By Sohail Hanif
My research has centred on unpacking layers of argumentation in works of Islamic law, particularly legal commentaries. As one unpacks these layers, one comes to learn that what actually is ‘law’ is not always clear, and that it is within the arguments that one finds the principles and reasoning for the sake of which legal doctrine is conveyed. The specific layer of argumentation that is of interest to me in this series of blog posts is the social consideration that is intrinsic to Islamic jurisprudential reasoning. Recep Şentürk presents fiqh as a Muslim social science, and, indeed, a science of human behavior is very much a part of what fiqh books convey, albeit in their own concise way.
My work focuses primarily on Central Asian legal commentaries of the Ḥanafī school from what I have called the early classical period – roughly the 5th/11th to the 7th/13th Islamic centuries. Drawing on texts from this period, I will demonstrate some of the complexity in identifying ‘law’ in commentary presentation, while emphasizing that Islamic law is only realized through social institutions. Reading Islamic law while being oblivious to the social organization this law is creating and is dependent upon is not to read Islamic law at all. One is merely perusing decontextualized legal statements.
In this first post, I would like to introduce this discussion by analyzing a short passage from the renowned early classical Ḥanafī commentary work al-Hidāya of al-Marghīnānī (d. 593/1197). The passage I would like to assess deals with usury. In Islamic law, the exchange of gold for gold and silver for silver – a contract termed ṣarf, or money exchange – is considered usurious and sinful unless two conditions are met: (1) exactly the same weight of metal is exchanged (‘equal exchange’), and (2) the exchange takes place at the same time (‘on-the-spot exchange’). If the exchange is gold for silver, then unequal amounts may be exchanged, but the exchange must still be on-the-spot. A discussion that arises in this topic pertains to metal purity: what if the two items are of varying degrees of purity? Now, some impurity was seen as necessary and common in fashioning coins of gold or silver. But there needed to be a separator between acceptable and excessive levels of impurity. Ḥanafīs generally applied the rule that an item is treated in accordance with what is predominant in it (al-akthar lahu ḥukm al-kull), i.e. if it is more than 50% gold, then it is all gold.
To this end, the Bidāyat al-mubtadī, the epitome (mukhtaṣar) on which the Hidāya comments, initiates this discussion by saying:
If silver is predominant in [impure] silver coins then they are treated as [pure] silver. And if gold is predominant in [impure] gold coins then they are treated as [pure] gold. An unequal exchange is prohibited in them just as with pure coins, to the extent that pure coins may not be exchanged for these [impure coins] nor may impure coins be exchanged with each other except in equal weight. Similarly, it is not permitted to return borrowed money with impure coins except by considering [equality in] weight.
In this part of the mukhtaṣar, the author states clearly that impurities are ignored as long as the item is more than 50% gold or silver. The commentary justifies this legal statement with the following explanation:
[This is the rule] because gold and silver items (nuqūd) are not ordinarily free of some impurity (ghishsh), since they cannot be fashioned except by the addition of impurities. Sometimes the impurity is intrinsic, such as in low quality metal, so an [artificial addition of] a small amount of impurities is treated the same as naturally lower quality metal. And [we know that] high quality (jayyid) and low quality (radīʾ) are the same [in the rules of usurious exchange].
The mukhtaṣar then turns to items of excessive impurity: “If impurity is predominant, then they are not treated as silver or gold coins”, which the commentary briefly explains is “due to considering what is predominant (ghālib).”
Finally, the mukhtaṣar comes to the consequence of excessive impurity:
If [a predominantly impure item of gold or silver] is exchanged for the same metal [i.e. something predominantly gold or silver] then this is allowed, as we will consider each type of metal to be an exchange for the opposing type [i.e. the silver in the impure metal is an exchange for an equal amount of silver in the pure metal; and the remaining silver in the pure metal is an exchange for the copper, for example, that dominates in the impure metal, without any need for equality as these are two different metals.]
In explanation, the commentary states:
So [the impure metal] is treated as two separate things: silver and copper, but it is still a contract of ṣarf, thus it is a condition for both items to be exchanged in the same setting (majlis) due to the presence of silver in both items of exchange. So if we stipulate on-the-spot physical exchange (qabḍ) in the silver, then it must be stipulated in the copper, as it cannot be separated from the silver without difficulty.
To this extent the commentary has argued for the consistency and appropriateness of the law of the mukhtaṣar, and why the rule of on-the-spot exchange is maintained when exchanging predominantly pure with predominantly impure metals, but not the rule of equality. But then the commentary takes a fascinating turn by arguing that this point of law should not be followed in Transoxania, where ʿAdlīs and Ghaṭrīfīs represented two predominantly impure forms of silver coin that were in common usage:
Our teachers (mashāyikhunā) – may God have mercy on them – did not issue fatwās to permit [unequal exchange] in ʿĀdālā (pl. of ʿAdlī) and Ghaṭārifa (pl. of Ghaṭrīfī) because they are from the most precious forms of wealth in our lands. Were unequal exchange permitted in them, the door of usury would be opened.
There are several layers of social consideration – each intrinsic to Islamic jurisprudence – that are reflected in this short passage. The first deals with the social consequence of the law. It is clear that according to these teachers, usury is not a mere technicality within trade law, such that, as long as one has technically avoided unequal exchange of what is legally considered to be gold or silver, then one has satisfied this aspect of the law. Rather, there is a social consequence of this law that must also be considered.
It is clear that one of two social considerations have driven this fatwā. The first possibility is that ordinary people, had they been told that they may exchange Ghaṭrīfīs and ʿAdlīs unequally, they might be oblivious to the fact that this is due to the high levels of impurities in these metals. This obliviousness might lead to people exchanging pure silver in unequal quantities, as the nuance between the two is hard to grasp. If this is the angle the teachers have taken, then the law these teachers are promoting is for the ‘law’ of the mukhtaṣar to be concealed for the sake of maintaining the clear distinction between usurious and non-usurious exchange in the minds of people. The comprehensibility of the law in the minds of people is a primary consideration in law-making according to this.
A second possibility – and not mutually exclusive with the former – is that the law promoted by these teachers arises from a reflection on the social ills that are brought about by usury, whereby one party benefits at the expense of the other and money itself becomes a ‘good’ for profiteering. A wide-spread currency must therefore be given the sanctity of the money status offered to gold and silver so that the scourge of usury does not plague the markets. In this case, we can say the ‘law’ of the mukhtaṣar undermines the revealed law prohibiting usury in a context where impure coins are prevalent. As the revealed law is keen to put an end to this exploitative exchange, the law promoted in any context must move to protect markets from this exploitation, in this case by opposing the law of the mukhtaṣar.
Both possibilities highlight the need for careful reflection on the social consequences of the law within jurisprudential training and law-making. What is taken as law in a particular context must pass through this filter of reflection on social consequence before it is taken as law. The identification and comprehension of transmitted school doctrine is thus only part of the journey of law-making.
There is a second layer of social consideration in this passage, and that is in the authority given to these teachers. Islamic law is produced in each time and place by a community of scholars whom we collectively refer to as the madhhab. This group of scholars, in the light of the current passage, can be said to have two clear tasks. The first task is the study of inherited school doctrine. This they must sift through, provide justificatory arguments for, and select the most appropriate doctrines within an abstract framing of argumentation. The second task is to ensure that the law they have selected is appropriate for their time and place, taking into account the consequences of this law and whether these consequences are desirable, especially in the light of the underlying reason for the law, arrived at in the first task.
The passage we have studied presents both of these tasks. First, it presents transmitted school doctrine and justifies it, to show that it stands on strong foundations and is consistent with the rest of the law. Only once this law is fully comprehended, does the passage then show that it is inappropriate for the context of the author, along with a clear reason that shows this point of law should be contradicted in order to retain harmony with the larger law by closing doors to usury.
A third layer of social consideration is the relationship between the author and his future readers. What does the author intend the reader to take away as law? On this point, the author has justified both the law of the mukhtaṣar and the law that stands against the mukhtaṣar. So which law does the reader follow? We may infer that if the circumstances in the reader’s lands are similar to those in the lands of the author, then the author expects the reader to follow the law of the teachers. And if not, then the reader must follow the original law of the mukhtaṣar.
In this, we can note the relationship between the law of the mukhtaṣar (which elsewhere I have termed ‘ancient law’) and the contextualised law of the ‘teachers.’ The law of the mukhtaṣar is the rule. The law of the teachers is an exception that is understood to apply wherever the exceptional situation is found. This explains why texts such as the Hidāya consistently provide justificatory arguments for the law of the mukhtaṣar, and only occasionally speak of contextualized law, as this is what maintains the timeless appeal of their work. Thus, the law of the mukhtaṣar always receives justification, whereas this is not always the case with contextualized law. Conveying the former law, and showing how the reader can extract jurisprudential insights from this law, is the primary objective of such texts. Showing how contextualized law has been formulated is a secondary concern that occurs occasionally to give the reader tools to produce law within a legal community in a specific time and place.
I noted above that reading Islamic law without conceiving of the social organization that this law seeks to create and is dependent upon is not to read Islamic law at all. This, we have seen, is because law regulates human societies, outside of which it exists in abstraction. In this post, I have focused on social considerations on which Islamic law depends – namely, consideration of the social consequence of legal doctrine and the social organization of jurists who must produce this law, both in their relationship with peers in their times and places and their relationships across time as they convey doctrine through authored works. Next time, I will reflect on the social organization that Islamic law seeks to create. I will direct my reflections specifically to ritual worship, as I will argue that rituals, particularly prayer and zakāt, are of the most central social organizations in Islamic law’s vision for society.
 On the encounter between social science and fiqh in the modern Ottoman context, see Recep Şentürk, “Intellectual Dependency: Late Ottoman Intellectuals Between Fiqh and Social Science,” Die Welt des Islam 47, nos. 3/4 (2007): 283-318.
 Al-Marghīnānī, al-Hidāya sharḥ Bidāyat al-mubtadī, ed. Aḥmad Jād (Cairo: Dar al-Ḥadīth, 2008), 119-20.
 See al-Bābartī, al-ʿInāya sharḥ al-Hidāya, 10 vols. (Beirut: Dār al-Fikr, n.d.), 6:263, 7:153.
 Eyyup Kaya argues that the term mashāyikh gained prominence in Ḥanafī circles in 4th/10 century to describe the leading teachers in Iraq, Bukhara, and Balk. See Eyyup Said Kaya, “Continuity and Change in Islamic Law: The Concept of Madhhab and the Dimensions of Legal Disagreement in Ḥanafī Scholarship of the Tenth Century,” in The Islamic School of Law: Evolution, Devolution, and Progress, eds. Peri Bearman, Rudolph Peters and Frank Vogel (Cambridge MA, Harvard Law School, 2005), 26-40.
 This is the meaning given to ‘madhhab’ by George Makdisi, who uses the term guild school to describe the social dimension of the madhhab. Makdisi developed this theory over several publications: George Makdisi, “The Guilds of Law in Medieval European History: An Inquiry into the Origins of the Inns of Court” Cleveland State Law Review 34, no. 3 (1986): 3-18, at 4-7; idem, The Rise of Humanism in Classical Islam and the Christian West (Edinburgh: Edinburgh University Press, 1981), 18-22; idem, “Baghdad, Bologna and Scholasticism” in Centres of Learning: Learning and Location in Pre-Modern Europe and the Near East, eds. Jan Willem Drijvers and Alasdair A. Macdonald (Leiden: Brill, 1995), 141-58; idem, “‘Ṭabaqāt’-Biography: Law and Orthodoxy in Classical Islam” Islamic Studies 32, no. 4 (1993): 371-96.
 Sohail Hanif, “A Theory of Early Classical Ḥanafism: Authority, Rationality and Tradition in the Hidāyah of Burhān al-Dīn ʿAlī ibn Abī Bakr al-Marghīnānī (d. 593/1187)” (DPhil diss., University of Oxford, 2017), 149-53.
 See, for example, the case where the Hidāya argues to defend Abū Ḥanīfa’s position that socks (jawārib) may not be wiped in ritual purification, after which he states that the formal fatwā position is contrary to this, without presentation any justificatory argument: al-Marghīnānī, al-Hidāya, 46-7.
 For further examples of how the Hidāya contrasts mukhtaṣar law with contextualised law, see Sohail Hanif, “A Theory of Early Classical Ḥanafism,” 249-328.
(Suggested Bluebook citation: Sohail Hanif, Social Dependencies of Islamic Law: A View Through the Legal Commentary, Islamic Law Blog (Mar. 17, 2022), https://islamiclaw.blog/2022/03/17/social-dependencies-of-islamic-law-a-view-through-the-legal-commentary/)
(Suggested Chicago citation: Sohail Hanif, “Social Dependencies of Islamic Law: A View Through the Legal Commentary,” Islamic Law Blog, March 17, 2022, https://islamiclaw.blog/2022/03/17/social-dependencies-of-islamic-law-a-view-through-the-legal-commentary/)