Law, Islamic philosophy of

One of the principles of Islam which precedes juristic discussion proper is that God, the creator and lord of the world, has commissioned humanity to believe, confess and act in particular ways. The details of this commission (taklif) were handed down through a sequence of prophets, culminating in Muhammad, and were then embedded in two literary structures which together constitute revelation (wahy): the Qur'an, which is the word of God, and the hadith, short narratives of the prophet's life and sayings which give expression to his (and his community's) ideal practice or sunna. The totality of beliefs and rules that can be derived from these sources constitutes God's law or shari'a.

Juristic literature has generated two major literary genres. One, known as usul al-fiqh (roots of jurisprudence), deals with hermeneutical principles that can be used for deriving rules from revelation; it represents, in part, something like a philosophy of law. The other, dominant genre, furu' al-fiqh (branches of jurisprudence), is an elaboration of rules which govern ritual and social activities. An overall philosophy of law in Islam, not fully articulated in the pre-modern tradition, can only be discovered through consideration of both genres.

  1. Revelation
  2. Usul al-fiqh
  3. Furu' al-fiqh
  4. Contemporary trends

1. Revelation

In Islamic belief there are a number of principles, derived from the exercise of the intellect or from history, which precede juristic discussion proper. These include, for example, that God exists, that he is creator and lord of the world, and that he has commissioned humanity to believe, confess and act in particular ways. The details of God's commission (taklif) have been mediated through a sequence of prophets culminating in the seal of all the prophets, Muhammad, whose message abrogates previous messages and is for all peoples. With the death of the Prophet, the divine command has been embedded in two literary structures which together constitute revelation (wahy): the Qur'an, which is the word of God, a miracle, and the hadith, short narratives of the Prophet's life and sayings which give expression to his (and his community's) ideal practice or sunna. The totality of beliefs and rules that can be derived from these sources constitute God's law or shari'a (see Islamic theology).

The Qur'an is usually deemed to contain no more than about 500 verses of legal import. The body of hadith was immensely larger. It was contained in a number of admired collections, the core of which included, for the mainstream Sunni community, the pre-eminent collections of Bukhari (d. ah 256/ad 870) and Muslim ibn al-Hajjaj (d. ah 261/ad 875). Beyond these, there were a number of collections that might be brought into the play of juristic discussion; the major sectarian group, the Shi'is, also had their own collections. The vast bulk of hadith material, as contrasted with the modest quantity of juristic material in the Qur'an, ensured that hadith was in practice the dominant element of revelation in hermeneutical discussions. The Book is more in need of the sunna than the sunna of the Book, said the Syrian jurist Awza'i (d. ah 157/ad 774), echoing the efforts of other scholars to articulate the controlling effects (judging, abrogating and explaining) of sunna on the Qur'an.

2. Usul al-fiqh

The literary tradition of usul al-fiqh (roots of jurisprudence) is usually thought to begin with the Risala of Muhammad ibn Idris al-Shafi'i in the third century ah (ninth century ad). However, there is then a hiatus between this work and the emergence, some two centuries later, of other works of the same kind. Modern scholars have put this down to pseudepigraphy, or to the community's engagement with theological and intellectual problems. Once established, this tradition, although it developed in a variety of ways, showed remarkable structural and conceptual unity over the centuries, with individual books always including a presentation of hermeneutical principles and an elaboration of the theory of ijtihad (independent judgment).

Since revelation was constituted by written texts, a primary bundle of hermeneutical techniques related to linguistic and rhetorical structures. These were usually presented under simple antithetical headings (the general and the particular, commands and prohibitions, the clear and the ambiguous, the absolute and the qualified, truth and metaphor and so on), which might or might not be integrated into a general theory of language and rhetoric. Consideration was given to the principle of abrogation (naskh), a result of diachronic revelation, and (with reference to hadith only) to the mode of transmission, which was either general report (tawatur, giving rise to certain knowledge) or isolated report (ahad, giving rise to uncertain knowledge or opinion). Consensus (ijma'), whether of the community or of scholars, on the meanings of revelation was discussed, as was the operation of analogy (qiyas) as a means (variously qualified) to permit extrapolation of rules from a finite body of revealed texts. These, together with a limited number of extra items, either of substance (such as the opinions of the Prophet's companions) or of judgment (such as the relevance of maslaha, or social welfare) represented the major focuses of analysis and discussion within a single and more or less unified literary tradition for about a thousand years. The hermeneutical loyalties of the mainstream Sunni community were summarized by reference to the four principles (usul) of Qur'an, sunna, consensus and analogy.

The whole bundle of interpretative devices and principles of judgment was acknowledged to lead to conflicting possibilities (ta'arud) and to the necessity for rational and justified preference (tarjih). The context and the significance of juristic preference depended on the theory of ijtihad, the expression of which was a culmination and a kind of resolution for all other arguments in a work of usul. Ijtihad literally means effort; technically, it means the exertion of the utmost possible effort by a trained jurist, taking into account all the relevant texts of revelation and principles of interpretation, in order to discover, for a particular human situation, a rule of law. Underlying this definition there is an important epistemological principle. It concedes that most of the details of the law are not known (not certain) but are a matter of skilled (and preferably pious) deduction on the basis of principles that are themselves subject to debate and incapable of providing certainty.

Within this area, the jurists were committed to acknowledging the views of other jurists, if adequately defended, and to the elaboration of systematic arguments to defend their own views. Committed in this respect to debate and uncertainty, the jurists (in this context mujtahids, those who undertake ijtihad) also acknowledged a need for final decisions in particular cases. This was provided by asserting that the result of an act of ijtihad was binding both on the mujtahid himself and, where relevant, on those who were not experts in the law and could not participate in juristic debate (muqallids). These, by an exercise of choice (which was itself an act of ijtihad), were required to commit themselves to a particular mujtahid and to accept his rulings. The theory of ijtihad thus provides both an epistemology (permitting and encouraging debate and intellectual play) and a structure of authority. In its former aspect it accounts (in part) for the vitality of the tradition of furu' al-fiqh, and in its latter aspect it justifies the participation of the jurists in positions of authority, notably as judges (qadis) and the jurisconsults (muftis).

The structures set out above, which were capable of considerable and diverse development, represent the main features of usul literature for both the Sunni community and for the Shi'is. The latter differed from the Sunnis in rejecting most forms of analogical argument. Summarizing their usul, they substituted for the Sunni principle of analogy that of intellect ('aql) deemed by them (but not by the Sunnis) to be capable of independent moral judgment. The Shi'i community was initially suspicious of the theory of ijtihad (perhaps because it too easily acknowledged plurality and uncertainty in the law), but it was integrated into their works of usul from the time of 'Allamah al-Hili in the eighth century ah (fourteenth century ad). Amongst the standard classics of the Sunni tradition are the Mustasfa of al-Ghazali (§2) and the Muwafaqat of Shatibi (d. ah 790/ad 1388), showing an original foregrounding of the principle of maslaha. One of the outstanding usul writers of the Shi'i tradition after 'Allamah is the nineteenth-century Shaykh Murtada ibn Muhammad Ansari.

3. Furu' al-fiqh

The other major genre of juristic literature, furu' al-fiqh (branches of jurisprudence), is constituted primarily by rules (positive law). It might be expected that individual writers in this genre were, from generation to generation, engaged in the process of ijtihad. However, this is not quite the case. In the course of the ninth and tenth centuries ad, the Islamic community became committed to a pattern of juristic loyalties whereby, in the end, all Muslims identified themselves with particular schools (madhahib) of the law. Within the Sunni tradition there were four dominant schools, the Maliki, Hanafi, Shafi'i and Hanbali schools, each named after its founder. These acknowledged each other and also gave qualified acknowledgement to a number of minor schools, and to the Shi'is. The vast majority of significant jurists belonged to one of the major schools, usually by virtue of birth and geography, only rarely by choice and adoption. When they wrote a work of furu' al-fiqh, they gave expression to the rules (with the attendant patterns of dispute and debate) that they had inherited within their school. The fundamental acts of ijtihad were thus projected back to the founder and to the early masters. By an ongoing act of loyalty, commitment and preservation, successive generations of jurists rediscovered and restated the rules of the tradition to which they belonged.

Works of furu' therefore show a dominant hermeneutical orientation towards earlier works in their own tradition, and not towards revelation. This is reflected in the characteristic patterns of citation, which invariably recall the opinions and judgments of earlier masters within the school, and the literary forms of such works (epitome, commentary, supercommentary), all marks of hermeneutical commitment to a particular school. In so far as writers in this tradition actually deployed arguments of the type described in works of usul, they did so in order to demonstrate that the inherited structure of rules could be aligned with revelation and not for the purposes of ab initio deduction of the law. Developments in the law, manipulation of its concepts and their application to new cases were always carried out in the light of the inherited structure. The inconcinnity between the principles of jurisprudence as set out in a work of usul and the practice of a writing jurist was eventually acknowledged with the recognition that, in relation to the school founders, these were principles of discovery while, in relation to later jurists, they were principles of justification. Hermeneutical thinking within the tradition (based on juristic texts, not texts of revelation) was known as ijtihad fi 'l-madhhab or school-ijtihad and distinguished from the independent ijtihad of the founding figures.

4. Contemporary trends

Muslim thinkers of the twentieth century, committed to various programmes of legal reform or political action, have developed a number of theoretical props which take them away from the traditional modes of juristic expression. They have often abandoned the particularity of school loyalties; instead, they have adopted law-drafting techniques that reflect the realities of modern nation-states, borrowed legal and social principles from a variety of sources, and argued strenuously that the door of independent ijtihad is open, meaning that they can again make independent legal judgments based on direct confrontation with revelation (often using a definition of revelation, at least in relation to hadith, which is more limited than that of the past). The major, and certainly the most obvious, modern responses to the juristic tradition have been practical, either in the service of state law or in the service of political opposition. There has been a corresponding lack of interest in the philosophy that is articulated in the traditional forms of juristic discourse, especially those of furu'. In different ways, both of the traditional genres, usul and furu', acknowledge the exploratory nature of the effort of defining God's law and situate themselves in a flexible and pluralist system of rules. They may have more relevance to contemporary problems than is generally conceded (see Islamic philosophy, modern).

The modern linguistic calque falsafat al-tashri' (philosophy of legislation) or its equivalent is currently used in several Islamic countries to designate a variety of academic activities. These range from conservative scholarship, drawing heavily on the tradition of usul al-fiqh, to analytic descriptions of legal developments in modern Islamic states and something like the Western discipline of philosophy of law.

See also: Epistemology in Islamic philosophy; Ethics in Islamic philosophy; Islamic philosophy, modern; Islamic theology; Law and ritual in Chinese philosophy; Law, philosophy of

Copyright © 1998, Routledge.

References and further reading

Calder, N. (1993) Studies in Early Muslim Jurisprudence, Oxford: Clarendon Press. (The most recent substantial effort to describe the early stages of Islamic juristic thinking.)

Calder, N. (1996a) 'Islamic Law', in S.H. Nasr and O. Leaman (eds) History of Islamic Philosophy, London: Routledge, 979-98. (Offers a general account of Muslim juristic literature, initiating a literary description of the tradition of furu' al-fiqh.)

Calder, N. (1996b) 'Al-Nawawi's Typology of muftis and its Significance for a General Theory of Islamic Law', Islamic Law and Society 3 (2): 137-64. (Demonstrates the emergence and elaboration of a clear theoretical distinction between independent ijtihad and ijtihad fi 'l-madhhab.)

Hallaq, W. (1994) Law and Legal Theory in Classical and Medieval Islam, London: Variorum. (An important reassessment of scholars' approaches to the history of ijtihad.)

Hallaq, W. (1992) 'Usul al-fiqh: Beyond Tradition', Journal of Islamic Studies 3 (2): 172-202. (The bibliography of this article contains an up-to-date list of Hallaq's substantial and important body of studies related to usul al-fiqh.)

Masud, M.K., Messick, B. and Powers, D. (1996) Islamic Legal Interpretation: Muftis and their Fatwas, Cambridge, MA: Harvard University Press. (An important and wide-ranging collection of articles representing some of the most recent thinking about the theory and practice of Islamic law.)

Schacht, J. (1950) Introduction to Islamic Law, Oxford: Clarendon Press. (Still the classic introduction to the subject, with an excellent but now dated bibliography.)

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