By Mairaj Syed
Intellectual production in the premodern period was largely structured by belonging to a given, usually explicit and named, school. This was especially the case for theology and law. The school identities comprising these two disciplines of thought lasted many centuries, and at a minimum required a school-bound scholar to affirm a basic set of doctrinal positions. Given that a scholar inherited his school’s legal positions, his intellectual production typically consisted of two things:
- Provide a survey of competing positions ascribed either to the founding fathers of a school or their intellectual descendants
- Analyze the reasons affirming or criticizing them.
Because of the eventual embrace of the legitimacy of a small number of legal schools, this feature of intellectual production was especially the case in Islamic law. Moreover, as a decentralized system that embraced pluralism, Islamic legal discourse was uniquely rationalist, in the sense that a law’s legitimacy was not grounded in human fiat. Jurists had to make an argument for the validity and legitimacy of laws. The genre of legal literature that best captures this aspect of intellectual production is positive law (fiqh). Writing in positive law consists of two analytical components: an enumeration of often competing laws on an issue and an analytical survey of the legal arguments given for them.
In this post, I seek to give a brief overview of the different conceptual approaches to the analysis of the reasons given for legal positions in Islamic legal studies scholarship and an analysis of their deficiencies in the historical investigation of Islamic legal rationality. In a subsequent post, I will introduce my own analytical framework, which I developed in the course of my analysis of the theme of coercion and responsibility in classical Islamic law and theology.
My description of the four conceptual approaches is not meant to suggest that they are wholly instantiated in particular works of secondary scholarship or adopted as a whole by specific authors in their attempts to explain Islamic law’s rationality. In fact, most researchers combine two or more approaches when they attempt to explain the character of Islamic legal justification. Rather, I intend to provide a typology that highlights the internal coherence of the approaches, something akin to a Weberian ideal types of descriptions of Islamic legal reasoning. I have labelled the four approaches in the following way: the four sources approach, legal school essentialism, historical contextualism, and legal functionalism.
The four sources approach assumes that reasons given for laws in positive law discourses will follow the popular four sources description of authority in Islamic law. It expects that reasons given for laws will largely consist of:
- Interpretations of Qurʾān
- Interpretations of hadith
- In the absence of interpretations of Qurʾān or hadith, analogies to laws rooted in them
- If present, citation of consensus.
My research belies this description if it is construed in an exclusive sense: that reasoning will only consist of citation of the four sources. While it is undeniable that interpretation of the Qurʾān and hadith consists of a large part of the argumentation found in positive law, it is not exclusively so, nor uniformly across all topics of law.
My work on coercion and responsibility traces the argumentation in legal discussions involving coercion and responsibility in three areas: defining coercion, coercion’s effect on speech acts (e.g. marriage, divorce, emancipation), and coercion’s effect on causing bodily harm (rape and homicide). I found that the types of justifications that dominated each issue varied considerably. One of the central conceptual issues in coerced speech jurisprudence was whether coercion invalidates a pronouncement of divorce. For example, if ʿAmr threatens Zayd’s life and demands he divorce his wife, and he pronounces the formula of divorce, all legal schools, other than the Ḥanafīs, considered the divorce invalid. One of the central conceptual issues in coerced homicide jurisprudence was how to distribute moral and legal responsibility for a successfully accomplished murder. If ʿAmr threatens Zayd’s life and demands he kills Fūlān, and he does so, between ʿAmr and Zayd, who is responsible for the homicide and at what level? In this case, the Ḥanafīs and Shāfiʿīs recorded internal disagreement. The structure of agreement and disagreement between and within schools had an effect on the strategies of justification adopted by school-bound jurists. Argumentation in coerced speech act jurisprudence, especially among Baghdadi Ḥanafīs, revolved around interpretation of a collection of Qurʾānic verses and hadiths, but is almost entirely absent in coerced harm jurisprudence. But, the citation of legal and moral principles (also referred to as legal canons by some scholars), casuistry, and arguments about the empirical framing of a case abound and is in fact the main method of exploring justifications for laws in coerced homicide, whether in Ḥanafism or Shāfiʿism. Thus, the comparison of reasons given on these two issues of positive law reveal a much greater variety of legal reasoning than the four sources description would have us expect.
Legal school essentialism views the rationality of positive law as the result of a school’s distinctive methodology or values, a type of legal school essentialism. According to this approach, members of a school are not just constrained to support the school’s laws, but also its distinctive values, principles, and methods of reasoning. In some variants of this view, scholars belonging to a school attempt to discover the legal method of the school’s founders, either by subjecting their legal judgments to an inferential analysis or by examining the justifications they gave for their views, or a combination of both methods. A strong version of this view holds that the founder’s legal judgments and justifications can be explained only by a limited set or even a single set of values. Justifications for the founders’ judgments and invention of new laws to cover unprecedented cases will, in this case, be constrained to cite the values representing a legal school’s distinctive philosophical approach. As was the case with the four-source description, the expectations of this view were not confirmed in my analysis. One would expect, for example, that followers of Shāfiʿī (d. 204/820) would be more prone to citing isnād-verified hadiths as proofs of their legal view than their Hanafi counterparts. One of al-Shafiʿī’s main reformist contentions was championing the single-isnād-verified hadith as a source for law that trumps a city’s local practice, consensus, or understanding. But, Shāfiʿīs were no more reliant on hadith as justification for their laws than their Ḥanafī competitors.
Historical contextualism presumes that legal arguments and law generally are responses to political or social problems. This approach assumes legal texts are responses to concrete social or political issues in the writer’s society– ones that causally elicit a response to the issue at hand. It seeks therefore to detect the historical scenario to which the text is a response in the text itself, if there is an explicit mention of such, or in its absence, will attempt to infer that a given legal judgement and/or justification for it must be a response to a known political, social, or economic factor. While this is certainly the case for some of the arguments provided in positive law, for the most part, juristic writing in the post-formative or classical age attained a high degree of technical sophistication. Islamic law was a specialist discourse by scholars for other scholars and oriented to meeting the often abstruse needs of discursive traditions. As such, in many instances, positive law works cannot be reliably read as responses to social and political events in the societies in which they were produced.
Legal functionalism highlights the fact that Islamic law is a legal discourse that plays a certain practical and functional role in societies of a certain level of complexity as an explanation for the character of reasons given for laws in the works of positive law. This view assumes that regardless of time or place, law serves or pursues certain social goods, and in fact it is this functional view of law that allows comparison across cultures. Thus, one cannot understand the law or the reasons given for it, without understanding things like its role as a guarantor of socio-political order, resolver of disputes, and decider of terms of cooperation. This view has indeed highlighted important aspects of Islamic legal rationality, and in a way that makes it conducive to comparison with other systems of legal and moral thought. But, by itself, it loses the sight of the particularity of reasoning found in Islamic legal texts, including jurists’ specific discursive needs borne out of membership in a legal school and competition with scholars from other traditions.
At a basic level, an analytical framework provides a set of expectations or prejudices that give the researcher an initial blueprint for analysis of the phenomenon. It renders the productive insights of past scholars into theoretical form. It does so by doing two things: out of a potentially infinite set, it identifies a particular set of features of a given phenomenon as especially important for the research task and provides an account of the relationships between them. Each of the approaches above does indeed capture important truths of Islamic legal rationality. It is hard to deny that interpretations of scripture are important feature of Islamic positive law, or that membership in a school influences a scholar’s arguments, or that legal discourse is a historical phenomenon, or that it is, in fact, legal discourse as such. Rather, the intellectual task is to develop a framework that can coherently incorporate the insights of each of the approaches above while mitigating their shortcomings. In my next blog post, I provide a summary account of such a framework that I developed in my attempt to make sense of the theological and legal rationality undergirding the theme of coercion and responsibility in Islamic thought. Hopefully, it will be of use to others.