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.