiyas is the second supplementary source of rules of law. It is based on the use of reason to conclude that an
existing rule applies to a new situation because it is similar to the situation regulated by that rule, or to abstain from
applying the existing rule to the new situation that is proven dissimilar.
Authority for analogy is to be found in the Qur'an, where many verses call for logical thinking in matters relating to
the existence of God and to the creation of the universe. The sunnah also provides authority for the use of analogy
in formulating new rules of law. For example, when the people of Yemen embraced Islam, the Prophet appointed
one of his followers, Mu'adh, as judge. Before the new judge joined his post, the Prophet received assurance from
Mu'adh that in matters outside the scope of the Qur'an and the sunnah, sound reason would prevail. 56 The
Prophet approved this methodology and sent Mu'adh on to Yemen. The Prophet himself used logical explanations
for many of his oral pronouncements.
The second caliph, Umar, gave written instructions to a judge he appointed for the city of Kufa (now in southern
Iraq), named Abu Musa al-Ash'ari. In his message to the new judge, Umar set forth the rules that govern the office
and the method an occupant of that office should follow in reaching a decision. With regard to the use of analogy
(qiyas), Umar's message states: "Use your brain about matters that perplex you and to which neither Qur'an nor
sunnah seem to apply. Study similar cases and evaluate the situation through analogy with them." 57
The use of analogy for the formulation of new rules of law requires a determination of the raison d'etre behind the
existing rule. This is called illa (rationale) in Arabic. It is narrower and more specific than the rationale of the rule
of law, called hikma (judgment or wisdom). This rationale alone is not enough to extend an existing rule to a new
situation, and its absence is not sufficient to exclude the new situation from the sphere of the existing rule. This role
is left to the narrower and more specific illa, of which the presence justifies applying the existing rule to the new
situation, and of which the absence leads to the exclusion of the new situation from the scope of the existing rule.
In its technique, analogy is a logical syllogism, i.e., a [*156] method of reasoning by which a previously unknown
conclusion is derived from two known premises. A well-formed syllogism consists of two premises, one called
major and the other called minor. Each premise has one term in common with the other premise and one term in
common with the conclusion. In legal analogy, the major premise contains the illa of the known rule of law. This is
repeated in the minor premise describing the new situation for which a rule is sought. It is the presence of the illa
55
Qur'an at 8:41 ("And know that out of All the booty that ye May acquire (in war), A fifth share is assigned to God - and to
the Apostle, And to near relatives, Orphans, the needy, And the wayfarer - If ye do believe in God and in the revelation We sent
down to Our Servant On the Day of Testing, The Day of the meeting Of the two forces, For God hath power Over all things").
56
See supra note 12.
57
Hassan, supra note 10, at 172.
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in the minor premise that justifies the application of the existing rule to the new situation. Its absence in the minor
premise would lead to the exclusion of the new situation from the scope of the existing rule.
Two examples of the use of analogy illustrate the mechanism of extending an existing rule to an unregulated
situation, and in restricting the application of an existing rule to the situation it was originally meant to regulate. The
first is the prohibition of alcoholic drinks, clearly proscribed in the Qur'an. 58 When narcotic drugs came to be known
in the Islamic world, the question arose as to whether they too were prohibited. By use of the analogical method,
the jurists reached the conclusion that they were also prohibited, thus extending the application of the existing rule
to a new situation and formulating a new rule by analogy. 59 The argument they used was as follows: Alcohol is
prohibited because it is intoxicating (major premise); narcotic drugs are intoxicating (minor premise); narcotic
drugs are prohibited (conclusion).
The same method was, and still can be, used for reaching an opposite conclusion, namely excluding a novel
situation from the scope of an existing rule. Gold and silver coins could be exchanged only in the exact amount.
Any excess was considered prohibited riba (usury). 60 When coinage of the conquered lands and Islamic coinage
with lesser content of gold and silver came into circulation, the question arose as to whether the payment of a loan
in the same number of gold and silver pieces of different coinage was a full payment of the loan. The jurists reached
a determination that the raison d'etre of prohibiting riba was excess in real, and not merely numerical, value. Thus,
they required that the gold and silver coins exchanging hands should be weighed at the beginning and at the end
of the transaction. If the same number of coins paid by the debtor weighed less than the coins he received,
additional coins had to be paid to make up the original weight of [*157] the coins lent. Since this numerical excess
was not real excess in value, such a transaction did not involve riba. The analogical reasoning was as follows: riba
is prohibited because it involves an excess in real value (major premise); payment of a debt with a greater number
of gold or silver coins of the same weight as the original loan does not involve an excess in real value (minor
premise); therefore, such a transaction does not come under the rule prohibiting riba (conclusion). All Sunni
schools of jurisprudence use qiyas, in varying degrees, as a source of new rules of law. 61 Only Shi'i Muslim jurists
reject the use of analogy as a supplemental source of legal provisions. 62
3. Custom (Urf)
The law that applied in pre-Islamic Arabia consisted of customary rules derived from the practice of the members
of the community in marketplaces and other arenas of social, commercial, interpersonal, and intertribal interaction.
Islamic law did not reject out of hand such customary rules and adopted as its own those of them that were not
incompatible with the ethical values of the new faith. A prime example of customary rules repealed as being
antagonistic to the values of Islam were those permitting usury and resulting in doubling and redoubling of the
amount of the original obligation from year to year. 63 Yet other than those relatively few pre-Islamic customary
rules that were not carried over into the emerging Islamic legal system, Islamic law contains an element of
pre-existing customary rules and of other such rules created by custom in Islamic times through the ages.
What distinguishes urf (custom) from ijma (consensus) as a source of rules of law is that consensus is the domain
of qualified jurists alone, while custom is derived from the established practices of common people in their daily
58
See infra note 98.
59
Badran, supra note 34, at 143.
60
Gamal M. Badr, Islamic Law and the Challenge of Modern Times, in Law, Politics and Personalities in the Middle East:
Essays in Honor of Majid Khadduri 27 (Piscatori & Harris eds., 1987); Gamal M. Badr, Commercial Law, in 1 The Oxford
Encyclopedia of the Modern Islamic World 299-300 (John L. Esposito ed., 1995).
61
Al-Birri, supra note 10, at 89; Badran, supra note 34, at 148-52.
62
Al-Qattan, supra note 37, at 150.
63
Qur'an at 3:130 ("O ye who believe! Devour not Usury, Doubled and multiplied; But fear God; that Ye may (really) prosper").
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dealings with each other. Therefore, a rule arrived at by consensus applies everywhere, while customary rules can
be localized. Shafi'i, the founder of one of the four schools of jurisprudence in Sunni Islam, changed some of his
rulings when he moved from Baghdad to Cairo. 64 Scholars believe that he did so because of the different
customary practices of people in the two cities.
All schools of jurisprudence recognize custom as a supplementary source of rules of law. An axiom was coined to
express the place of custom among the sources of legal rules: "What is established by custom is like what [*158]
is stipulated (among contractual parties)." 65 Like all supplementary sources, custom cannot provide authority for
any rule that contravenes a mandatory rule provided by a primary source or by some other supplementary source.
Custom is there only to fill in gaps in the body of the law that no other source has dealt with in a mandatory way.
If there is a rule that is mandatory, then it cannot be changed by custom.
4. The Common Good (Maslaha)
When a new rule is needed to regulate a novel situation and cannot be derived from qiyas, ijma, or urf, resort to
maslaha is permissible. It is, in some respects, equivalent to the common law's equity, though it is much broader
because it extends beyond the parties to a given conflict. Consideration of the common or public good is based on
the fact that the law is intended to protect and promote the legitimate interests of the community and its individual
members. In any unprecedented situation calling for a new rule of law, identifying that public interest is the first step
towards formulating a new rule that protects and promotes that public good. Maslaha is therefore an expression
of public policy.
Islamic jurists came up with a list of five basic values that they called "the goals of the Shari'ah." These five values
relate to the individual's faith, his life, his intellect, his progeny, and his wealth. Any rule of law that protects and
promotes any of these five values is a valid rule of Islamic law, provided that it does not violate or contradict an
existing peremptory rule, i.e., one that derives from the Qur'an or the sunnah.
By adopting this concept of the public good, Islamic jurists were able to objectivize and circumscribe a vague ideal
otherwise likely to be conceived subjectively, which might have opened the door to personal preferences under the
cloak of an insufficiently defined "common good." The five values identified by the jurists as the basis for public
good and mentioned above relate mainly to the individual. It is presumed that in those five areas the interest of the
individual and the interest of the community coincide. In the rare occasions where those two interests are in
conflict, the public interest is given greater weight. Accordingly, when the public treasury needed more resources
than what was available from taxes provided for in the two principal sources of the Shari'ah, a new rule permitting
the imposition of new taxes was formulated, based on consideration of the public good, which takes precedence
over the individual's interest in preserving his wealth. 66 Likewise, a new rule was devised excluding from private
ownership any mineral resources [*159] discovered in privately owned land. 67 It was considered that the
community's interest in adding to the resources of the public treasury, and thus permitting better services to the
community, took precedence over one individual's interest in becoming exceedingly rich through exclusive
ownership of mineral resources found under his land.
While the other sources of rules of law are limited by their very nature in their potential to provide an unlimited
number of new rules, the public good is an open-ended source of new rules of law called for by changing social and
economic conditions over time. As will be explained in the remaining pages of this chapter, the evolution of Islamic
law in modern times, with all its unregulated novel situations, was based mainly on consideration of the public
good.
64
Al-Qattan, supra note 37, at 234.
65
Hassan, supra note 10, at 213-17.
66
Id. at 207, 211.
67
Muhammad Mustafa Shalabi, al-Madkhal fi al-Ta'rif bi al-Fiqh al-Islami wa Qawa'id al-Milkiyah wa al-Uqud Fih 603 (Beirut,
1985); Muhammad Abu Zahra, al-Milkiyah wa-Nazariyat al-Aqd fi al-Shari'ah al-Islamiyah 139 (1977).
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III. The Process of Rule-Making
Even before being formally expressed and deliberately applied, a process evolved since the early times for the
formulation of new rules of law. Such an emerging process was observable even during the lifetime of the Prophet.
Although his rulings are authoritative in themselves and need no further justification, on occasion he invoked
analogy or the public good as a basis for his rule-making. 68 The following examples help to illustrate this point.
The Qur'an prohibits a second marriage where the intended wife is the sister of the first wife. 69 The Prophet
extended this prohibition, by analogy, to the second marriage of a woman who is the niece of the first wife. The
common factor, he explained, was the need to avoid acrimonious relationships [*160] between blood relatives. As
another example, in a contract involving the sale of goods, the law requires that the object be existent. The Prophet
validated the sale of a future crop in the public interest. The rationalization was that by purchasing future crops,
traders would ensure sufficient stocks and the farmers would obtain funds to spend on their agricultural activities.
The Prophet also encouraged his companions to use reason in formulating new rules of law, as was seen when he
sent Mu'adh to be judge in Yemen. 70 The Prophet approved of the process suggested by the new judge and
thanked God for guiding him to the right methodology in rule-making. This process continued under the four "wise"
caliphs who headed the Islamic state successively after the death of the Prophet. One early example belongs to
the reign of the first caliph, Abu Bakr. The Qur'an allocated a share of all booty obtained by Muslim fighters in battle
against polytheists to nomadic tribes around Mecca and Medina who had not embraced Islam, but whose
neutrality was in the interest of the emerging Islamic state. Abu Bakr, in consultation with Umar, who was to
succeed him as caliph, decided that the rationale for allotting that share of the booty to those nomadic tribes no
longer existed, now that the authority of the Islamic state extended to the whole peninsula. 71 The new rule
terminating their share of the booty was reached through interpretation of the Qur'anic provision in the light of
changing circumstances.
Another example, mentioned in the above discussion of the public good as a source of rules of law, concerns the
farmlands in conquered territories. They were left in the hands of the conquered peoples against their payment of
a tax to the public treasury, rather than being distributed among the Muslim fighters as booty. A final example of the
early process of formulating new rules concerns criminal law. The Qur'an's penalty for murder is expressed in the
words "a soul for a soul." 72 This was taken to mean that only one culprit could be executed in punishment for a
murder he committed. [*161] When several individuals participate in murdering a victim, this would mean that
68
Badran, supra note 34, at 85-86.
69
Qur'an at 4:22 ("And marry not women Whom your fathers married - Except what is past: It was shameful and odious - An
abominable custom indeed"). See also Qur'an at 4:23 ("Prohibited to you (For marriage) are: Your mothers, daughters, sisters,
father's sisters, Your wives' mothers, Your step-daughters under your Guardianship, born of your wives To whom ye have gone
in - No prohibition if ye have not gone in; (Those who have been) Wives of your sons proceeding From your loins; And two
sisters in wedlock At one and the same time, Except for what is past; For God is Oft-forgiving, Most Merciful"); 4:24 ("Also
(prohibited are) Women already married, Except those Whom your right hands possess: Thus hath God ordained (Prohibitions)
against you: Except for these, all others Are lawful, provided Ye seek (them in marriage) with gifts from your property - Desiring
chastity, not lust, Seeing that ye derive Benefit from them, give them Their dowers (at least) As prescribed; but if, After a dower
is prescribed, ye agree Mutually (to vary it), There is no blame on you, And God is All-knowing All-wise").
70
See supra note 12.
71
Qur'an at 9:60. This verse refers to the said tribes as "those whose sympathy to the causes [of Islam] is to be encouraged."
Id. When the Islamic state became well-established and expanded, the sympathy of those tribes no longer needed to be paid
for. See Abd al-Hamid Mutwali, al-Islam wa Mabadi Nizam al-Hukm fi al-Marksiyah wa al-Dimugratiyat al-Gharbiyah 54 (1981).
72
Qur'an at 5:45 ("(They are fond of) listening To falsehood, of devouring Anything forbidden. If they do come to thee, Either
judge between them, or decline to interfere. If thou decline, they cannot Hurt thee in the least. If thou judge, judge in equity
between them. For God loveth those Who judge in equity"); 7:33 ("Say: The things that my Lord Hath indeed forbidden are:
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some of the wrongdoers would go free. When such an incident took place during Umar's reign, he decided, upon
consultation, that all the participants in a murder should receive the death penalty. 73 Otherwise, it was argued, a
murderer could avoid the penalty by having one or more co-murderers participate with him in the commission of
the crime. In other words, a single perpetrator would receive a higher penalty than if he were acting with others.
This would be contrary to the public good.
The process of formulating new rules of law acquired a new vigor as the professional class of jurists increased in
numbers and established a presence in the various centers of the expanding Islamic empire. The different groups
of jurists evolved into distinctive schools of legal thought (madhahib), each centered on a founding father whose
name the school carries. Four such madhahib came to be recognized in Sunni Islam. The Hanafi school, founded
by Abu Hanifa al-Nu'man ibn Thabit al-Taymi (80-150 A.H./699-767 C.E.), came into being in Baghdad. 74 Medina
saw the establishment of the Maliki school by Abu Abd Allah Malik ibn Anas (97-179 A.H./713-795 C.E.). The Shafi'i
school came into being in Baghdad, although its founder, Muhammad ibn Idris al-Shafi'i (150-204 A.H./767-819
C.E.), moved to Cairo. Baghdad also saw the establishment of the Hanbali school, founded by Ahmad ibn Hanbal
al-Shaybani (164-241 A.H./780-855 C.E.). 75
There was no uniformity of opinion about major legal issues within any one school of legal thought. On a particular
issue, a Hanafi jurist may depart from the majority opinion of his school and adopt a position identical to that of the
Maliki school, for example. Soon enough, all schools of legal thought began to produce manuals and treatises
expounding their opinions on all aspects of the legal system. As mentioned earlier, some of Shafi'i's rulings while
teaching in Cairo differed from his rulings while in Baghdad. This was in response to differing local customs and
socio-economic conditions.
Generally speaking, the Maliki and Hanbali schools emphasized textual sources of legal norms, preferring to base
their rulings on their understanding of Qur'anic verses and of traditions of the Prophet. The other two schools, the
Hanafi and the Shafi'i, made more extensive use of analogy and the public good. This remark, however, is correct
only in general terms. For example, one of the most influential works on the public good as a source of law [*162]
was written by a Hanbali jurist, Najm al-Din al-Tufi (657-716 A.H./1259-1316 C.E.). 76
The methodology followed by the Shi'i schools of legal thought differs from that of their Sunni counterparts on two
points: (1) the Shi'i jurists reject the use of analogy (qiyas) and do not consider it a source of new rules of law, 77
and (2) they accept only sunnah that is transmitted by members of the Prophet's family. This results in their
rejection of much of the body of Prophetic pronouncements and practice used by Sunni jurists. 78 Furthermore, the
Shi'ah believe in the infallibility of their historic Imams and, in the absence of the Hidden Imam, of his
representative who is the highest recognized cleric and jurist. Any ruling by any of these is accepted by the Shi'ah
as being indisputably the law. 79
IV. The Shari'ah's Evolution
Shameful deeds, whether open Or secret; sins and trespasses Against truth or reason; assigning Of partners to God, for which
He hath given no authority; And saying things about God Of which ye have no knowledge").
73
Shalabi, supra note 67, at 113.
74
Id. at 171.
75
Id. at 200.
76
Majid Khadduri, The Islamic Conception of Justice 181 (1984).
77
Al-Birri, supra note 10, at 95.
78
Al-Qattan, supra note 37, at 150.
79
Husain M. Jafri, Shi'i Islam, in 4 Oxford Encyclopedia, supra note 60, at 55; Shalabi, supra note 67, at 166-67.
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For a better understanding of the development of the Islamic legal system over time, the stages through which it
passed can be identified as follows: Early Development, Maturity, Rigidity, Renaissance, and Uncertainty. Most
writers, however, use historical periods to arrive at these stages. The difference is that of temporal as opposed to
qualitative categorization. Such categorization is the subject of many studies that are based on different methods
of historical legal analogies.
A. Early Development
This is the shortest of the stages of development of Islamic law and marks its historical beginnings. It lasted only
22 years, from the proclamation of the Prophet's message in 610 C.E. to his death in 632 C.E. During this period
the Qur'an was being revealed to Muhammad, and he himself made oral pronouncements and took actions that
laid down legal rules as needed. Thus the two primary sources of rules of Islamic law, the Qur'an and the sunnah,
were available for providing guidance in legal matters. It is interesting to note that on occasion the Qur'an overruled
statements by the Prophet on legal matters and substituted different rules. One example of this relates to family
law. In pre-Islamic times, a husband could use a particular formula to divorce his wife by verbally declaring: "You
are to me like my mother." This made it impossible for the husband to ever marry that divorced [*163] wife again.
A Muslim woman told the Prophet that her husband used the said formula in divorcing her and inquired about the
consequences. The Prophet answered: "He cannot remarry you again." Soon, however, two verses of the Qur'an
were revealed indicating that no such effect followed from the use of such a formula and that the result was a
regular divorce like any other. 80 When this stage of genesis of Islamic law ended, the Qur'an and the sunnah were
no longer available to provide new rules of law. Recourse had to be made to the secondary sources.
Early Muslims used consensus, analogy, and consideration of the common will to develop new rules of law, as the
above examples indicate. The number of legal scholars increased over time and it was to this group of specialists
that society turned to for new legal norms as the changing societal conditions so required. This stage lasted until
the early 2nd century A.H. (8th century C.E.) and led to the emergence of the recognized schools of legal thought
in the second half of the 2nd century.
B. Maturity
With the increased activities of the schools of legal thought and the recognition given to them by the public and the
jurists, the written output of the leading jurists gained wider circulation and greater acceptance. This represented
a flourishing of Islamic legal science and the development of new social rules and legal interpretation. Abridged
versions of the writings of earlier jurists came into being in the 7th century A.H. (13th century C.E.). These were
intended to provide an easily accessible source for whoever needed to know what the rules recognized by each
school were on a particular issue. The abridged works in question were known in Arabic as mukhtasar. 81 Whether
the maturity stage of Islamic law came to an end at the 7th century or earlier (or perhaps later) is a controversial
point among scholars of earlier times and of our own.
It is a fact, however, that with the consolidation of the four schools and the affiliation of all jurists with one or the
other, most jurists tended to accept unquestionably the majority rulings of their school on the issues with which they
dealt. The affiliation of a jurist with a particular school became an element [*164] of his identity and a hallmark of
his career. This gradually resulted in less and less recourse to ijtihad (independent reasoning) in formulating new
rules of law and more and more dependence on taqlid (acceptance of earlier rulings by jurists affiliated with the
same school). This is usually said to have resulted in a conclusion, reached by the majority of jurists, that all the
rules of law had been expounded and that there was no more need for exercising independent reasoning to
80
Qur'an at 33:4 ("God has not made For any man two hearts In his (one) body: nor has He made your wives whom Ye
divorce by zihar (calling them mothers"); 58:2 ("If any man among you divorce their wives by zihar, they cannot be their mothers:
None can be their mothers except those who gave them birth. And in fact they use words (both) iniquitous and false: but truly
God is one that blots out (sins), and forgives (again and again)").
81
See Mohammad Fadel, The Social Logic of Taqlid and the Rise of the Mukhtasar, 3 Islamic L. & Soc'y 193 (1996).
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formulate new rules of law. This is commonly referred to as "the closure of the door of ijtihad." When exactly this
took place and whether it was a universally held position are subjects of controversy among scholars.
C. Rigidity
As the teachings of the four schools of legal thought were consolidated, the output of juristic scholarship assumed
a non-original and commentative character. This was especially important because of the absence of a separate
law-making process. In the Sunni tradition, irrespective of the differences in the madhahib, formulation of the rules
of law is the responsibility of the jurists alone. But whether this actually resulted in an end to ijtihad and the resulting
consequences if it did happen are points on which there has never been agreement.
The generally accepted position among Muslim scholars has been that this happened towards the end of the 4th
century A.H. (10th century C.E.). But strong and authoritative opinions to the contrary existed among Muslim jurists
of the past. The prominent jurisprudent, al-Shatibi (d. 790 A.H./1388 C.E.), stated unequivocally that "ijtihad cannot
cease except at the end of the world when man's subjection to the Law will cease." 82 Jalal al-Din al-Suyuti (d. 911
A.H./1505 C.E.) devoted a monograph to the question. Its title clearly expresses the author's position: "Reply to
One who Prefers the Least Effort and Ignores the Fact that Ijtihad is Imperatively Necessary at All Times." 83
Muhammad ibn Ali al-Shawkani (d. 1255 A.H./1839 C.E.) 84 refuted the false proposition according to which
contemporary jurists could no longer acquire the high qualifications that allowed the jurists of the classical era to
exercise ijtihad. He explained that ijtihad had become infinitely easier than in the past because of the progress
made in the Qur'anic sciences and in the [*165] science of hadith, and because of the publication of the
compilations of juridical science. 85
Among modern Western scholars of Islamic law, there is the same disagreement as to the date when the process
of ijtihad slowed down or came to an end. N.J. Coulson was of the opinion that this occurred sometime around the
end of the 3rd century A.H. (9th century C.E.). 86 Joseph Schacht held, on the other hand, that the process did not
reach consummation until around the end of the 7th century A.H. (13th century C.E.). 87
More recently, Western specialists have been unable to trace the origin of the phrase "closure of the door of ijtihad"
to any one period in time or to any particular author. 88 Lutz Wiederhold notes:
It remains unclear who coined the phrase. Be that as it may, it seems certain that any Muslim jurist who mentioned
the closing of the door of ijtihad was not expressing the consensus of his contemporaries, since ijtihad never
ceased to be discussed as an element of Islamic jurisprudence and jurisdiction, as has been demonstrated by
[Rudolph] Peters and [Wael] Hallaq. 89
82
4 Ibrahim ibn Musa al-Shatibi, al-Muwafaqat fi Usul al-Shari'ah 89 (Cairo 1975).
83
Al-Suyuti, Kitab al-Radd ala man Akhlada ila al-Ard wa Jahila anna al-Ijtihad fi Kull Asr Fard (Dar al-Kutub al-Ilmiyya 1983).
84
Muhammad ibn Ali Shawkani, Kitab Irshad al-Fuhul ila Tahqiq al-Haqq min Ilm al-Usul (Muhammad Amin al-Khanji 1909).
85
Cited in al-Birri, supra note 10, at 320.
86
Coulson, supra note 17, at 7, 89.
87
Schacht, supra note 17, at 65-67.
88
Rudolph Peters, Ijtihad and Taqlid in 18th and 19th Century Islam, 20 Die Welt des Islam 1, 3-4 (1980); Wael B. Hallaq,
Was the Gate of Ijtihad Closed?, 16 Int'l J. Middle E. Stud. 3 (1984); Wael B. Hallaq, Ifta and Ijtihad in Sunni Legal Theory: A
Developmental Account, Islamic Legal Interpretation: Muftis and Their Fatwas 33 (Muhammad K. Masud et al. eds., 1996).
89
Lutz Wiederhold, Legal Doctrines in Conflict: The Relevance of Madhhab Boundaries to Legal Reasoning in the Light of
an Unpublished Treatise on Taqlid and Ijtihad, 3 Islamic L. & Soc'y 237 (1996).
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Sidestepping the question of when exactly independent reasoning gave way to unquestioning acceptance of the
rulings of one's school of legal thought, it remains a fact that for many centuries preceding the 19th century C.E.,
Islamic law experienced a period of rigidity and stagnation. This may have been a reflection of the lack of
development in Islamic society during that period of its history. It was certainly a result of the crystallization of the
teachings and rulings of the four schools as well as the universal affiliation of jurists with one or the other of them.
The changes brought to Muslim societies by intensified contacts with the West and expanded trade and interaction
with the rest of the world contributed to a renaissance of Islamic law that can be traced to the second half of the
19th century C.E.
[*166]
D. Renaissance
Around the middle of the 19th century C.E., the need was felt in Islamic countries to update Islamic law and to
codify it for easy access to the rules applicable to any given situation. The Ottoman empire, the largest Islamic
state at the time, took the initiative in codifying Islamic law according to the Hanafi school of law, which was the
official madhhab of the empire. That code, called the Majallah (in Turkish, Mecelle), contained sixteen books,
which were enacted successively from 1869 to 1876 C.E. The full title of this codification is Majallat al-Ahkam
al-Adliyyah (an Arabic phrase which translates as "Compendium of the Rules of Justice"). The decision to draft and
enact the Majallah put an end to a proposal to adopt the French Civil Code. 90 As a prominent Islamic scholar later
expressed it, the Majallah stands as lasting proof that a modern system of law can be built on the Shari'ah and that
Islamic law can be codified in modern form. 91
Around the same time, Egypt took a different course in modernizing its legal system. In 1875, it adopted a number
of codes modeled after French prototypes. This can be explained by the fact that the codes were intended for
application by the Mixed Courts, which had jurisdiction over cases involving European and U.S. citizens residing
in Egypt. The Mixed Courts were abolished in 1949.
The enactment of the Ottoman Majallah was the harbinger of a revival of academic interest in Islamic law. No
longer was teaching it confined to religious institutions, most importantly al-Azhar, but the new secular universities
taught courses on the Shari'ah and encouraged comparative studies involving it. Those studies proved that, family
and inheritance law aside, there was nothing un-Islamic in legislatively enacted codes of positive law. 92 The
majority of their provisions in areas like contract, liability, and ownership were compatible with corresponding rules
of Islamic law. The above-mentioned revival of academic interest in Islamic law was conducive to the adoption by
many current jurists of the position that ijtihad never ended, but was imperative in all times, including our own, for
formulating new rules. 93
90
C.V. Findley, Mecelle, in 3 The Oxford Encyclopedia supra note 60, at 84.
91
Rahman, supra note 24 (stating that "the efforts of some modern Muslim states to replace the Shari'ah with purely secular
law are mainly the result of intellectual defeatism"), cited in The Oxford Encyclopedia, supra note 60.
92
On the refutation of the position taken by a small minority of jurists that interest on capital and the contract of insurance are
incompatible with Islamic law, see Badr, supra note 60, at 27, 36-40.
93
The rejection of the purported closing of the door of ijtihad has become so common everywhere that it is difficult to cite all
the jurists who defend the continuity of ijtihad. Some examples are: Muhammad Rashid Rida (d. 1935), cited in Hamid Enayat,
Modern Islamic Political Thought 70 (1982) (Rida considered ijtihad "an imperative attribute of all legal thinking." Id.at 81);
Muhammad Mustafa al-Maraghi, Buhuth fi al-Tashri al-Islami wa Asanid Qanun al-Zawaj wa al-Talaq Raqam 25 Sanat 1929,
10-11 (Cairo 1927) (the author was the shaykh of al-Azhar in the 1930s, d. 1945), cited in al-Birri, supra note 10, at 326;
Muhammad Ali, The Religion of Islam, a Comprehensive Discussion of the Sources, Principles, and Practices of Islam 112-14
(The Arab Writers, Publishers and Printers, n.d.) (the author is a famous Muslim jurist of India, d. 1931); al-Birri, supra note 10,
at 326-30; Shalabi, supra note 67; al-Sadiq al-Mahdi, al-Mustaqbal, June 1, 1985, at 53 (this well-known Sudanese legal
scholar and former Prime Minister of Sudan wrote in this Arabic weekly, published in Paris, as well as in al-Arab, a Qatar daily,
published on June 8, 1985); Yusuf al-Qaradawi, al-Da'awa, Jan. 1985, at 8-11 and Feb. 1985, at 6-11; al-Habib Belkhoja,
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[*167] The promulgation of the new Egyptian Civil Code of 1948 and its adoption as a model by other Arab
countries was an important step towards re-establishing the Shari'ah in areas of the law where European-type
codes had replaced it in the second half of the 19th century C.E. The new Egyptian Code was not intended to be
a codification of Islamic law the way the Majallah was. Nevertheless, it has a definite Islamic law input recognizable
in many provisions of the Code. It also paved the way for further influence by the Shari'ah on positive law. Thus
Article 1, Paragraph 2 of the Code designates "the principles of Islamic law" as the first supplemental source of
rules that the judge is required to resort to where he finds no applicable statutory provision in the Code. This does
not only mean that gaps in the Code are to be filled by rules of Islamic law or by rules inspired by its principles. It
also means that interpretation of the provisions of the Code, when called for, is to be carried out with guidance from
the principles and rules of Islamic law. This tendency is reinforced by the fact that the judge and the interpreter are
cautioned against the use of foreign sources in understanding and interpreting the provisions of the Code, even
those that can be traced to foreign sources. 94 This method of interpretation is bound to create an even closer bond
between the Code and the Shari'ah.
One example of the closer identification of the existing codes with the Shari'ah that would stem from a better
knowledge of the latter is the rule of the undisclosed principal in the area of agency law. Under a number of codes
(e.g., Article 106 of the Egyptian Civil Code), the effects of a contract concluded by someone who does not declare
that he is an agent and identify [*168] his principal do not devolve on the "undisclosed principal," despite the
existence of agency. From this general rule, the codes provide for an exception "where it is immaterial for the third
party to deal with the agent or the [undisclosed] principal." 95 On the face of it, this last provision lends itself to a
subjective interpretation whereby it must be ascertained in each individual case whether it mattered or did not
matter to the third party to deal with one or the other. Looked at in the light of the Islamic regulation of agency, this
provision merits an interpretation which is objective and not subjective; this would indeed greatly extend the scope
of the rule of the undisclosed principal. In fact, Islamic law knows such a rule, which is as extensive as that of the
common law. 96 Under this interpretation, the direct effects of agency would be realized, despite the lack of
disclosure of its existence or of the principal's identity, in a whole category of objectively defined contracts. The
provision of the existing code would thus be brought closer to the rules of Islamic law.
Another example of a more perfect alignment between the codes and Islamic law through interpretation relates to
the effect of supervening unexpected events on contractual obligations. When such events represent an obstacle
to performance by one of the parties, they might excuse his non-performance. But the conditions required for such
an outcome differ according to the interpretation given the provisions of the codes. If understanding those
provisions were influenced, as it should not be, by the foreign sources of some of the wording or terminology used
in them, the result would be very stringent conditions for excusing non-performance, such as the extraneous
character of the event and the absolute impossibility of performance. Islamic law, by contrast, is content with much
less strict conditions and may consider events personal to the obligor to be excusable, or may be satisfied with a
supervening hardship in performance rather than actual impossibility to perform. 97 Deriving guidelines from the
Shari'ah in this area would further bring the existing codes closer to it.
The Egyptian Civil Code of 1948 and its progeny in other Arab countries are mainly the result of the efforts of Abd
al-Razzaq al-Sanhuri (1895-1971 C.E.), the most influential Arab jurist of the 20th century. Sanhuri was the
al-Ummah, Nov. 1985, at 66, 69 (this well-known Tunisian legal writer and mufti of the Tunisian Republic wrote in this monthly
review published in Qatar); al-Nimr, supra note 43 (al-Nimr is a former Minister of Awqaf in Egypt); Jadd al-Haqq Ali Jadd
al-Haqq, al-Ahram, Feb. 7, 1986 (the author was then the shaykh of al-Azhar and was also a former mufti of Egypt); Muhammad
Sayyid Tantawi, al-Ahram, April 16, 1996, at 12 (current shaykh of al-Azhar).
94
1 Preparatory Works of the Egyptian Civil Code 133.
95
Id.
96
Gamal M. Badr, al-Niyaba 309-332 (1980); Gamal M. Badr, La tendence objective en matiere de representation dans la
common law and en droit islamique, 17 La Revue Internationale de Droit Compare 379 (Jan.-March 1965).
97
N.J. Coulson, Commercial Law in the Gulf States: The Islamic Legal Tradition 83-87 (1984).
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pre-eminent advocate of remodeling the legal systems of Arab countries as a synthesis of Islamic legal concepts
and the best of what modern Western [*169] systems could provide. In this amalgam, priority is given to Islamic
law, as its role as a supplemental source of legal norms and guide to interpretation of provisions of Arab civil codes
clearly indicates.
In the renaissance stage, Islamic law appears to be capable of formulating new rules of law to meet with situations
that were unknown during previous centuries. These newly formulated rules of law needed to be both truly Islamic
and effectively modern. Only then can the maxim "the Shari'ah is suitable for all times" ring true.
E. The Age of Uncertainty
Muslim jurists agree that the Qur'an contains some 500 verses with legal content, many of them overlapping both
thematically and in substance. Several verses even repeat themselves almost verbatim. Some appear contradictory
while others follow a gradual evolution that goes from the descriptive to the proscriptive. The best example is in the
gradualist approach to the prohibition of using intoxicating beverages. 98
The Qur'an clearly sets itself as the word of God, and the believer must follow that command. God is the better
judge, 99 and the Prophet is the one that the Qur'an orders Muslims to obey and follow, as it orders Muslims to obey
and follow their leaders. 100 The sunnah in time became almost as important [*170] as the Qur'an, and thus those
who can identify and weave the sunnah into the interpretation of the Qur'an acquire the ultimate power of de facto
lawmaker. 101 The agents of that power are the mujtahidin and the muftis.
At first, the community of legal scholars sought to control access to these categories by imposing rigid conditions
of piety and knowledge. Then, the floodgates necessarily opened as more claimed that status, and fewer among
the masses of believers were able to exercise any direct influence on that process, mostly because of their lack of
knowledge, or more bluntly put, as a result of their ignorance.
Throughout the evolutionary process of Islamic law, the urge for a streamlined simplicity arose, and these various
movements came under labels that connoted a return to the righteous path. 102 As of the 20th century, these
98
Qur'an at 16:67 ("And from the fruit Of the date-palm and the vine, Ye get out wholesome drink And food: behold, in this
Also is a Sign For those who are wise"); 2:219 ("They ask ye Concerning wine and gambling. Say: In them is great sin, And
some profit, for men; But the sin is greater Than the profit. They ask thee how much They are to spend; Say: "What is beyond
Your needs. Thus doth God Make clear to you His Signs: in order that Ye may consider"); 4:43 ("Oh ye who believe! Approach
not prayers With a mind befogged, Until ye can understand All that ye say - Nor in a state Of ceremonial impurity (Except when
traveling on the road), Until after washing Your whole body. If ye are ill Or on a journey Or one of you cometh From offices of
nature, Or you have been in contact with women, And ye find no water, Then take for yourselves Clean sand or earth, And rub
therewith Your faces and hands For God doth blot out sins And forgive again and again"); 5:90-91 ("Oh ye who believe! Make
not unlawful The good things which God Hath made lawful for you, But commit no excess: For God loveth not Those given to
excess, Eat of the things which God hath provided for you, Lawful and good; but fear God, in Whom ye believe").
99
Qur'an at 5:49-50 ("And in their footsteps We sent Jesus the son Of Mary, confirming The Law that had come Before him:
We sent him The Gospel: therein Was guidance and light, And confirmation of the Law That had come before him: A guidance
and an admonition To those who fear God. Let the People of the Gospel Judge by what God hath revealed Therein. If any do
fail To judge by (the light of) What God hath revealed, They are (no better than) Those who rebel").
100
Qur'an at 4:80 ("He who obeys The Apostle, obeys God: But if any turn away, We have not sent thee To watch over Their
(evil deeds)"); 59:7 ("What God has bestowed On His Apostle (and taken Away) from them - for this Ye made no expedition With
either cavalry or camelry: But God gives power To His apostles over Any He pleases: and God Has power over all things");
30:21 ("And among His Signs Is this, that He created For you mates from among Yourselves, that ye may Dwell in tranquility
with them, And He has put love And mercy between your (hearts): Verily in that are Signs For those who reflect").
101
One of their techniques is to argue that God pre-ordained everything and that He pre-ordained that the Prophet
articulated everything that needs to be known - ergo nothing new is valid.
102
See supra note 24.
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movements became known as fundamentalist. Contemporaneously, there were reformist movements that took
less of a dogmatic approach and more of a utilitarian approach. 103 The few liberal movements of the 20th century
were drowned by the ever-increasing popular fundamentalist movements. 104
Political Islam, borne out of the masses' desperation with corrupt political regimes and a human and social
condition leaving no hope for improvement, embraced the slogan "Islam is the answer" (al-Islam huwa al-hal).
However, in the absence of democracy and the perpetuation of the status quo, political Islam turned to violent
action. After all, a hadith of the Prophet urges the believers to right wrongs "with their hands" if they can. 105 But it
was easier for the leaders to call on jihad as the doctrine justifying the use of violence to fight corruption and
oppression. 106
[*171] Yet the recurring theme of Islamic political fundamentalism is not only a return to the fundamentals of Islam
(which for the early fundamentalists was a much more complex undertaking), but in fact a regression to a fixed
historic framework. They argue that since the Qur'an is immutable, as is the sunnah, and since the sunnah is the
last word on the Qur'an, everything that had to be said by God and His messenger has been said. There being
nothing more to be said, the only thing left is a strict application of what has already been given. By that reasoning,
the leaders of these movements made themselves into the arbiters of what was valid and what was not. The
corollary of that self-declared authority is that the leaders can decide on who is a true believer and who is a heretic
(kafir). That is the ultimate weapon of Islamic political fundamentalism: the decision of whom they make into a kafir.
The exercise has been extensive, from the Ayatullah Khomeini's fatwa against Salman Rushdie for his book The
Satanic Verses, 107 to present-day Egyptian clerics declaring authors of books and articles as apostates and kafir.
108
Their influence and power, particularly that of the Wahhabi sect in Saudi Arabia, had ushered in an era of
uncertainty.
V. Authority and Change 109
Law is the embodiment of moral, ethical, and social values. The authority of law is derived both from its inherent
nature and from its enforcement, which is also norm-reinforcing. Authority in Islamic law derives from its divine
source and inspiration, and because ultimate accountability for its transgression is by and before the Creator.
Power is not that which gives Islamic law its authority, but rather its higher source is what gives it authority. This is
why, theoretically, in Islamic law what constitutes law is more important than the power to enforce it. When
103
See Hallaq, supra note 10, at 214-254.
104
Id. at 231-248.
105
Muslim, supra note 6, at Book 1, Chap. 21, No. 79 ("It is narrated on the authority of Tariq b. Shihab: I heard the Messenger
of Allah as saying: He who amongst you sees something abominable should modify it with the help of his hand; and if he has
not strength enough to do it, then he should do it with his tongue, and if he has not strength enough to do it, (even) then he
should (abhor it) from his heart, and that is the least of faith").
106
Qur'an at 2:91 ("When it is said to them, 'Believe in what God Hath sent down,' they say, 'We believe in what was sent
down To us.' Yet they reject All besides, even if it be Truth Confirming what is with them. Say: 'Why then have ye slain The
prophets of God in times Gone by, if ye did indeed Believe?'"). See also Rudolph Peters, Jihad in Classical and Modern Islam
(1996). For its international dimensions, see Hilmi M. Zawati, Is Jihad a Just War? (2001).
107
See M. Cherif Bassiouni et al., Speech, Religious Discrimination, and Blasphemy, in Proceedings of the American Society
of International Law 432-35 (1989).
108
For a description of militant political Islam, see Ahmed Rashid, Jihad: The Rise of Militant Islam in Central Asia (2002);
Rosemary Radford and Herman J. Ruether, The Wrath of Jonah: The Crisis of Religious Nationalism in the Israeli-Palestinian
Conflict (2002); Mary Anne Weave, A Portrait of Egypt: A Journey through the World of Militant Islam (2000). See also
Bassiouni, supra note 27, at 244-54 (reprinted in New Perspectives on Islam and Politics in the Middle East 249-54 (Barbara
Freyer Stowasser ed., 1987)).
109
Probably the most authoritative analysis of this question is Wael B. Hallaq, Authority, Continuity, and Change in Islamic
Law (2001).
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voluntary compliance fails, society enforces the law, and thus reinforces the law's authority. The interaction [*172]
between law and its enforcement shapes social values and conditions compliance. However, the theoretical gap
between law and enforcement allows greater influence by those who claim to understand the true meaning of the
law over those who have the temporal power to enforce it. Thus, religious leaders, particularly those with a political
agenda, use this gap to reinforce their positions.
The primary lawgiver is God and the best interpreter of God's will is the Prophet; thus the sunnah is second only
to the Qur'an. As discussed above, however, the Qur'an and the sunnah do not cover everything that man can
encounter, experience, or otherwise confront in life, thus the need for man-made law to fill the lacunae.
Furthermore, these two primary sources appear to be in some matters ambiguous and even inconsistent. There
is, therefore, the need to develop a judicial methodology, or more aptly stated in the French legal tradition, a
methode juridique, to interpret textual language, to apply it to different contexts, to reconcile inconsistencies, and
to fill lacunae when they might exist. The methodology thus becomes controlling and different methodologies are
not necessarily susceptible to being commingled, no matter how similar and without regard to whether the
outcome may be similar. The dominance of methodology is reflected in the dogmatic approach reflected in the
madhahib. Adherence to a madhhab requires acceptance of its method, including its own logic of choice in the
pursuit of legal analysis.
The four Sunni madhahib, like the Shi'ah madhahib, were started by jurisconsults. The madhahib methods each
had a man-made beginning whose claim was a best-effort adherence to the divine source of Islamic law. It was an
exercise in interpretation, application, and ijtihad. The methods that were introduced later acquired authority as a
result of their acceptance by the madhahib followers. In time, the madhhab, its method, and substantive content
became authoritative custom; and as with every custom, there is always a single human act that is its origin.
Eventually, the madhahib, though not of divine authority, acquired by consensus an almost undisputed legal
authority that gave the originator of the madhhab a moral authority that withstood time. But it was the personal
authority of the school's founder that compelled this outcome. Indeed, it was the scholarly, intellectually
compelling, and convincing logic and arguments of the school's author, along with his recognized piety, that gave
him such recognition and such following. Generations of adherents, who more or less rigidly followed that school's
teaching, and above all its methodology, brought to it an evermore imposing authority that in time became almost
unshakable.
This process may well be analogized to the one that evolved with the Prophet's early dissemination of God's
message. It was his piety and the [*173] compelling logic and convincing arguments that he advanced which gave
him the initial credibility that was needed before people accepted his word that he was God's chosen messenger.
The Prophet's known illiteracy contributed to proving the divine origin of the Qur'an. His personal authority brought
people to listen to the Revelations, and the credibility of his teachings, starting from the early days of Mecca and
then Medina, convinced the many who converted. The jurisconsults who founded the four Sunni madhahib and
those of Shi'ah madhahib emulated the Prophet, who is the role-model for all Muslims. In turn they became the
role-model of those who followed their school of thought and method.
The madhahib's methods were not, however, without substantive content. The schools were characterized as
much by the substantive content of the school founders' teachings as they were by the methods that they
developed. The method embodied the logic that permitted the reaching of the substance, but the method also had
to be based on substance and was thus characterized by value-content. Substantive content also served to
delineate the contours and boundaries of the madhhab's doctrine. Substance provided either internal boundaries
demarcating a given issue, or outer boundaries of the school's doctrine.
The followers of the schools contributed to their internal structure and substantive content through a process of
accretion by their jurisprudential thoughts and juridical and social applications. It is within the confines of the
school's substantive contours and in accordance with the school's methodology that both continuity and change
were achieved. Continuity was simply adherence and reiteration, which is called taqlid, while change occurred
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from within the madhhab through qiyas and ijtihad. 110 Taqlid provided consistency and predictability, while qiyas
and ijtihad provided for evolution and change. Taqlid was mostly the province of the qadi (judge) who was, and is
still, viewed as a strict constructionist (by analogy to subsequent positivist judicial doctrines). The mujtahid is a
jurisconsult whose qualities and scholarly qualifications permitted him to explore beyond the law as it was into
[*174] what can be viewed as a development going beyond qiyas to reaching newness. 111
The qadi had to possess certain qualifying requisites in order to reach taqlid, so it follows that the mujtahid had to
meet even higher standards of qualification. In this respect too the various schools' methods played a determining
role in establishing the qualifications of both the qadi and the mujtahid in a manner consistent with their overall
methodology and substantive content. The latter's qualifications were in most respects modeled on the
characteristics which authoritatively qualified the school's founder. Thus, the Prophet's model was perpetuated to
the lesser ranks of those entrusted with the authority of ijtihad. The qadi's application of the law was limited to the
case before him, unlike the mujtahid who, frequently through a fatwa, could exercise ijtihad in a specific case or
independently of any specific case or controversy to decide an issue or question heretofore unaddressed or
unresolved.
The first caliph to entrust someone else with exercise of the office of judge was Umar. He appointed Abu Darda to
be judge with him in Medina, Shurayh to be a judge in the city of Basra, and Abu Musa al-Ash'ari as judge in the
city of Kufa. On appointing Abu Musa, Umar wrote him the famous letter containing all the rules that govern the
office of judge. He says in it:
Now the office of judge is a definite religious duty and a generally followed practice.
Understand the depositions that are made before you, for it is useless to consider a plea that is not valid.
Consider all the people equal before you in your court and in your attention, so that the noble will not expect you
to be partial and the humble will not despair of justice from you.
The claimant must produce evidence; from the defendant, an oath may be exacted.
Compromise is permissible among Muslims, but not any agreement through which something forbidden would be
permitted, or something permitted forbidden.
If you gave judgment yesterday, and today upon reconsideration come to the correct opinion, you should not feel
prevented by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in
worthlessness.
Use your brain about matters that perplex you and to which neither Qur'an nor sunnah seem to apply. Study similar
cases and evaluate the situation through analogy with them.
If a person brings a claim, which he may or may not be able to prove, set a time limit for him. If he brings proof within
the time limit, you should [*175] allow his claim, otherwise you are permitted to give judgement against him. This
is the better way to forestall or clear up any possible doubt.
All Muslims are acceptable as witnesses against each other, except such as have received a punishment provided
for by the religious law, such as are proved to have given false witness, and such as are suspected (of partiality)
110
Ijtihad originated in Islam's 1st century as part of the doctrine of ra'y (opinion) and evolved through qiyas. The doctrine of
ra'y was at first based on authoritative texts and thus came under the doctrinal approach of ilm. It was Shafi'i who established
the conceptual and doctrinal approach that was later followed by other scholars who expanded upon it. See al-Shafi'i,
al-Risalah, supra note 4. See also al-Shafi'i, Kitab al-Umm, supra note 12. The philosophical syllogism of qiyas and ijtihad was
developed by the Hanbali jurist Taqi al-Din ibn Taymiyya. See Wael B. Hallaq, A History of Islamic Legal Theories, 139, 143-153
(1997).
111
Khatib al-Baghdadi, al-Faqih wa al-Mutafaqqih (Dar al-Kutub al-Ilmiyya 1975).
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on (the ground of) client status or relationship, for God, praised be He, forgives when sworn testimony is rendered
and postpones (punishment) in the face of the evidence.
Avoid fatigue and weariness and annoyance at the litigants.
For establishing justice in the courts of justice, God will grant you a rich reward and give you a good reputation.
Farewell. 112
From such beginnings a whole genre of legal literature came into being focusing on the judge's role and the
manner of his carrying out his judicial duties. The earliest surviving treatise of this kind is Adab al-Qadi by
al-Mawardi (d. 450 A.H./1058 C.E.). 113
Although it was the caliph who appointed judges, the judge was independent in his judicial activities. The ruler was
subject to the law just as the people were. Many historical anecdotes illustrate this independence of the judges and
the subjection of the ruler to the judge's authority in case of litigation. The second caliph, Umar, is reported to have
had a civil dispute with another Muslim, and they both appeared before the judge appointed by Umar. The judge
then said: "Why did you not call me instead of appearing in court?" Umar's reply was: "All litigants must appear
before the judge. He cannot be called upon to appear before anyone." 114
In the earlier stage of Islamic history, jurists who were appointed to the office of judge were capable of exercising
independent personal reasoning in pursuit of new rules of law for application to unprecedented situations. They
were able to exercise ijtihad. With the passage of time and the expansion of the territory where Islamic law applied,
it was sometimes no longer possible to find such jurists to fill all the vacant judgeships. It became permissible to
appoint as judges jurists who were fully knowledgeable of the rules constituting the current body of law. This
allowed them to decide cases to which one of the existing rules applied. Faced with a case requiring ijtihad, the
judge [*176] could seek the opinion of a mujtahid (also called a mufti), one with the qualifications to issue
authoritative legal opinions. 115
The fatwa has historically been concerned with a given issue, propounded as a question to which the mufti
provides an answer. 116 The authoritative nature of the fatwa derived from the higher qualifications of the person
making it. The fatwa, however, had to be specific. Importantly, a fatwa is not necessarily based on ijtihad. 117
Sometimes the boundaries between qiyas and ijtihad were defined by the manner in which the question was posed
or the issue framed. Depending upon the answer and the way in which it was framed, one could conclude that the
answer was either based on continuity or charted a new course. The mujtahid could transcend the need for a
continuity link and arrive at an outcome that was unconnected to the past. Such a process necessarily led in time
to restrictions on ijtihad, if for no other reason than the fact that the mujtahid's qualifications became increasingly
more difficult to fulfill. Human nature being what it is, the increased knowledge of many made it less possible for
the few to emerge and be recognized by a social process of consensus as possessing such superior qualifications
for authority over others. This necessarily led to the collectivization of ijtihad through a group of scholars who, as
112
Abd al-Ghani Basyuni Abd Allah, Wilayat al-Qada al-Idari ala Amal al-Idara: Qada al-Ilagha 39-40 (1983).
113
See also Ali ibn Muhammad al-Mawardi, al-Ahkam al-Sultaniyya (al-Babi al-Halabi Publishers 1966).
114
Abd Allah, supra note 112, at 45-46.
115
For a detailed study of the role of the mufti and occasional comparison with that of judge, see Islamic Legal Interpretation:
Muftis and Their Fatwas (Muhammad K. Masud et al. eds., 1996).
116
Muhammad ibn Ahmad ibn Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid (Garnet Publishing, 1994); Muhammad
ibn Ahmad ibn Rushd, Fatawa ibn Rushd (Dar al-Gharb al-Islami, 1978). See also Muhammad ibn al-Harith Khushani, Usul
al-Futya fi al-Fiqh ala Madhhab al-Imam Malik (al-Dar al-Arabiyah lil-Kitab al-Muhammad al-Majdub et al. eds., 1985).
117
Abu Hamid Muhammad ibn Muhammad Ghazali, al-Mankhul min Ta'liqat al-Usul (Dar al-Fikr, Muhammad Hasan Haytu
ed., 1980).
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a group, if not individually, possessed the high requisites of the mujtahid. However, even that was curtailed as of
the 6th century A.H. (12th century C.E.), probably to avoid the power that the mujtahid could wield.
The historical process of the madhahib described above and the emergence of sub-schools within each madhhab
occurred over several centuries. An examination of that evolution reveals many variables that contributed at once
to the richness of legal doctrine and to its complexity. Legal change was always mediated by the individual
authority of the jurisconsult, who was nonetheless controlled by his social and political milieu and by his temporal
and spatial context. Thus, the madhahib's insistence on the characteristics of the mujtahid, mufti, and qadi were
not beyond the effects of external factors. [*177] In time, an absolutely staggering accretion of doctrinal plurality
and ad hoc juristic applications made Islamic law's knowledge the province of the few. Because human nature has
its dictates, those who possessed the knowledge also possessed power, which they either wielded directly or
made available for others to use.
Students of that impressive legal legacy were left with the task of identifying new methods to rank authoritative
legal positions and pronouncements. Thus, another complex dimension was added to the science of law, that of
hierarchy of legal opinions. Considering the number of sources of law described above, the diversity of views as
to their ranking and relationship, and the ranking of their legal opinions (whether deemed to have been arrived at
by means of ijtihad, qiyas, or even progressive taqlid), the number of doctrinal variables became even more
numerous. Since the study of fiqh and ilm usul al-fiqh did not benefit from the artificial intelligence of computers that
could study the probabilities, determine the variables, and produce outcomes with certainty, Islamic law remained
the province of those few whose knowledge extended beyond that of the many.
Terminology then became as persuasive as method, and a new class of jurisconsults developed, ashab al-wujuh,
or "those who have a view." A new authoritative hierarchy thus developed separating on an ad hominem basis
those who were recognized as having an opinion and who could even be included in the category of mujtahid, and
those who were recognized as having views, ashab al-wujuh. It is the cumulative effect of this complexity and the
closing of the door to ijtihad that has led to the paralysis of Islamic law since the 6th century A.H. (12th century
C.E.). It was simply the "consensus" of those facing the inability to reach any other consensus.
To a large extent, this paralysis led to new doctrinal schools that sought to return to an earlier stage. They were
called al-salaf al-salih (the righteous forbearers) and usuliyah (fundamentalists). 118 In time, the search for the
evasive resulted in an attempt to end-run that complex historical baggage. In other words, the compromise was to
circumvent the complexity in search of earlier simplicity. That approach, the fruit of frustration and generations of
less than well-educated masses, brought to the fore many whose limited knowledge nonetheless found in the
uneducated masses a following they would not have otherwise obtained. In the realm of the blind, the one-eyed
became king.
[*178] Today's struggle for the progress of Islamic law is indeed a struggle between those who have the intellectual
capacity to assimilate scientific and technological knowledge (as well as knowledge of the Shari'ah and the
exigencies of what it takes to make modern societies function) and those who are comfortably anchored in the
limited and sometimes selective knowledge of the Shari'ah's history.
The great strides made between the 1st and 6th centuries A.H. (7th and 12th centuries C.E.) could be repeated
today through those possessing the moral and intellectual qualifications of their predecessors. Paradoxically, what
made yesterday's progress possible has made today's progress almost impossible, as the models of the past have
become unreachable by the standards imposed out of the past's perceptions. In a perverse way, Islamic political
fundamentalism, which claims to adhere to these past models and standards, actually aims to reverse that
historical course and return to some idealized simplistic time of Islam's early days. Regrettably, they are not met
by a counter-force of progressive secular Islamists possessed of piety, conviction, knowledge, and determination,
and who could bring about a renaissance of Islamic law, and thus of Islam and Muslim societies.
118
For an analysis of the politics of Islamic fundamentalism, see Khaled Abou El Fadl, Islam and the Theology of Power, 28
Middle E. Rep. 221 (Winter 2001); see also New Perspectives on Islam, supra note 108.
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1 UCLA J. Islamic & Near E.L. 135, *178
VI. Appendix: Chronology of Major Dates in the History of the Islamic State(s)
The following dates are based on the Common Era, or Christian Era, calendar:
[tdm'0000-0000',ql [tcg1m,mp1,vu1,ql] [tn1,2]The Beginning of Islam 622Hijra, the birth of Islam. 632Death of the
Prophet Muhammad (born ca. 572). [tn1,2]The Centralized Period 633-661The four "Wise Caliphs," with the seat
of the Caliphate at Medina. 661-750The Umayyad period, with the seat of the Caliphate at Damascus. 750-1258The
Abbasid period, with the seat of the Caliphate for the first Abbasid period at Baghdad and the second Abbasid
period at Samarra. [*179] [tn1,2]The Empires 1077-1327The Seljuks. The Seljuks and Ottomans extended their
control and influence over most of Asia Minor, portions of Central Asia and the Arab world, and into Europe through
the Balkans - including Albania, Bulgaria, parts of Hungary, Rumania, and Yugoslavia. 1327-1924The Ottoman (or
Osmanlu) Sultans, later the Ottoman empire, with their capital first at Bursa until 1453, and thereafter at
Constantinople (Istanbul). 1526-1857The Moguls. 1502-1736The Safavids. [tn1,2]Periods of Regional Rule
[tn1,2]The Fertile Crescent (Palestine, Syria, Lebanon, Iraq)
638Conquest of Palestine by the Muslims. 638-641Conquest of Syria, Lebanon, and Iraq. 641-661Under the
control of the four "Wise Caliphs." 661-750The Umayyad period, with the capital at Damascus. 750-1258The
Abbasid period, with the capital at Baghdad and Samarra. 877-1250Syria and portions of Lebanon intermittently
under the Tulunid, Ikhidid, Fatimid, and Ayyubid dynasties of Egypt. [tn1,2]Egypt
641Conquest of Egypt by the Muslims. 641-662Under the control of the four "Wise Caliphs." 662-868Under the
control of the Umayyad and Abbasid caliphs. 868Beginning of the Egyptian-based rulers. 868-904The Tulunid
dynasty. 935-969The Ikhidid dynasty. 969-1171The Fatimid dynasty. 1168-1250The Ayyubid dynasty.
1251-1517Mamluk dynasty. 1517End of the Egypt-based rulers. 1517-1805Under control of the Ottoman empire.
[tn1,2]Persia
638Beginning of the Muslim/Arab conquest. 638-640Completion of the conquest. 640-661Under the control of the
four "Wise Caliphs" in Medina. 661-820Under the Umayyad and Abbasid caliphs. [*180] 819Beginning of
fragmentation of the Persian rulers. 819-1055The Samanid rulers in Northern Persia. 820-874The Tharid rulers in
Khurasan. 864-1032The Alid rulers in Tabaristan. 868-903The Sattarid rulers extend throughout most of Persia.
879-930The Seljuk rulers unite Mesopotamia and most of Persia. 1037-1194The Sajid rulers in Azerbaijan.
From before the end of the Seljuk rule until 1502, Persia was divided by different rulers in different parts of that
region. There were rulers for the areas of Khiva, Azerbaijan, Fars, Luristan, upper Mesopotamia, Diyarbakir,
Kirman, and Kurdistan. 1502-1736The Safavid empire.
A portion of the territory now in the Soviet Union was part of Persia, as was Medina and parts of Afghanistan.
[tn1,2]North Africa
669Muslim conquest of North Africa to Morocco completed. 669-800Under the control of Umayyad and Abbasid
caliphs. 789Beginning of locally-based rulers. 789-985The Idrisid rulers of Morocco. 800-909The Aghlabi rulers of
Tunis. 900-972The Fatimids rule over North Africa as part of the Fatimids based in Egypt. 972-1148The Zayri
rulers in Tunis. 1056-1147The Al-Moravi rulers of Morocco. 1130-1269The Al-Mohad rulers. 1228-1534The Haisi
rulers of Tunis. [tn1,2]Afghanistan
711Conquest of Sindh by Muslims. 711-962Period of uncertainty, fragmented rule, and intermittent control by the
Umayyad and Abbasid caliphs and local rulers. 962-1186Ghaznavid rulers. 1100-1215Ghorid rulers. 1526-1857The
Mogul Emperors.
A portion of this region included territory in what is now the Soviet Union and portions of the Indian sub-continent,
in particular part of what is now Pakistan. Mogul emperors extended their control and influence in certain parts of
Russia, Central Asia and the Balkans. [*181] [tn1,2]Spain
710-712Conquest of Spain by Muslims. 713-750Under the Umayyad caliphs. 756-1031Spain-based rulers: the
Umayyads of Cordoba, division of Spain, intermittently under the control of the North African rulers. 1492End of
Muslim rule in Spain.
The Muslim rulers of Spain occupied a portion of southern France for a brief period of time, but no separate rule
was established here. [tn1,2]Sicily
827-878Period of conquest by the Aghlabi rulers of Tunis. 878-909Period of uncertainty. 909-1071Under the
control of the Fatimids of North Africa and Egypt.
The rulers of Sicily occupied southern Italy for close to 300 years, but no separate rule from that of Sicily was
Fatemeh Hajihosseini
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1 UCLA J. Islamic & Near E.L. 135, *181
established there.
Copyright (c) 2002 UC Regents
UCLA Journal of Islamic and Near Eastern Law
Fatemeh Hajihosseini