By Omar Farahat
It is common knowledge that substantive Islamic laws are constituted of juristic pronouncements (aḥkām) on a wide range of actions, abstentions, and their possible consequences. Internally, we might say, these pronouncements of the jurists assume a sense of authority given their relation to divine revelation. The pronouncements or rulings of the jurists are designed as assessments of types of action that are made on the basis of engagement with revelation. Externally, however, we might ask how Islamic legal theory justifies the duty of non-jurists to obey the rulings of the jurists. The question seems at some level to be so obvious as to not to deserve much analysis: Muslims obey the jurists because they are knowledgeable about divine revelation, and Muslims, by definition, want to follow divine revelation. The fact that juristic rulings in Islamic law are claims to knowledge is widely accepted by contemporary scholars of Islamic law.[1] The conception of law as knowledge, however, combined with the historical process of increased organization of the schools of law has led to what appears as a formalization of the epistemic nature of the jurist’s authority into a more institutional form of authority, akin to what some legal philosophers call a robust authority.
In a “robust” conception of authority, one has a reason to obey a source of authority because of what it is, not because it is pointing to a separate reason for action that we could verify independently of such figures of authority. For instance, the ordinances of a political sovereign are a robust source of authority, whereas jurisconsults declaring and elucidating such ordinances and their likely effects are only authoritative in the epistemic sense. In a sense, a robust type of authority is institutionalized authority, whereas a purely epistemic authority is contingent upon conveying the message of an authority residing outside of it. The perceived transformation of juristic authority in classical legal theory from a purely epistemic to a more formalized form has led to some criticism in modern scholarship.[2] The gist of these criticisms is that arguing that the jurists must be followed because of their status as jurists compromises the autonomy of their followers and contravenes the spirit of free moral exploration of one’s faith. In this post, I wish to highlight the arguments for the duty to obey the jurists from the prominent jurist and theologian Abū Bakr al-Bāqillānī who offered a nuanced set of arguments on this question. Bāqillānī’s arguments, I maintain, were aimed to uphold a balance between the jurist’s knowledge-based authority and the practical conditions that makes following them in a “robust” way rational.
In al-Taqrīb wa l-irshād, Bāqillānī explained that “a non-jurist must follow the jurists and rely on their pronouncements.”[3] This was a fairly standard position in classical jurisprudence, and this particular formulation suggests that juristic pronouncements were robust reasons for action. Laypersons, in Bāqillānī’s suggestion, have reasons to follow a juristic ruling on any given matter of conduct to the exclusion of their own assessment of what might be the proper course of conduct. A significant caveat to what appears like a robust hierarchy of authority can be found in the argument that the duty of laypersons to follow one of the available juristic opinions is not a duty emerging from the status of jurists and non-jurist per se, but rather from the fact that proper methods were used to attain these rulings: “the rulings of a school of law (madhhab) must be upheld [only] to the extent they are supported by proper evidence (adilla), not because of who pronounced them.”[4] Making this point even more forcefully, Bāqillānī claimed: “it is possible to know the validity of an opinion or ruling based on its evidence (dalīlihi) and argumentation (ḥujjatihi) with no need to realize that this opinion was advanced or even known by anyone else […] which shows us that knowledge of a ruling does not rely on its endorsement by a school of law, but only by knowledge of its justifications.”[5] The most fundamental element of juristic authority, therefore, is the use of proper methods, not their status as jurists.
Things, however, were not that simple. Even though juristic pronouncements were conceived as an exercise in argumentation on the basis of divine revelation using accepted methods, Bāqillānī still found it imperative for laypersons as a whole to seek guidance in one of the numerous available juristic opinions to determine their conduct on any given matter. The key to explaining this difference between the epistemic nature of the ruling and the robust nature of the layperson’s duty to obey the jurists, for Bāqillānī, lies the idea of a societal obligation (farḍ kifāya) to seek knowledge of legal rulings: “… the knowledge of the assessments of actions, which are known through the methods of jurisprudence, as well as the justifications for the legal rulings, is a duty upon society at large [represented by the jurists], and not upon individuals. The non-jurists ought [only] follow the opinions of the jurists.”[6] The duty upon society, represented by a portion of it, (i.e. farḍ kifāya) to know the divine law, it must be noted, cannot in itself be a legal norm in the ordinary sense. If it were, it would be open to juristic disagreement, which would mean that it is, at least in theory, conceivable for no one to know the law. This must be a supra-legal, perhaps a “constitutional” norm in some sense, that is integral to the very nature of the community that Bāqillānī envisions would be governed by Islamic law and live according to the sharīʿa.
Another important aspect of this argument is that Bāqillānī spoke only of the commoners’ duty to follow the jurists in terms of exemption from the general duty to know the law. The subjects of law are not so much obligated to follow the jurists as they are permitted to use their knowledge to their advantage in their quest to know the law. This is presented as plainly superior to the alternative: for everyone to have to study revealed texts, legal methodologies, and a whole host of other disciplines to attain legal knowledge. This logic of exemption from a more drastic obligation is usually inverted in modern discussions of juristic authority in Islam. What Bāqillānī conceived of as a service to the community is seen as a mere imposition of authority, and the return of law-making authority to all Muslims seen as a form of liberation. Bāqillānī’s theory of duty to obey as an exemption from a greater duty tells us something valuable about the conception of juristic authority in classical Islam. It was assumed that the jurists were operating within a legal system characterized by a certain unity of moral purpose of all subjects, jurists included, in their motivation to follow a source of authority external to them. This of course does not negate the possibility of conflicting private interests, but assumes an overarching moral aim shared among society as a whole. Whereas the modern arguments for the privatization of rulemaking in Islamic law are mainly driven by concerns about the legitimacy of this arrangement, Bāqillānī was mainly concerned with how to justify a public system of rule-making and adjudication that takes into account an underlying commitment to follow revelation.
The concept of societal obligation (farḍ kifāya) to know legal rulings, therefore, is crucial to understanding Bāqillānī’s theory of juristic authority. This concept was advanced as a fundamental constitutional principle that results in a duty to follow or “emulate” juristic rulings (taqlīd) that is both conditional and relative. It is conditional because, at the level of theory, following juristic opinions presupposes some lack of knowledge. The designation of non-jurists as commoners (ʿawām) is designed to establish that, by definition, they lack the epistemic conditions required to give rulings based on divine revelation, and, therefore, are permitted/required to follow juristic rulings. The gradual and relative nature of the permission/duty to follow juristic rulings becomes clear in Bāqillānī’s treatment of whether jurists are bound by the opinions of other jurists: “knowledge of norms is incumbent upon scholars, but not commoners, and if some scholars achieve such knowledge, it stops being incumbent upon the others, except for matters that they encounter directly, in which case following another becomes prohibited upon a jurist with full expertise (kamāli ālatihi).”[7] This passage shows that Bāqillānī did not think of reason-giving and reason-receiving as a pure dichotomy, but rather as a range of possibilities. Jurists must exercise their own reasoning in relation to cases presented to them by commoners but may rely on other jurists’ opinions to the extent that they may lack such knowledge themselves. It all depends on the level of expertise and ability to apply the proper methodologies in the study of revelation.
Another way in which this authority was importantly conditional is its dependence on the jurist’s moral standing. Whereas the commoners did not have to revisit the rules’ justification for them to have a reason to follow them, jurists were to be followed only to the extent that they are known to possess the proper tools of formulation of legal rulings, based on revelation, and to be just and trustworthy: “what is required of commoners is to consult a jurist known to be learned within the community and morally upright […] and to follow their legal opinion.”[8] Thus, whereas the jurists needed to investigate the soundness of the ruling’s justifications for them to accept or reject such rulings (depending on their seniority and place within the school of law), non-jurists needed to be aware of the moral standing of the jurist individually, but were not expected to investigate the soundness of the opinion itself.
In sum, whereas at its core juristic authority is epistemic in the sense that it is presented as knowledge constructed based on an external and recognizable source, it operates vis-à-vis non-experts in a conditionally and relatively “robust” manner. It is conditional because it depends on the jurist’s moral standing and manifests in a relative way among scholars. The idea that knowledge of the law was a societal obligation undertaken by the few on behalf of the many and that following the jurists was more a permission than a duty highlighted the fact that Bāqillānī saw the duty to follow the jurists as a helpful and necessary arrangement for the functioning of society.
Notes:
[1] For example, Knut S. Vikør, Between God and the Sultan : A History of Islamic Law (London : Hurst & Co., 2005), 2–3. See also Wael B. Hallaq, Sharīʻa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 78–83.
[2] Mohammad Fadel, for example, responding in part to Ghazālī’s “formalized” understanding of juristic authority, argued that this idea of following the jurists is contrary to moral autonomy. Mohammad Fadel, “‘Istafti Qalbaka Wa in Aftāka al-Nasu Wa Aftūka’: The Ethical Obligations of the Muqallid between Autonomy and Trust,” Islamic Law in Theory 37 (January 1, 2014). See also Rumee Ahmed, Sharia Compliant: A User’s Guide to Hacking Islamic Law (Stanford: Stanford University Press, 2018).
[3] Muḥammad b. al-Ṭayyib al-Bāqillānī, al-Taqrīb wal-irshād al-ṣaghīr, ed. ʿAbd al-Ḥamīd ʿAlī Abū Zunayd (Beirut: Muʾassasat al-Risāla 1998) vol 1, 306.
[4] Ibid., 305.
[5] Ibid. (emphasis added).
[6] Ibid., 306.
[7] Ibid., 307.
[8] Ibid., 308.