By Ovamir Anjum
Murder is afoot, and modernity stands accused. The victim is the Sharīʿa, and the autopsy is grim: temporal lacerations, institutional mutilations, a missing heart. Not merely a murder, academic forensics suggest—an epistemicide. Rigor mortis has already set in, but the time of death is unclear. 1857? 1878? 1949? It depends on the scene of the crime, which is also unclear. India? Turkey? Egypt? Dissertations are being written even now to solve the case. The sharīʿa is (was?) quite important for the 1.8 billion Muslims of the world, so there’s an understandable reluctance to start digging its grave. The naysayers’ reactions range between denial to skepticism to attempts at resuscitation. Where do we turn for a second opinion?
Of all the grounds for doubting the oft-reported death of the sharīʿa, the most compelling may be the fog that occludes the whole affair. Not only is the time and place of the alleged crime unclear, but the victim, in a very real sense, remains unidentified. To say that the sharīʿa is dead is to say what the sharīʿa is—and considering that this most fundamental of questions was never actually resolved by premodern jurists, there is good reason to wonder what it is that has been declared dead. This series of essays is conceived as a set of investigations into the alleged passing of the sharīʿa and the light this notion sheds on the past and future of Islam.
The idea that the sharīʿa may someday cease to function or exist—that it may experience fatigued or go extinct—was not alien to premodern jurists. Sharīʿa matured into the form that we now recognize, around the turn of the fourth century Hijrī. For a leading Shāfiʿī jurist and Ashʿarī theologian like Abū al-Maʿālī al-Juwaynī (d. 478/1085), the problem presented itself in an innovative form. Once opposed and persecuted by a Ḥanafī-Muʿtazilī vizier before rising to great prestige in the court of the legendary vizier Niẓām al-Mulk, Juwaynī was intimately familiar with the fraught intersections of knowledge and power. Written for his patron, Juwaynī’s celebrated and innovative treatise Ghiyāth al-umam fī iltiyāth al-ẓulam (Aid to Communities in Dark Times) explores the institutions of the imamate (supreme Islamic political authority) and legal rulings pertaining to its phases of decline. The foil for this exploration is provided by the familiar theological debate with the Muʿtazilī school about whether it was reason or revelation that constituted the primary source of sharīʿa obligations, and the corresponding tension between divine justice and divine power. The opening salvo may have been the Muʿtazilī al-Kaʿbī’s (d. 319/931) view arguing the impossibility of the extinction of the sharīʿa as a corollary of God’s obligation to do what is best.[1] In his delightful study, Ahmad Ahmad suggests that Juwaynī was the first thinker to theorize the pessimist (or, declinist) position thoroughly.[2] They were opposed by the rationalist Muʿtazilīs from one side and the traditionalist Ḥanbalīs from the other, with Mātūrīdīs forging something of a middle position (this will be discussed in my next essay).
Rarely is the foundational document of a debate also its most sophisticated exposition, and this is one of those occasions. Juwaynī’s highly original treatise has been treated in several modern works, including my own study of its political imaginary, language, and metaphor. Wael Hallaq’s dated but seminal article “Was the Gate of Ijtihad Closed?” explores the related but distinct problem of the so-called closing of the gate of ijtihād (insidād bāb al-ijtihād).[5] It is distinct because although it shares the idea of the end of ijtihād, it potentially signals the completion and flourishing of the sharīʿa rather than its extinction. Incidentally, if my characterization of Juwaynī’s view is correct, based on the four stages of decline discussed below, the phrase khuluww al-zamān ʿan al-sharīʿa (the absence of the sharīʿa from any given time) is closer to Hallaq’s rendering of it as extinction rather than Ahmad’s preference, fatigue.
What unfolds in Juwaynī’s treatise is an exploration of the foundations of Islam not as a theological system but a historical entity, which had to be identified in order to explore how it might be undone. Its decline starts with loss of power and ends with the loss of knowledge. The starting point, namely, the demise of Islamic political order, could have been suggested to the author by historical events, not the least of which was the political fragmentation of the Abbasid caliphate that had set in a century before Juwaynī’s time. Before we press our questions about the nature of sharīʿa’s extinction, let us review Juwaynī’s contribution.
His treatise is divided into three main sections (arkān). The first section establishes the imamate as the arch-obligation of Islam, defending the Sunnī position against a range of alternatives. It also separates definitive and speculative rulings about the imam’s qualifications and functions. The second section contains rulings pertaining to situations where the ruler lacks one or more qualifications, is a usurper, or there is no ruler and people must rely on themselves. The third section is on the recourse to be had in the absence of any ruler. In such a scenario, (i) the guidance falls to the mujtahids (master jurists), and then (ii) transmitters of the madhhab (legal school). Given the ubiquity of scholarly differences, every region should agree on the most knowledgeable scholar; in case of disagreement about who that is, any one of them could be appointed, and in case of conflict, lots could be drawn. Failing that, (iii) non-experts self-regulate by accessing simple primers of law (Juwaynī proceeds to provide a primer); finally, in the absence of any sharīʿa knowledge, (iv) no obligation to follow the law (taklīf) remains. The discussion pertaining to the extinction of the sharīʿa is limited to a rather modest fraction of the book, namely, the first two chapters of the third section. Though that third section is the leanest of the three, Juwaynī declares it the true objective and contribution of the treatise. He is fully aware of the section’s innovative nature, as it explores rulings for a time after the sharīʿa. This futuristic orientation affords a rare peek into the creative imagination, as well as fears and certainties, of a fifth-century (Hijrī) jurist (or any thinker of the period, for that matter):
The discussion of the era that is devoid of scholars just as it is devoid of authoritative imams falls in the third section of the book, and that is the main objective. In this section we will explain our intent in stages and will discover wonderful realities and signs and disclose secrets of the sharīʿa that have not occurred to any mind before, God willing.[7]
Juwaynī, incidentally, is ambiguous about locating his own time in this scheme. On one occasion, he places his contemporary society in the second stage, when a fully legitimate imam with the proper lineage has disappeared but the imamate itself is not fully extinct. He thus implies that a competent non-Qurayshite leader like his own patron the vizier Niẓām al-Mulk might rightfully claim it. On another occasion he places his society in the third stage, in which the true mujtahids are nearly extinct and that only madhhab-transmitters remain (takād hādhihī al-ṣūra tuwāfiq hādha al-zamān wa-ahlah). Juwaynī thus implies that he may be the last mujtahid of his time.[8]
To better understand Juwaynī’s notion of the extinction of the sharīʿa, let us turn to his hierarchy of jurists. For him, after the true imamate has disappeared, the baton of Islam passes on to the scholars (ʿulamā’). At the top of their hierarchy are mujtahids, the best of whom are men like al-Shāfiʿī, the eponym of Juwaynī’s school. There is a curious twist here: the developed schools of these imams of fiqh are superior to the isolated opinions of even the greatest companions of the Prophet such as Abū Bakr and ʿUmar, because the latter lack systematization, or, more precisely, the contextual knowledge, principles, and classification that characterize the madhhabs. Upon the extinction of the mujtahids, we are left with second-tier scholars, madhhab transmitters (naqala al-madhāhib), who too become unavailable in the third stage. People are now left with only general knowledge of the foundations of the sharīʿa. Finally, in the fourth stage of devolution, even these foundations go extinct, leaving only vague knowledge of the existence of God and the Prophet. Juwaynī acknowledges that some of “our associates,” the Ashʿarīs, do not concede that this scenario is even possible, given God’s promise of the preservation of the Qur’ān in 15:9. But Juwaynī finds this unpersuasive, drawing a distinction between the availability of scripture and the availability of scholars who can derive the foundations of an Islamic order. Regardless, he notes, his purpose in this exercise is merely to posit the possibility of the extinction of all knowledge so as to conceptualize the relevant legal judgments. This can be achieved if we imagine an island where the knowledge of the sharīʿa hasn’t reached.
This shift from a temporal to spatial dimension allows Juwaynī, in his own words, to make his real point, which is that people are unable to determine religious rulings by their own reason. This position differs from that of the Muʿtazila. Juwaynī restates his message on this score in the very final passage of the treatise. It concludes with the judgment that there is no way for reason to derive any of the rulings of the sharīʿa, and as such people will have no legal or moral obligation, taklīf, except to believe in God and the Prophet, assuming that knowledge is still available.[9] This formulation reminds us of the Andalusian faylasūf Ibn Tufayl’s (d. 1185/581) philosophical tale written a century later about a human child raised on an uninhabited island. This child, though never properly socialized, is nonetheless able to acquire all metaphysical and moral knowledge through observation and contemplation. Juwaynī could not disagree more.
Meditating on Juwaynī’s underlying philosophy in this treatise, both Ahmad and Hallaq attribute to Juwaynī the view that political authority is overrated in the upkeep of an ordered and meaningful life.[10] In Hallaq’s reading, “the ulama, Juwaynī contends, are in charge of affairs, especially when the Imam has no [means of performing] ijtihad,” or interpretation.[11] This reading is directly contradicted by both the text’s form and content. Why is it that the first section, one on establishing the political arch-obligation, occupies the majority of the treatise (over three-fifths) if scholastic pursuit is the linchpin of Islam? Why is it that when political authority perishes, legal knowledge becomes vulnerable to extinction, and not vice versa? The very deliberate ordering of the treatise suggests rather that the demise of the knowledge of sharīʿa becomes a serious concern precisely because its maintenance requires a legitimate political order. Surely Juwaynī was aware of the political manner by which Islam arose and spread. Furthermore, he includes the shepherding of the right creed, within reasonable limits, as the primary task of Islamic political authority.[12] The first time we encounter the ‘ulamā’ playing a crucial role in Juwaynī’s scheme is in the second section, in the absence of the ideal imam, and when the imam lacks the normally-required quality of ijtihād, on page 310 of our edition (out of total 528).
In this vision of history, the presence of a proper imam (political leader), or deputy of the Prophet, who possesses all the proper attributes and performs the requisite functions is the first and highest stage. With the extinction of the imamate, the scholars of the sharīʿa must step up as the effective guides of the community. The key problem of human life now becomes knowing the right answers to questions about the law, and for that, qualified jurists are indispensable. These questions are not primarily about pragmatic problems of survival, defense, and earthly flourishing; they are about the revealed law, whose proper observance is the determinant of reward in the afterlife and whose knowledge is possessed by its scholars.
Notes:
[1] Ahmad Atif Ahmad, The Fatigue of the Sharīʿa (London: Palgrave Macmillan, 2012), 27–30. See also Racha El Omari, The Theology of Abū l-Qāsim al-Balkhī/ al-Kaʿbī (d. 319/931) (Leiden: Brill, 2016).
[2] Ahmad, The Fatigue of the Sharīʿa.
[3] Ibid., 6, 96.
[4] Ovamir Anjum, “Political Metaphors and Concepts in the Writings of an Eleventh-Century Sunni Scholar, Abū al-Maʿālī al-Juwaynī (419 – 478/1028 – 1085),” Journal of the Royal Asiatic Society 26, no. 1/2 (2016): 7–18. See also Intisar A. Rabb, “Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear,” in Law and Tradition in Classical Islamic Thought, eds. Michael Cook et al. (New York: Palgrave Macmillan, 2013); Sohaira Siddiqui, Law and Politics under the Abbasids: An Intellectual Portrait of Al-Juwayni (Cambridge: Cambridge University Press, 2019); and, Mona Hassan, Longing for the Lost Caliphate: A Transregional History (Princeton University Press, 2016).
[5] Wael B. Hallaq, “Was the Gate of Ijtihad Closed?,” International Journal of Middle East Studies 16, no. 1 (1984): 3–41.
[6] Abū al-Ma’alī al-Juwaynī, Ghiyāth al-umam fī ‘ltiyāth al-ẓulam, ed. ‘Abd al-‘Azīm al-Dīb (Qatar, [1401]), 391.
[7] Juwaynī, Ghiyāth al-umam, 390.
[8] Juwaynī, Ghiyāth; see ibid. 340 for the former reference, ibid. 417 for the latter.
[9] Ibid., 523–26.
[10] Ahmad, The Fatigue of the Sharīʿa, 12.
[11] Hallaq, “Was the Gate of Ijtihad Closed?,” 14.
[12] Anjum, “Political Metaphors.”
(Suggested Bluebook citation: Ovamir Anjum, The Endangered Sharīʿa, Islamic Law Blog (Jan. 4, 2024), https://islamiclaw.blog/2024/01/04/the-endangered-shari%ca%bfa/)
(Suggested Chicago citation: Ovamir Anjum, “The Endangered Sharīʿa,” Islamic Law Blog, January 4, 2024, https://islamiclaw.blog/2024/01/04/the-endangered-shari%ca%bfa/)