Laws

Revivalism or Reformation: The Reinterpretation of Islamic Law in Modern Times

Since the events of 9/11, there has been much debate in Muslim circles regarding the question of reformation. More specifically, among questions that have been posed are: how can a religion believed to be immutable and constant regulate and serve the needs of a changing community? How can a legal system formulated in the eighth and ninth centuries respond to the requirements of twenty-first century Muslims? Is there a need for reformation in Islam? If so, where should it begin and in which direction should it proceed? These are some of the most challenging questions facing contemporary scholars of Islam.1

Some scholars suggest that reformation should be interwoven with the reexamination of the authenticity and pivotal roles of the sunnah and the hadith,2 while others want to revisit Islamic law as it was formulated in the classical period and reexamine the traditional exegetical literature. This implies that the proposed reformation should be based not only on changing institutions, but also on a reevaluation of traditional sources and hermeneutics.

Islamic Law in the Eighth and Ninth Centuries

With the establishment of the Umayyad dynasty in the seventh century, Muslims began to live under rulers whom many people did not regard as the proper authorities to create the Qur’anic ideal of a just social order. At this time, a definitive group of scholars interested in recording traditions took shape. Many of the Successors (Tabi`un), who are mentioned as having acumen in juridical matters, tried to define and expound Islamic legal doctrine especially on issues pertaining to rituals, inheritance, marriage, divorce, and so on. These early scholars formed the provenance of the fuqaha’, a scholarly elite who specialized in studying the Shari`ah.

Initially, these private individuals were determined to discern God’s intent in order to pronounce a particular ruling. The goal of their endeavor was to to comprehend God’s law in precise terms. Guided by a corpus of precepts, laws, as well as their own independent reasoning, they attempted, especially in the `Abbasid period, to construct a legal edifice by developing and elaborating a system of law binding upon all Muslims. They began to interpret and develop this law by invoking such hermeneutical principles as maslahah (deriving and applying a juridical ruling that is in the public interest), qiyas (analogy), ijtihad (independent reasoning), istihsan (preferring a ruling that a jurist deems the most appropriate under the circumstances), and other innovative interpretive principles in order to respond to the needs of the times and to go beyond the rulings stated in the Qur’an and the sunnah.

Increased legal activities by the fuqaha’ led to the development of legal schools in different parts of the Islamic world. Initially, these schools did not imply a definite organization or a strict uniformity of teachings, for deriving these legal rulings (ahkam) was contingent upon local circumstances and the use of the various hermeneutical tools outlined above. However, this factor led to the emergence of differences between the centers regarding the law.

In Madinah, the sunnah was informed not only by transmitted reports from the Prophet, but also by the community’s agreed-upon practices. Thus, the practices’ local character was partially incorporated into the Madinese concept of prophetic sunnah, meaning that as a source of authority, prophetic sunnah was one among other forms of sunnah. As a matter of fact, preference was frequently given to local practice over reports of prophetic practice, since, as Madinah’s scholars argued, contemporary practice could interpret or supplement earlier precedence. `Abd al-Salam ibn Sa`id Sahnun (d. 840), a prominent Madinan scholar, corroborated this view. Referring to the sunnah’s textual transmission, he states: “Only what is corroborated by practice is followed and considered authoritative.”4 The view that there were different conceptions of the sunnah is further substantiated by a letter written by Ibn al-Muqaffa’ (d. 756), an administrator to Caliph al-Mansur (d. 775), in response to the prevailing diverse applications of Islamic law. According to him, some judges claim to follow the sunnah but, in reality, actually follow their own predilections in the name of the sunnah.5 Evidently, the sunnah was fluid in the early period and did not necessarily reflect prophetic practices.

Kufan jurists saw their interpretations based on reasoning (ra’y) as an equally authoritative factor in deciding a point of law.Abu Hanifah (d. 767) partially incorporated a scholar’s ra’y as an important element in jurisprudence: “I refuse to follow the Followers (Tabi`un) because they were men who practiced ijtihad, and I am a man who practices ijtihad.”6 These jurists also used qiyas (analogy) to extend the prophetic practice and often formulated the lawon rational grounds, as opposed to ruling on the basis of a transmitted practice that purportedly reflected the prophetic practice.7

Thus, Abu Hanifah’s authority was also constructed on how he determined, based on his reasoning, which precedents were the most consonant with what was known of the general outlines of prophetic practice and the circumstances surrounding its implementation.8 It was further predicated on his exercise of juristic reasoning to solve problems that were not explicitly treated in the revelatory texts.

The views of another prominent jurist, Muhammad ibn al-Idris al-Shafi`i (d. 820), differed considerably from those of the Madinan and Kufan jurists, for he contended that the jurist’s personal opinion must arise within, rather than outside of, the prophetic sunnah’s perimeters. Focusing on the famous Qur’anic verse “Obey God and His messenger,” al-Shafi`I further circumscribed the sunnah’s definition, restricting it to a textual and transmitted record of the prophetic practice. The Madinan and Kufan jurists would have to base their rulings on a universal standard, the sunnah as reported in accredited traditions. By insisting on the Prophet’s sunnah, al-Shafi`i nullified the concepts of local practice and arbitrary reasoning. Through his efforts, the four legal schools came to subscribe to a common theory of the sources of law (namely, the Qur’an, tradition, consensus, and analogy).

In contrast to the other schools, the main thesis of the Ahl al-Hadith (People of Tradition) was that traditions transmitted from the Prophet and his Companions superseded both local traditions and those legal injunctions derived independently of the revealed sources. They produced traditions to vindicate their views and based their legal system on the Qur’an and traditions purportedly transmitted from the Prophet. Even though many of these traditions were spurious, the Ahl al-Hadith spurned all forms of reasoning. Some jurists, among them Ahmad ibn Hanbal (d. 855), even claimed that weak traditions were better than human reasoning.

The circumstances that led to the rise of Sunni legal schools also precipitated a concurrent need for a Shi`i legal school.9 The Imams elaborated their understanding of the lawand established paradigmatic precedents for the situations they encountered. Knowledge, interpretation, and articulation of the law meant that the Imams became the main source of religious authority. When the Imams were with them, the Shi`is accepted their pronouncements as the only valid source of law, after the Qur’an and the Prophet’s sunnah.

The Imam was believed to be the law’s final enunciator, occupying the same position as the Prophet himself did. Since the Imam was also believed to have inherited the Prophet’s comprehensive authority, his sunnah was seen as binding as that of the Prophet himself.As Shi`i theology posited the Imam to be divinely appointed (nass), endowed with divinely inspired knowledge (`ilm), and infallible (ma`sum), his authority superseded that of local practice or speculative reasoning. The emergence of a distinct Shi`i legal school should thus be viewed as the result of the Shi`is’ self-understanding of the nature of religious leadership and their confinement of juristic authority to the Imams.

Usage of various hermeneutical devices, exposure to diverse cultural influences, a variegated understanding of the sources, and derivation from and the contents of the sunnah were important factors that precipitated differences between the schools and impacted their rulings. The jurists’ function extended beyond textual interpretation and explication. By invoking such principles as maslahah (enacting the legal understanding that is most conducive to the community’s welfare), analogy, reasoning, and other innovative interpretive devices, they were able to go beyond the texts that had empowered them. By the ninth century, through the efforts of such jurists as al-Shafi`i, the view that the prophetic sunnah’s authority overrode other forms of sunnah was firmly entrenched in the sources of Islamic law. And, due to the jurists’ assiduous efforts, they were recognized as the law’s authoritative interpreters.

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