Scholarship in “Plain English”: Joseph Lowry on the First Islamic Legal Theory

By Cem Tecimer

Abstract: Joseph Lowry argues that, much like other legal systems, Islamic legal systems, since their formative periods, grappled with the question of how to reconcile competing jurisprudential arguments and a commitment to orderly jurisprudence. Lowry situates Ibn al-Muqaffa‘’s works in this context, arguing that he was among the earlier jurists with a commitment to reorganizing then-existing jurisprudence by coming up with a distinction between settled law and law that required interpretation.

Source: The First Islamic Legal Theory: Ibn al-Muqaffa‘ on Interpretation, Authority, and the Structure of the Law 128(1) Journal of the American Oriental Society 25-40 (2008)


In this article, Lowry analyzes the Risāla fi-l-sahāba by ‘Abdallāh Ibn al-Muqaffa‘ (d. ca. 757). Lowry described Ibn al-Muqaffa‘ as the first Islamic theorist, as he “was the first Muslim legal thinker to draw a careful and deliberate distinction between a sphere of law that is settled and unproblematic and a sphere of law that requires interpretation” (p. 25). He distinguishes a sphere that comprises “those rules that are … so fundamental that the caliph has no discretion in regard to whether to implement them,” from a second sphere “in which the caliph has a wide interpretive license” (p. 31). Fundamental obligations such as prayer, fasting, etc., fall under the former category, whereas there are three broad categories for the latter (i.e., caliphal discretion): (1) personal judgment; (2) administration; and (3) political authority. Military strategy, collection and distribution of war spoils, appointment and removal of officials, legal interpretation where there exists no precedent, implementation of penal law, and of legal decisions according to the Qurʾān and the Sunna, waging war and concluding truces, and accepting and disbursing property on the Muslims’ behalf are seven instantiations of caliphal authority mentioned by Ibn al-Muqaffa‘.

Further, as regards the area of law in which interpretation and thus discretion is permitted, the caliph, according to Ibn al-Muqaffa‘, should solve the problem of legal, doctrinal diversity. There are three major reasons for diversity: (1) regionally organized scholars belittle the opinions of each other; (2) the rulings of the Umayyad are wrongly regarded as sunna; and (3) individual scholars rely too much on their personal reasoning (ra’y). The caliph should address this problem by making sure that he “review[s] each question and implement[s] his considered opinion” (p. 36). Legal disagreement stemming from ambiguous precedents should be resolved by considerations of equity as well as attention to views that are more entitled to be correct; whereas legal disagreement stemming from “excessive devotion to analogizing” should be addressed by reminding oneself that analogies should not be made for their own sake, bur rather “to achieve a good result” (p. 37).

Lowry finally notes that the Risāla, which its author wrote for the Abbasid caliph back then, was a product of its times, of “the exigencies of imperial administration:” (1) regional diversity among scholars was a threat to the Abbasid caliph; (2) “[t]he appeal to Umayyad practice [was] politically inappropriate”; and (3) granting individual jurists too much discretion was dangerous to central political authority (p. 37).

Key terms:

  • Islamic law: how the Risāla is evidence to the fact that “disorderly jurisprudence” was a concern of even the formative periods of Islamic law (p. 25); how Islamic law could be conceived as a body of law that on the one hand requires interpretation and admits of no interpretation on the other (p. 25, 27); how Islamic law allows persons to disavow an impious ruler – as was the justification of the assuming of power by the Abbasid dynasty from the Umayyads – and therefore, how it is important to circumscribe the areas in which the caliph/ruler enjoy discretion and his choices must be respected (p. 30); how the first part of Islamic law in which the caliph enjoys no discretion comprises “prayer, fasting, pilgrimage, and avoidance of the general category of the unlawful”, that is, “fundamental obligations (‘azā’im al-farā’id)” (p. 31); how the second and latter part comprises a vast area in which the caliph cannot be questioned as he enjoys wide discretion – mainly, personal judgment, administrative and political matters such as military strategy, implementation of penal law, appointment and removal of officials, etc. (see p. 31 for all seven instantiations of caliphal discretion); how contradictory rulings (ikhtilāf al-ahkām) are due to three primary reasons: (1) groups of regional scholars belittling one another, (2) excessive reliance on a jurist’s personal authority (ra’y), and (3) wrongly perceiving Umayyad rules as sunna (p. 36); how contradictory doctrine can manifest itself in two ways: (1) ambiguous precedents; or (2) extreme and “excessive devotion to analogizing”; and how each should be resolved by the caliph, respectively, by (1) embracing the best and most equitable precedent; and (2) by remembering that analogizing should not be done for the sake of it (laysa ‘ayn al-qiyās yabghī), and that analogies should not be taken too far from the original situation to which the analogy is being made (ibtidā’ amr ‘alā ghayr mithālihi) (p. 37); how Ibn al-Muqaffa‘’s conception of Islamic law as embracing a portion closed and a portion open to interpretation with broad discretion to the caliph was inevitable a product of its times – a result of: (1) wishing to end the appeal to the past Umayyad dynasty by empowering the Abbasid caliphate; (2) fear of regional and varying interpretations by jurists that was “a potential ideological basis for local resistance”; and (3) fear of giving too much interpretive authority to individual jurists who could challenge central authority (p. 37).
  • hadīth: how the saying and deeds of the Prophet downgraded the authority of the caliphs (p. 39).
  • ‘aql: how the dīn and ‘aql dichotomy is used by Ibn al-Muqaffa‘ to explain his dichotomous conception of Islamic law (areas open to interpretation vs. areas not open to interpretation) and how dīn is here to aid human minds (especially be setting a body of law closed to interpretation) because human minds cannot grasp everything with their intellect (p. 33); how all other matters (i.e. matters other than dīn) which includes political authority (amr), administration (tadbīr) are part of the caliph’s discretion (ra’y) (p. 33).
  • hudūd: how “implementation of penal law and other rulings (imdā’ al-hudūd/ahkām)” is among the part of Islamic law in which the caliph as discretionary authority (p. 38, figure 3).
  • Islamic constitutional law: how the caliph, under al-Muqaffa‘’s construction, enjoys “legislative and jurisdictional reach” (p. 28) [cf. Feldman, Law, Islam, and the Future of the Middle East (arguing that Islam is embraces separation of powers as the jurist is tasked with interpretation of law, whereas the ruler only applies/executes it)].
  • fiqh: how in classical usūl al-fiqh terms, jurists had the authority to interpret divine law (ijtihād) and how muqallids, that is, followers of established interpreters (mujtahids), followed these authoritative interpretations (p. 28).

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