This post has been contributed by Professor. Mashood Baderin, Module Convenor for Introduction to Islamic law.
Last week, I had a discussion with a student from my Islamic law class at SOAS University of London, which I believe is very relevant for a proper understanding of the nature of Islamic law from the perspective of Islamic legal theory (usūl al-fiqh). The student came to see me to seek clarification on what her mother had told her about engaging contextually with classical Islamic jurisprudential views and whether the views of classical Islamic jurists are divine and can never be reviewed and possibly changed. She said her mother was of the (erroneous) view that it is not allowed at all to question or seek to contextually understand the jurisprudential views of classical Islamic jurists as contained in the classical jurisprudential books of Islamic law and that doing so could lead a Muslim to lose his or her religious faith! The student (a Muslim) was a bit worried as we had, during our study of usul al-fiqh in the Islamic law class, engaged extensively and contextually with classical Islamic jurisprudence in our readings and discussed the possibility of changes in Islamic jurisprudential views in the context of time and place within the rules of usūl al-fiqh.
It is worrying that the erroneous view that the jurisprudential views of the classical Islamic jurists are divine and cannot change at all is quite widespread, particularly amongst lay persons mostly in the Muslim world. This is due mainly to the non-distinction between the concept of Shari’ah as the divine source of Islamic law and the concept of Fiqh as the jurists’ understanding of what the law is as derived from the Sharī‘ah on the different issues covered by Islamic law. This important need to distinguish between the Sharī‘ah and Fiqh is often under-estimated by many scholars and commentators on Islamic law. Often the term Sharī‘ah is used loosely to refer to both the divine and human elements of Islamic law. It is usually conflated with Fiqh and consequently Islamic law is casually described as the “law of God” suggesting that it is completely divine with no human input at all and thus the juristic rulings cannot be questioned at all. This often creates confusion as rightly noted by Hammūdah Abd al Ati (1997, p.14) that “confusion arises when the term shari’ah is used uncritically to designate not only the divine law in its pure principal form but also its human subsidiary sciences including fiqh”.
In making this distinction, it is important to note that the Sharī‘ah does not exclude Fiqh as an essential jurisprudential element of Islamic law, yet the two are not essentially identical. The Sharī‘ah is divine but Fiqh is a human jurisprudential mechanism for understanding it. Every Fiqh ruling is a human understanding and interpretation of the divine provisions contained in the Sharī‘ah by a qualified Islamic jurist (mujtahid) in accordance with established rules of usūl al-fiqh. Islamic jurists, including the classical jurists, sometimes differ in their Fiqh rulings based on their respective understanding of the divine provisions contained in the Sharī‘ah. The possibility of such juristic difference is acknowledged by the concept of ikhtilāf (differences of opinion) within the rules of usūl al-fiqh. This is reflected in the Fiqh of the established jurisprudential schools under Islamic law today. For better clarity, this also calls for the need to distinguish between the “sources”, “methods” and “principles” of Islamic law.
Traditionally, Islamic law is usually stated as having four “sources”, namely the Qur’an, the Sunnah, Ijmā‘, and Qiyās. Considering all these four elements strictly as “sources”, leads to a major misunderstanding that all of them and the Islamic legal system generally are completely divine, immutable and inflexible. In the attempt to distinguish the divine from the human, these four “sources” are sometimes classified into “primary sources” (consisting of the Qur’an and the Sunnah, which are divine) and “secondary sources” (consisting of Ijmā‘ and Qiyās, which are human). In his discussion of the sources of Islamic law, Professor Hashim Kamali classifies them more specifically into “divine sources” (naqlī, meaning revealed) and the “non-divine sources” (aqlī, meaning rational). He defines the divine sources as the “basic source of evidence” namely the Qur’an and the Sunnah which are constant, and the non-divine sources as the “methodology of extracting from the sources”.
As I have argued elsewhere, it is better to classify these traditional “four sources” of Islamic law into “sources” (masādir) and “methods” (turuq) for clarity. Such classification identifies in a strict jurisprudential sense that the “sources” of Islamic law are two namely the Qur’an and the Sunnah, which constitute the divine and immutable Shari’ah, while Ijmā‘, and Qiyās are the “methods” of Islamic law and part of Fiqh, based on human juristic understanding the two sources which may change, when necessary according to circumstances. The main significance of this distinction in relation to Islamic legal theory is that it clarifies that by its nature Islamic law consists of two component parts: (i) immutable divine sources termed the sharī‘ah and (ii) human interpretation of the sources termed fiqh. Hammūdah Abd al Ati (1997, p.14) has further noted that
those who subscribe to the divine origin and the unchangeable essence of Islamic law seem to mistake the general for the variant, that is to view the whole legal system … as identical with shari‘ah in the strict pure sense [and] those who subscribe to the … human character of Islamic law seem to view the whole system as identical with one part thereof, that is fiqh which, strictly speaking is human and socially grounded. Much of this confusion can probably be avoided if the analytical distinction between shari’ah and fiqh is borne in mind and if it is realized that Islamic law is held by Muslims to encompass two basic elements: the divine, which is unequivocally commanded by God or His Messenger and is designated as shari’ah in the strict sense of the word; and the human, which is based upon and aimed at the interpretation and/or application of shari’ah and is designated as fiqh or applied shari’ah.
Thus, while Islamic law is, indeed, based textually on divine religious sources, whose definite provisions do not change, its interpretation, methods, principles and application are based on non-divine human jurisprudential reasoning process generally referred to as ijtihād, the rulings of which can change over time in response to the changing circumstances of time and place. The need for human interpretation of the sources is very well acknowledged in both classical and contemporary works on Islamic jurisprudence. Professor Bernard Weiss (1978, p.199) has rightly observed in that regard that:
The distinction between law and its sources is carefully maintained in Islamic jurisprudence. This distinction assumes that the Holy Law, as the aggregate of divinely-ordained rules, is not entirely self-evident from the sacred texts. … Because the Law is buried, as it were, within the (legally) imprecise and sometimes ambiguous language of the sacred texts, it is said to be extracted from the texts; and it is for this reason that the texts are to be considered sources of the Law rather than the Law itself. The process of extracting or deriving (istinbāt, istithmār) legal rules from the sources of the Law is termed, with reference to its character as a human activity, ijtihād.
This point had been well established much earlier by the 12th century Islamic jurist, Abū Hāmid al-Ghazālī, in his classical book on Islamic legal theory, al-Mustasfā min ‘ilm al-usūl, wherein he indicated the vital jurisprudential need to appreciate the Islamic jurist’s role of extracting the law from the sources. Al-Ghazālī metaphorically described the law as fruits (thamarāt) that must be extracted from the fruit tree (al-muthamir) by a qualified Islamic jurist (mujtahid) acting as the cultivator (al-mustathmir) in his role as an expert who exerts his reasoning in understanding the sources according to established methodologies. It is important to emphasise, however, that this does not also mean that Islamic law is completely secular, bearing in mind that the practice of ijtihād must always be within the context of the divine sources.
Based on their human understandings of the provisions of the Sharī’ah through careful and prolonged study, the classical Islamic jurists compiled Fiqh manuals containing their rulings on different issues in Islamic law as represented by the different schools of Islamic jurisprudence (Madhāhib) that were consequently established around the 10th century, namely the Māliki, Hanafī, Shāfi’ī and Hanbalī which are Sunnī schools as well as the different Shī’ah schools of jurisprudence that are followed respectively in different Muslims countries today. These jurisprudential rulings and compilations by the classical Islamic jurists are often what is generally referred to in lay person’s language as “Sharī’ah” in most parts of the Muslim world today. But unlike the Sharī’ah (Qur’an and Sunnah) itself, the Fiqh manuals are neither divine nor immutable, even though many lay persons in the Muslim world tend to consider them so today. The titles of some of these manuals reflect appropriately that they are Fiqh manuals rather than Shari’ah manuals. Examples of such are Abd al-Rahmān al-Jazīrī’s classic al-Fiqh alā mazāhib al-arba‘ah (The jurisprudence according to the four schools) and Sayyid Sābiq’s Fiqh al-Sunnah (Jurisprudence based on the Sunnah) and Wahbah al-Zuhaylī’s al-Fiqh al-Islamī wa Adillatuh (Islamic Jurisprudence and its Evidences).
In that regard, Islamic law as Fiqh rulings from the Sharī’ah can be perceived either in a strict historical or an evolutional sense. Those who perceive Islamic law in a strict historical sense often restrict it to the traditional rulings of the classical jurists as if those rulings were immutable, like the Sharī’ah itself. This creates a reductionist perception of Islamic law that is hinged on the disputed theory of the “closing of the gate of legal reasoning (Ijtihād)” around the 13th Century. This theory is to the effect that Islamic law must be restricted to the rulings of the classical jurists as recorded in the Fiqh manuals of the established schools of Islamic jurisprudence dating back to the 10th Century. That perception essentially represents Islamic law as a system stuck in the past and not reflective of the present. Conversely, the evolutional perception of Islamic law is the opposite of the strict historical perception, and it is to the effect that while the Fiqh rulings of the classical jurists provide a rich source of jurisprudence they do not estop the continual development of Islamic law through the continual legal reasoning process of Ijtihād by qualified Islamic jurists of different periods. The evolutional perception represents Islamic law as a system that evolves in necessary response to the dynamic nature of human life as is necessary to reflect the present without losing sight of the legal reasonings of the past.
There is theoretical and practical evidence to establish that, Islamic law as Fiqh rulings derived from the Sharī’ah has not actually remained static or immutable but has responded and adjusted to the necessary factors of time and circumstances since its inception. This is particularly so in respect of issues pertaining to inter-human social relations (Mu’āmalāt) which are more affected by the dynamic nature of human life, in contrast to issues pertaining to religious devotion and acts of worship (Ibādāt) which are more relatively stable. There are relevant established jurisprudential principles and maxims of Islamic law depicting its evolutional and flexible nature both in theory and practice. A well-established relevant Islamic jurisprudential maxim is expressed in Arabic as “Lā yunkar taghayyur al-ahkām bi taghayyur al-azmān” (It is not disapproved for legal rulings to change with changes in times). This maxim was codified as article 39 of the al-Majallah al-Ahkām al-Adliyyah, which was an Ottoman Court Manual adopted during the Ottoman period in the late 19th Century.
The evolutional nature of Islamic law through Fiqh is reflected today in the degrees of reform, particularly in the area of Islamic family law, in different Muslim-majority States as well as in the views of contemporary Islamic jurists and scholars in the Muslim world generally. Professor Kamali illustrates this as follows:
In modern times legal interpretation or reasoning [in Islamic law] has occurred in the following three ways: statutory legislation, judicial decision and learned opinion (fatwa), and scholarly writings. Instances of legislative interpretation, which Noel Coulson referred to as “neo-ijtihad,” can be found in the modern reforms of family law in many Muslim countries, particularly with reference to polygyny and divorce, both of which have been made contingent upon a court order, and therefore are no longer the unilateral privilege of the husband. Current reformist legislation on these subjects derives some support from the jurists’ doctrines of the Maliki and Hanafi schools, but these reforms are essentially based on novel interpretation of the Quran’s relevant portions. Numerous instances of independent reasoning are also found in the views of the ulama [religious scholars], such as the collections of published opinions of Muhammad Rashid Rida in the 1920s and those of the late shaykh of Azhar, Mahmud Shaltut, in the 1950s. In the 1967 case of Khursid Bibi vs. Muhammad Amin, the supreme court of Pakistan’s decision to validate a form of divorce, known as khula, that can take place at the wife’s initiative, even without the consent of the husband, can be cited as an example of judicial ijtihad. Another example of ongoing reinterpretation is the scholarly contribution of the Egyptian scholar Yusuf al-Qaradawi, who validated air travel by women unaccompanied by male relatives. According to the rules of fiqh that were formulated in premodern times, women were not permitted to travel alone. Al-Qaradawi based his conclusion on the analysis that the initial ruling was intended to ensure women’s physical and moral safety, and that modern air travel fulfills this requirement. He further supported this view with an analysis of the relevant hadiths on the subject and arrived at a ruling better suited to contemporary conditions. (Kamali, H.M., “Law and Society: The Interplay of Revelation and Reason in the Shariah” in J.L. Esposito (ed.) The Oxford History of Islam, Oxford: OUP, 1999, p. 107 at 118.).
It is therefore untenable to suggest that the views of the classical Islamic jurists as propounded in their different Fiqh manuals are divine and cannot be contextually engaged with and possibly reviewed in the light of necessary circumstances of place and time in accordance with relevant rules of usūl al-fiqh. The only condition is that such contextual engagement and possible revision must be undertaken by a qualified Islamic jurist who has the required knowledge and qualification to do so. The distinction between Sharī’ah, Fiqh and State Laws is further analysed in this Musawah video.
In the next Introduction to Islamic Law Blog 2, I will further illustrate this point with specific reference to the classical jurisprudential views on the issue of marriage of minors in Islamic law and the relevant changes to those classical views in the Islamic family codes of some modern Muslim-majority states.