Sharia

Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh

Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh (published 1990) is a collection of papers written in honor of the Palestinian-American professor Farhat Jacob Ziadeh (1917-2016), founder and first chairman of the Department of Near Eastern Languages and Civilization at the University of Washington.

I bought this book after seeing it cited in Omar Farahat’s 2019 book The Foundation of Norms in Islamic Jurisprudence and Theology and finding it for sale for only $6 on Amazon.com, without looking into the book’s contributors. I was therefore pleasantly surprised to find that it had articles by some of the best scholars of Islamic studies in the late 20th century: Wael Hallaq, George Makdisi, his son John Makdisi, and Bernard Weiss.

The first article is by Wael Hallaq and studies the problem of inductive corroboration in Islamic legal reasoning. How many witnesses are required to prove a point beyond doubt? Hallaq studies the issue of the mutawātir report (a hadith report that is transmitted by so many people that a person can be completely sure of its authenticity). Some scholars fixed the number for establishing tawātur at five witnesses, while others chose 12, 20, 40, 70 or 313. But during the tenth and eleventh centuries, the dominant view emerged that only God knows how many witnesses would be required for tawātur.

The opposite of a mutawātir report is an āḥād (“singular”) report; a report that does not come from a sufficient number of transmitters to establish certainty. Hallaq argues that according to the jurists, an āḥād report had a probability of authenticity of less than 1 (i.e. less than 100%) but higher than 0.5 (50%). By the mere fact of a report having an unbroken chain of transmitters to the Prophet PBUH, it was considered more likely to be authentic than not. And when two singular reports support a particular point or issue, the probability increases.

In my essay Mathematical Hadith Verification: A Guide to the New Science of Probabilistic Hadith Transmitter Criticism I propose a way of formalizing these probabilities. But unlike the jurists, I treat the probability of the reliability of each transmitter independently. Each transmitter is given the benefit of the doubt by being considered as 60% likely to be truthful and accurate. But when more transmitters are added to a chain, their probabilities are combined, lowering the integrity of the information transmitted.

The second article is by Jeanette Wakin of Columbia University (d. 1998) and focuses on the views of the Ḥanbalī scholar Ibn Qudāma (d. 1223) regarding interpreting divine commands. When God tells us in the Quran to do something, does this imply permission, recommendation or obligation? In verse 5:2, God tells us, “when you leave the state of iḥrām, then hunt.” Interpreting this command as implying obligation means that every pilgrim is obligated to go hunting after they are done with the rituals of the pilgrimage to Mecca. But of course, it is widely known that hunting is not obligatory; so the command must only imply permission. While jurists like al-Ghazālī adopted the moderate view that divine commands cannot be interpreted as permission, recommendation or obligation unless we can find out more information about the command (for example in the Prophet’s traditions PBUH), Ibn Qudāma’s view was that all commands imply obligation unless proven otherwise, except in the case of a command that comes after a prohibition, in which case the command only implies permission (as in the hunting example above).

Bernard Weiss’s article is on the problem of objectivity in Islamic law. How can objectivity be ensured in the interpretation of the law? Do the differences among scholars on matters of law imply a lack of objectivity? Weiss argues that the jurist’s performance of ijtihād (of re-analyzing the sources of the law and reaching new decisions) is how objectivity is ensured within our human limitations. Studying revelation (the Quran and the Sunna, i.e. the Prophet’s words and actions) always has a chance of leading to new results. But in order to have practical law, we must be able to establish an end to this process, otherwise we will never reach a conclusion; we will always be suffering the uncertainty that better knowledge and understanding will lead to different results.

The process of ijtihād solves this dilemma by giving a qualified jurist the right to do his own independent research until he reaches a point when he can in all honesty say that he has done his best with what is available. At that point he can issue a ruling that will be considered objective and applicable for himself and his followers. The process of ijtihād therefore leads to a historically-limited instance of objectivity; the best objectivity that can be had within our human limitations. And when each jurist performs this through time, we get a historical series of objectivities, each presumably better than that which preceded it.

Farhat J. Ziadeh’s article is on the issue of ʿadāla (“justice” or “justness”), the quality of a witness being considered reliable and trustworthy by an Islamic court. He mentions the interesting anecdote of a man who refused to pay the voluntary separation gift that a man owes to his divorced wife. The judge who presided over the separation later refused to accept the man as a reliable witness in a different case because the man had refused to be charitable and God-fearing in the previous case. Another interesting anecdote is that al-Ḥakam I (d. 822 CE), a ruler of Umayyad Spain, was rejected as a reliable witness by a judge that he himself had appointed.

Ziadeh argues that Islam led to a transformation of the Arab ideals of virtue. In the pre-Islamic era, virtue was a warrior’s courage, a rich person’s generosity, and the dedication to keeping one’s word even at the cost of losing a loved one. But in the civilized atmosphere of the Islamic city, the virtues were those qualities that enabled the law to function properly.

The fifth article is by David F. Forte, a law professor at Cleveland State University. He tries to clarify the Islamic principles of property rights by studying how Islamic law deals with the issue of lost property. He concludes that Islamic law is more concerned with the rights of a property owner than the English common law.

George Makdisi’s article is going to be of the most interest to Western readers. He defends his thesis, that he has defended in many other places, that Islam created the concepts of professor, doctoral dissertation and academic freedom.

Since Islam lacks an ecclesiastical hierarchy that can decide issues of orthodoxy, the only way to ensure arrival at consensus in a legitimate way was to adopt academic freedom. A legitimate fatwā in Islam is one that is given by a professor who enjoys perfect academic freedom to agree or disagree with anyone else. The West had no need for academic freedom because the true authorities on matters of religious doctrine were the bishops in unity with the pope. Islam, lacking such authorities, was forced to adopt a rational way of arriving at authoritative religious rulings in their absence. And the solution was the academic freedom of the professor or muftī. When all the professors, in perfect freedom and autonomy, agreed on a particular ruling, that meant that the ruling was authoritative.

Orthodoxy in Christianity was determined by the ecclesiastical hierarchy. Orthodoxy in Islam was determined by the autonomous consensus of the professors, just as in modern science. In science a particular theory can only become “orthodox” when all eligible scientists study it and arrive at a consensus about its reasonableness and likelihood of correctness. Islam was forced to create this “scientific method” of arriving at consensus due to suffering the same situation that science suffers: there is no higher authority than the scholars, researchers and professors themselves to help them come to legitimate conclusions on the issues under question.

The West took many centuries to digest the imported Islamic concepts of professor and academic freedom. Western professors in the 13th century still lacked the academic freedom that Islamic professors had enjoyed since at least the 8th century. In Christianity, dissent among the professors was considered an evil that led to heresy. In Islam, dissent was the most important way of ensuring orthodoxy, which is why it developed a vast literature of dissent where the disagreements of the professors were recorded.

The idea of a professor freely expressing dissenting opinions had no place in Western civilization until the power of the Church weakened and the professors were able to acquire some autonomy from it.

John Makdisi’s article focuses on the possible Islamic influences on the English common law. His article is an earlier version of his famous 1999 article “The Islamic Origins of the Common Law” (which can be downloaded here). He argues that the assize of novel disseisin, a crucial aspect of the development of the common law established by Henry II in the wake of the Assize of Clarendon of 1166, may have had an Islamic origin, and studies the historical context in which this Islamic influence may have been acquired.

The last four articles by William Ballantyne, Ian Edge, Ann Mayer and David Pearl respectively deal with the issue of the application and integration of the Sharia in modern Islamic states. I discuss the contents of some of these articles in my essay Solving the Problem of the Codification of the Sharia.

Solving the Problem of the Codification of the Sharia

Kau Ban Mosque in Agra, Uttar Pradesh, India.

Abstract

I argue that the existence of an inherent contradiction between the Islamic Sharia and codification is imaginary and caused by paying insufficient attention to the nature of the workings of the Sharia and how it relates to the state. So far codification has meant the imposition of the hegemony of the state over the Islamic legal process. It is possible to create a legitimate and authoritative Sharia code by reversing this process: imbibing the ideals of the Sharia into the legislature and making its principles the governing doctrines on how the process of codification should be carried out.

In law, codification is the process of collecting legal rulings into a legal code or book of law that is then made the official source of law for a jurisdiction, for example for a town or country. Traditional Islamic law until the 19th century was alien to codification because codification was a bureaucratic need that was only recognized in that century after the influence of Western legal systems. The first important attempt at the codification of Islamic law was made in British-controlled India.1 The British considered the Islamic practice of law as “as an uncontrollable and corrupted mass of individual juristic opinion” according to Wael Hallaq.2 Hallaq considers the British attempt at codification as an outgrowth of colonialism. Islamic law was severed from its roots in order to fit in with British ideals of how the law should function.

The Ottoman Mecelle of 1876 was the first attempt by a sovereign Islamic state to codify Islamic law.3 Samy Ayoub considers the Mecella a legitimate outgrowth of the Hanafi legal system of the Ottoman Empire,4 while Wael Hallaq considers it a state imposition that by steps almost totally replaced the Sharia.5

The essence of Islamic jurisprudence was the constant re-analysis of the sources of Islamic law in order derive new rulings (fatwās) based on the individual and autonomous research of a jurist (muftī). According to George Makdisi, a jurist could not even rely on his previous rulings to create new rulings; this would have been considered an unacceptable breach of the jurist’s duty to constantly re-analyze the sources of Islamic law (the Quran, the sunna, the consensus of past scholars, and Medinan ʿamal in the case of the Mālikī school).6

Islam gave rise to the concepts of academic freedom and the doctoral dissertation, only adopted by the West after centuries of conflict between the Church and the universities. Since Islam has no official ecclesiastical hierarchy, each professor of the law (jurist or muftī) had to be an independent authority who could profess independent, autonomous opinions on matters of law. The very term “professor” comes from Islam: a professor is someone who has studied the law sufficiently with a master and who has produced a taʿlīqa (doctoral dissertation), an original thesis that proves his competence as an independent thinker.

Islam’s muftīs were the world’s first professors. Islam, however, never extended the concept of the professor beyond the field of Islamic law. It was Western civilization that took this step and created the concept of “professor” as an independent authority on any field of knowledge.

Since Islam lacks an ecclesiastical hierarchy that can decide issues of orthodoxy, the only way to ensure arrival at consensus in a legitimate way was to adopt academic freedom. A legitimate fatwā in Islam is one that is given by a professor who enjoys perfect academic freedom to agree or disagree with anyone else. The West had no need for academic freedom because the true authorities on matters of religious doctrine were the bishops in unity with the pope. Islam, lacking such authorities, was forced to adopt a rational way of arriving at authoritative religious rulings in their absence. And the solution was the academic freedom of the professor or muftī. When all the professors, in perfect freedom and autonomy, agreed on a particular ruling, that meant that the ruling was authoritative.

Orthodoxy in Christianity was determined by the ecclesiastical hierarchy. Orthodoxy in Islam was determined by the autonomous consensus of the professors, just as in modern science. In science a particular theory can only become “orthodox” when all eligible scientists study it and arrive at a consensus about its reasonableness and likelihood of correctness. Islam was forced to create this “scientific method” of arriving at consensus due to suffering the same situation that science suffers: there is no higher authority than the scholars, researchers and professors themselves to help them come to legitimate conclusions on the issues under question.

From the 19th century onward, many Muslim states adopted Western legal codes as part of their process of modernization. While many of these codes purport to respect the Sharia or to consider it a primary source of law, the reality is that they are forced to break the very foundation of the Sharia in their efforts to codify it.

The Sharia functions, like science, on the basis of the autonomous consensus of the professors. Governments, however, want stable legal codes that they can control. The call for the Islamization of the law in various Muslim countries has always ran into the contradiction between the Sharia’s system of autonomous consensus and the Western legal practice of creating legal codes.7 A Pakistani court adopted the punishment of a hundred lashes for married individuals found guilty of zinā (fornication). Traditional religious scholars found this an unacceptable breach of Islamic law since the traditional punishment for such individuals is stoning to death.8 The government of President Zia ul Haq, in order to maintain the support of the scholars, called for a rehearing of the case and changed the composition of the court to include traditionalist scholars. The result was that the court arrived at the traditional ruling of stoning to death.9

From the Sharia perspective, the artificial creation of a new ruling such as this that becomes the authoritative law of the land is a miscarriage of jurisprudence, since it destroys the Sharia’s reliance on the autonomous consensus of the professors of the law and replaces it with a government-elected clerical regime. The new legal code abolishes the academic freedom of the professors of the law and replaces it with the government’s monopoly power over the courts.

Professor Ann Elizabeth Mayer, in relation to the conflict between the Sharia and codification, proposes the establishment of a new doctrine toward it that somehow makes it accommodate codification, while admitting that it will be a delicate and painful process. But rather than seeking to abolish the Sharia’s autonomous foundations in favor of rigid codification, a synthesis is possible that embraces both modern democratic ideals of legislation and the Sharia’s autonomous nature.

The synthesis of the Sharia and legal codification

By understanding the workings of the Sharia, translating its ideals to the realm of modern legislation becomes a somewhat simple exercise. The “Islamization” problem of the modern Islamic state is not with Islam or secularism, but with the way the state attempts to enforce its hegemony over the communities it governs, as Noah Salomon argues.10 Anver M. Emon argues that critiques of the codification of Islamic law are often based on an ideology of the way the state functions or should function, rather than on an inherent contradiction between Islamic law and codification.11 I believe that it is possible to envision a state legislature that can fully represent the ideals of the Sharia while working within a codified system of law.

Authoritative Sharia rulings demand that the lawmaking authority should be made up of professors of the law that enjoy the following characteristics:

  • The attainment of formal education under the masters of the law and the presentation of an original doctoral thesis that proves their competence to profess independent rulings.
  • The academic freedom to profess opinions arrived at through personal, independent research that is not in any way influenced or controlled by a higher authority.

What an Islamic state can do is to bring together all willing professors of the law into a legislative council, for a example a house of parliament, where they can debate aspects of the law and pass rulings. Such a council, rather than being made up of elected professors, should automatically admit all professors who have proven their competence in their field (for example by getting their doctoral degree). This allows for the creation of a lawmaking body that is made up of all eligible professors in the land, just as in the traditional practice of Sharia lawmaking where every professor had the right to participate in lawmaking. Government interference with the admission process of professors into the legislative body will naturally corrupt its essential essence of autonomy, since the government will be able to support the laws it desires by choosing to admit only the professors that support the state.

In many Arab countries top religious officials are selected by the state. George Washington University Professor Nathan J. Brown describes this type of control over religious institutions as both imposing and clumsy.12 The control of the Egyptian military regime over al-Azhar University has lead to renowned scholars like Yusuf al-Qaradawi describing government-elected jurists like Dr. Ali Gomaa as “the jurist of the soldiers.”13 It is clear that state interference with Islamic lawmaking is self-defeating: A state-controlled process cannot achieve the all-important aspect of legitimacy that traditional Islamic law enjoys. In this way state laws enjoy neither legitimacy nor the widespread support of the Muslim populace.

Speaking of our imagined “council of the professors of the law”: When disagreements arise, the lawmaking body can decide matters based on the votes cast by the professors. The ruling that gets the most votes is the one that is integrated into the legal code. Dissenting opinions will also be integrated into the code, so that citizens can be given the choice to act by the dissenting opinion where this is feasible, similar to the way that the four-school courts of the Mamlūks functioned.14

It would be logistically unfeasible to convene all of the law professors, who may number in the many thousands, into a single legislative house. Instead, the legislative body can work by issuing calls for fatwās from all of the professors without requiring them to convene. The legislative body can then collate all of the fatwās and determine which ruling has the most support.

And in order to protect the integrity of the process, a legislative council can be elected by the professors themselves that oversees the process of issuing fatwā calls, collating fatwās and integrating them into the legal code.

Each professor should have the right to propose a change to the legal code. Whenever a change to the legal code is proposed, a new fatwā call can be issued and the professors can either stand by their previous fatwās or issue new ones.

In this way a stable legal code can be created that enjoys the widespread support of the professors of the law and that satisfies the principles of the Sharia: academic freedom, non-exclusivity and changeability (the ability to always go back to the sources and reach new rulings). In this way a living and constantly up-to-date legal code can be created. Since some aspects of the law are highly specialized, each specialization can have its own council and professors.