Shari’a: Islamic Law in the Contemporary Context

Amanat and Frank Griffel
Stanford University Press
2007
ISBN:978-0-8047-5639-6
Chapter 1: Introduction, Page 1 Chapter 4: Islamic Law and Legal Change: The Concept of Maslaha in Classical and Contemporary Islamic Legal Theory Pages 63-64

When Muslims discuss the ethical imperatives of their faith regarding contemporary moral issues such as abortion, stem-cell research, or the treatment of racial or religious minorities, they will at one point consider what Shari’a says about these questions. All normative discussions within Islam, as well as between Muslims and members of other faiths, center on the content of Shari’a, a concept that can be roughly translated as Islamic religious law….

ISLAMIC LAW AND LEGAL CHANGE
Social change poses important questions for any legal system that is based on a finite text, be it a constitution or a religious scripture. The main issue jurisprudents have to come to terms with is how the limited material foundation of the law can be brought to bear on everyday life in an ever-changing environment. In a legal system that is based on a man-made constitution, legislators have the possibility to address social change by means of enacting laws or constitutional amendments (5). In Islamic law, God is conceived to be the sole legislator. With the death of the Prophet Muhammad in 632 CE the possibility of enlarging or changing the material sources of the law, namely, the Qur’an and Sunna (6), by means of revelation came to an end.

As in other legal systems, Islamic jurists resort to interpretation in order to apply the material sources of the law to the actual legal cases that need to be ruled upon. This interpretive activity includes extending the existing law to new situations that are not immediately addressed in the scripture and adapting or setting aside rulings established in the material sources of the law according to changed circumstances.

Extending and adapting the revealed law raise the question of how to derive the correct ruling for instances in which the law does not regulate the believer’s conduct explicitly. That the ruling be correct is important for several reasons. One is that only a correct ruling will be considered legitimate and will be followed (barring brute force). When jurists extend or adapt the law, they risk destabilizing their own and the law’s legitimacy unless they can demonstrate with considerable certainty that the new ruling remains true to the divine will. Theoretically, jurists can achieve legal certainty in two ways. First, they can adopt a formal legal rationality in which the validity of the derived ruling depends on the application of strict procedural rules that are logically sound; the correctness of the procedures guarantees legal certainty and minimizes subjectivity and arbitrariness. Second, jurists can follow a substantive legal rationality that evaluates whether the derived ruling accords with the ethical purpose of the law; the more the ruling corresponds to the purpose of the law, the higher its degree of certainty and the closer its approximation to the divine legislation.

Another reason why a ruling that extends or adapts the Qur’an or Sunna needs to be correct results from the religious character of the law. Obedience and disobedience to God’s laws affect the believer not only in this world but in the afterlife in the form of divine reward and punishment. A jurist’s pronouncement that the believer is prohibited from performing or obligated to perform a particular action involves consequences beyond the material world. Only a correct ruling can guarantee that the believer’s conduct is correct in the eyes of God.

Historically, Islamic jurists and theologians developed two different answers to the question of why or when a ruling is correct. Their inquiry was connected more generally to the question of how to attain knowledge about the ethical value of an act. One position, which is characterized by rationalistic objectivism and associated with the Mu’tazilite school of theology, holds that acts are inherently good or bad and that the human intellect is able to know their value without the aid of revelation (7). The goodness or badness of an act is tied primarily to its beneficence or harm, which the human intellect can assess (8). A correct legal ruling thus would be one that permits a beneficial act or prohibits something harmful. The other position, characterized by theistic subjectivism, is that of the Ash’arite school of theology (9). Adherents of this position hold that something is good only because God commands it and bad only because He prohibits it. If God imposed lying or idolatry on the believer, then lying and idolatry would be good by definition. This school of thought emphasizes that the human intellect is incapable of arriving at moral knowledge independent from the divine revelation. The ethical and legal value of an act is knowable exclusively through an evaluation of God’s will as revealed in scripture. A correct ruling can be derived only from the revealed law (10).

Both positions are problematic. Although the adherents of the position of rationalistic objectivism accept revelation as a supplementary source of moral knowledge (11), their view that the intellect is able to determine what is good leads ultimately to the irrelevance of the revealed law. When any legal issue that is not directly addressed in scripture can be decided by recourse to rational inquiry unaided by revelation, then with the passing of time and social change the applied body of law based on revelation will continuously decrease. With the exception, perhaps, of the area of ritual worship (ibadat), God’s law as pronounced in the Qur’an and Sunna will lose its importance for people. This position also raises questions about identity: what makes an individual a Muslim or a society Islamic? Is it only the performance of different religious rituals that distinguishes Muslims from Christians and Jews? What is the role of the Qur’an and Sunna in society?

Endnotes: (5) The potential for legislative revision does not necessarily mean that the law itself undergoes much change. For example, despite more than ten thousand proposals for amending the U.S. Constitution, only twenty-seven amendments have been ratified in its two-hundred-year history.

(6) Because in this chapter I am not concerned with the development of Sunna and the hadith, I treat Sunna as a body of textual material and consider it, together with the Qur’an, as scripture.

(7) I follow Hourani, who called the approach of these two groups toward ethical knowledge rationalistic objectivism and theistic subjectivism; George F. Hourani, Islamic Rationalism: The Ethics of Abd al-Jabbar (Oxford: Clarendon Press, 1971), 3, 8-13.

(8) Ibid., 69-75,104-15,121-25; A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (Albany: State University of New York Press, 1995), 38-61. The terms scholars used to describe benefit and similar meanings are naf, manfaa, salah, and maslaha, and for harm darra, madarra, and mafsada.

(9) It needs to be noted that the Ash’arite position of theistic subjectivism had developed before al-Ash’ari (d. 935) and in its essence was held by such jurists as al-Shafi’i (d. 820) and Ahmad ibn Hanbal (d. 855) (cf. Hourani, Islamic Rationalism, 3, 9-12). Likewise, rationalistic objectivism was not advocated only by people who would be counted among Mu’tazilite theologians. Ibn al-Mugaffa` (d. 756), the advisor to the caliph al-Mansur, espoused similar ideas (cf. `Abd Allah Ibn al-Mugaffd, “Risala fi 1-sahaba,” in Athar Ibn al-Mugaffa, ed. `Umar Abu 1-Nasr [Beirut: Dar Maktabat al-Hayat, 1966], 348-49, 354 55, 360). And some Mu’tazilite theologians, such as Abu l-Qasim al Balkhi al-Ka`bi (d. 931), held views on moral knowledge that were close to al-Ash’ari’s (cf. Reinhart, Before Revelation, 14-27, 31-32).

(10) Reinhart, Before Revelation, 62-76.

(11) See Hourani, Islamic Rationalism, 132-37.

Copyright 2007 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved.

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