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 , 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 ), 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.