By Mairaj Syed
Although ethical thought is found in virtually every literary genre of Islamic civilization, it finds the most explicit articulation in works of adab (belles-lettres), akhlāq (virtue ethics), and fiqh (positive law).[1] There are a number of distinguishing features that make fiqh an rich repository of moral thought, especially useful for the types of moral and legal reasoning prevalent in formulating policy and making decisions in formal institutions.
The first distinguishing feature of fiqh is the sheer volume of material produced by scholars writing within the discipline. Fiqh has a long and varied history. The four main Sunnī schools as well as the Shīʿī tradition have a fairly continuous history of intellectual production for close to a millennium. This intellectual production is characterized by geographical diversity. From Morocco and Sub-Saharan Africa in the West to Malaysia and Indonesia in the East, everywhere Muslim societies of some complexity emerged, Muslims produced fiqh, and fiqh-related literature, such as fatwās (advisory opinions). The decentralized nature of intellectual production in Islamic law results in the creation of a moral literature which records a great plurality of views and their associated rationality. Thus, ethicists and historians of ethics have a large and varied repository of moral thought at hand for inspiration, guidance, and analysis.
The second distinguishing feature is fiqh’s relative proximity to the ethical problems that animate the social life of a community, unlike the largely abstract and theoretical discussions of ethical value found in kalām (theology) and uṣūl al-fiqh (legal theory), and to a lesser extent, the discourses on vices and virtues found in akhlāq. Fiqh’s closeness to the community’s social life is evident in its application in formal institutional settings even in the premodern period: it was applied in courts, and at least in the Ottoman Empire, it often provided normative backing to state policy. It was also the literature muftis relied on to respond to the queries directed to them by judges and the lay community.
Because of its form as a legal discourse, and its affiliation with official bodies, moral reasoning that acknowledged and balanced the conflict of goods and values inherent in ethical and legal problems proliferated in the discipline. Most moral or legal problems of even a medium level difficulty present competing and clashing goods and values that can be reasonably balanced in a variety of incommensurable ways and Islamic law historically has recognized the legitimacy this normative plurality. Muslim jurists articulated the goods and values at stake in these problems in the form of principles, also called legal canons or maxims (qawāʿid) by many scholars of Islamic law.[2] When weighing the various rulings for a case, the argumentation for the respective positions often revolves around a conflict between two or more such canons. For example, in a survey of the positions on the validity of coerced divorce, in which one ruling held that coercion invalidates a pronouncement, and another that it does not, the arguments for each of the positions reduced to a conflict between the canon that the law may only regard the public performance of a speech act to gauge intent and one that held that a speech act’s validity depended on intent.
Islamic law’s long and pluralistic history, and the wide variety of domains it regulated (commerce, crime, ritual, theology) produced a lush diversity of canons. The following are three examples found in discussions of coercion and responsibility:
- each person’s life deserves equal protection;
- necessity may excuse certain prohibited acts;
- suspend punishment when doubt is present.
These canons are found in every domain of fiqh. Starting in the fourteenth century, jurists collected canons in a single volume abstracted from their uses in the fiqh and fatāwa genres.[3] The most comprehensive modern collection of canons contains about 900 of them, though I think even this is merely a fraction of the canons that exist in the fiqh literature.[4]
The origins of these canons are varied. Some of them stem from scripture. Some of them are subsequently identified, tenuously, as rooted in scripture. The identity of the authors of most is probably lost in history. They seem to emerge from the practical reflection of the jurist or judge as a systematic thinker on the problems facing him. If the articulated canon is useful and attractive it will be retained by subsequent scholars, further refined and even deployed in the analysis of other problems.
The utility of canons to moral and legal reasoning in legal discourses stems from their character as occupying a middle ground between a normative conclusion, which is a concrete recommendation of behavior of some sort (e.g., this type of contract is invalid; that act is forbidden), and a principle that is widely if not globally applicable (e.g., the harm principle; the welfare principle). The former resist easy application to other cases because of their specificity. The latter are applicable to far too many things to provide a decisive way for determining a normative conclusion. The canons thus lie between the two in specificity and generality. They have the virtue of being more applicable than ground-level rules and more determinative than high-level abstractions.
Because of their capacity to succinctly crystalize competing moral goods, canons are uniquely situated for use in formal institutions, which often require decision-making in which competing values exist in tension. These institutions, such as business corporations, government agencies, universities, civil society organizations, to mention a few, have proliferated in the modern age throughout the world. Insofar as these institutions are guided by norms, they will face moral dilemmas and conflicts. For example, university admissions must decide the criteria used to accept students: what are the relative roles of economic class, ethnic identity, and merit? Hospitals are often faced with the dilemma of choosing between prolonging the suffering of a person who will inevitably die versus the duty to save lives. Activist organizations must often decide between advocacy that challenges injustice at a root systemic level versus bargaining for the lower hanging fruit of ameliorative measures. Mosques must decide the extent to which they have a duty to investigate the financial condition of the zakat charity’s recipient and their duty expend the collected zakat funds in an expeditious manner. Under contagion conditions, governments must weigh policies that reduce the transmission of disease against the disastrous economic impact of the self-same restrictions. Historically, both the content of the principles, the type of which are often invoked in moral dilemmas occurring in institutions, and the ways of balancing them, are found in fiqh. Therefore, the fiqh heritage is especially conducive to the types of moral reasoning required by participants in formal institutions.
There are two obstacles to the analysis of canons in ethical and historical investigation. One is simply discovering and collating them. Canons, and in fact all types of justifications for legal and ethical positions, are currently found in a wide variety of sources. Presumably, most of the influential works of fiqh have been edited and published, though there are many commentaries in manuscript form that have yet to receive such attention. While the chapter structure of most fiqh works within a given school provides some predictable order to where a given jurist may consider a topic in detail, finding the guiding principle or rule is not always intuitive. Two cases illustrate the difficulty: discussions on abortion, a much-discussed topic in modern society, can be found not just in the section on homicide, but also in tort or even ṭahāra (ritual purity). Similarly, while the Ḥanafīs devoted independent chapters in their fiqh works to the problem of coercion, the Shāfiʿīs discussed it in their chapters on divorce and homicide. These issues have been mitigated by the publication of these texts on-line and in commercial software in machine searchable form. Yet, even with the publication of many of the most important texts in machine searchable form, the ethicist and historian interested in these principles or even just the types of reasons given for ethical and legal positions in the past must do an extraordinary amount of research to get a full picture of the variety of relevant positions taken in the fiqh heritage and the range of reasons given for them.
What is needed is the mining of all of the arguments found in the fiqh literature. This would involve two things: first, separating the conclusion advocated from the premises used to urge that pronouncement, and second, classifying the premises into different types of argument: scriptural exegesis, casuistry, empirical judgment, citation of canons, etc. Once the arguments and conclusions found in the fiqh works have been mined, one can start organizing the fiqh discourse in ways more conducive to the types of analysis the ethicists and historians of today require. For example, one could easily locate all the various ways in which the idea that “actions ought to be judged by intentions” (in its various guises) was invoked. Or, one may easily locate all of the reasoning relevant to the topic of abortion. Not only would a search produce more accurate results, but would show all of the types of arguments offered on the problem across the different schools, cultures, and time periods. One may then see what Qur’anic verses and hadiths were invoked in which time periods. Or one may trace the development of how the problem of describing the fetus (an empirical issue) changed over time. One can also more accurately gauge the extent to which a canon was deployed in the past, thus giving both a sense of how important it was to past Muslims, and how the application of the canon in disparate circumstances delimited the boundaries of its meaning, and therefore how creative its extension to unprecedented cases would be. The uses of such a tool are endless and will facilitate the incorporation of fiqh norms in many different settings.
In my next and final post, I will share the results of an experiment intended to demonstrate the viability of developing tools to automatically mine the arguments of fiqh texts using natural language processing and machine learning. The experiment will show that given a canon, it is possible to search for and locate instances of its citation even if texts searched are not an exact match for the canon being searched. Rather recent development in natural language processing and machine learning allow one to search for phrases and sentences that are semantically similar and thus allow differences in verb conjugation and substitution of synonyms.
Whereas the scholarly community can address the first obstacle by developing new tools, the second is a theological problem involving how the authority of the canons may be justified. Canons are often the practical products of a jurist contemplating a set of legal problems or systematizing an area of the law. They are often, therefore, at a remove from scripture, the font of authority and legitimacy in Islamic law. Because they are substantive, they are not simply principles of interpretation, either, which is what uṣūl al-fiqh (legal theory) deals with. For these reasons, the theological understanding of their authority is unclear. Their deployment in moral and legal reasoning in a self-conscious way and the acceptance of conclusions based on them by other ethicists and jurists and even the public at large requires a theory of their validity in the aggregate and in particular instantiations.
Notes:
[1] Though not devoted to ethical thought per se, philosophical discussions of the foundations of moral value are found in kalām and uṣūl al-fiqh works.
[2] For an rich yet succinct account of the origins, functions, and theological underpinnings of canons, see: Intisar A. Rabb, “Interpreting Islamic Law through Canons,” in Routledge Handbook of Islamic Law, ed. Ahmad Atif Ahmad Khaled Abou El Fadl, Said Fares Hassan (London and New York: Routledge, 2019).
[3] ibid.
[4] See Muḥammad Ṣidqī ibn Aḥmad Būrnū, al-Wajīz fī īḍāḥ qawāʻid al-fiqh al-kullīyah, al-Ṭabʻah 5. ed. (Bayrūt: Muʾassasat al-Risālah, 1998). For a short description of this work and its place in relation to the canon genre, see Rabb, “Interpreting Islamic Law through Canons.”