An Introduction to Islamic Law (4 page)

Be that as it may, the language of the
Quran and
hadith
was not always clear and unequivocal. That is, some terms lent themselves to more than one interpretation. Metaphorical words and overly general language had to be interpreted to yield specific meanings and, to do so, the jurists developed
linguistic rules in order to resolve such problems.

The aim of the reasoning jurist was to establish, for every new case he encountered, a legal norm. The Shari
a recognizes five such norms, intended to order the entire range of human activity and to set human life in good order. The purpose here is not to control or discipline, the two most salient tasks of modern law and the modern state that wields it. Rather, in Muslim thinking, the purpose of the law is to foster living in peace, first with oneself, and second with and in society. The law bids one to do the right thing, to the extent one can and wherever one happens to be. The
state permits and forbids, and when it does the latter, it punishes severely upon infraction. It is not in the least interested in what individuals do outside of its spheres of influence and concern
. Islamic law, on the other hand, has an all-encompassing interest in human acts. It organizes them into various categories ranging from the moral to the legal, without however making conscious distinctions between the moral and the legal. In fact, there are no words in Arabic, the
lingua franca
of the law, for the different notions of moral/legal.

Thus, all acts are regarded as
shar
i
(i.e., subject to the regulation of the Shari
a
and therefore pronounced as law –
“
law
” being a moral-legal commandment), and are categorized according to five norms. The first of these is the category of the
forbidden, which entails
punishment upon commission of an act considered prohibited, whilst the second category, that of the
obligatory, demands punishment upon omission of an act whose performance is regarded as necessary. Breach of contract and theft are infractions falling within the forbidden category, while prayer and payment of pecuniary debts are instances of the obligatory. Both categories require punishment upon non-compliance.

The three remaining categories are the
recommended,
neutral and
disapproved. Helping the poor, consuming particular lawful foods and
unilateral
DIVORCE
by the husband are, respectively, examples of these three categories. Performing the disapproved and not performing the recommended entail no punishment. But if a person is compliant, i.e., by performing a recommended act or refraining from a disapproved act, then he or she will be rewarded, although the reward is assumed to await one in the Hereafter. Since the category of the neutral prescribes neither permission nor prohibition, then neither
reward nor punishment
is involved.

Thus, when the reasoning jurist encounters in the Quran and/or the Sunna a word that has an imperative or a prohibitive form (e.g., “Do” or “Do not do”), he must decide to which of the five legal norms they belong. When someone commands another, telling him “Do this,” should this command be regarded as falling only within the legal value of the
obligatory, or could it also be within that of the
recommended and/or the
indifferent? The very definition of the imperative was itself open to wide disagreement. Some writers saw it as
language demanding of a person that he or she perform a certain act. Others insisted that an element of superiority on the part of the requestor over the person ordered must be present for the expression to qualify as imperative; i.e., an inferior’s language by which he commands his superior cannot be taken as imperative. Against the objection that one can command one’s equal, they argued that such a command, though it may take the imperative form, is merely a metaphoric usage and should not be treated as a command in the real sense
.

These varied interpretive positions do not seem to have offered a satisfactory or consistent solution to the problem of the imperative form. But by the eleventh century, some jurists had succeeded in resolving the issue. They pointed out that the significations of linguistic forms, including the imperative, must be understood in light of what has been established by convention, which is known by means of widespread usage of the
language. Through this pervasive usage, which cannot be falsified, we know from past authorities what the convention is with regard to the meaning of a word, or we know that the Lawgiver has accepted and confirmed the meaning as determined by that convention. Such reported usage also informs us of the existence of any consensus in the community on how these words are to be understood or, in the absence of a consensus, how they were understood by scholarly authorities whose erudition, rectitude and integrity would have prevented them from remaining silent when an error in language was committed
.

So far, we have discussed the first two sources of the law: the Quran and the Sunna of the Prophet. We now turn to the third source,
consensus, which guaranteed not only the infallibility of those legal rulings (or opinions) subject to juristic agreement but also the entire structure of the law. Technically, consensus is defined as the agreement of the community as represented by its highly learned jurists living in a particular age or generation, an agreement that bestows on those rulings or opinions subject to it a conclusive, certain knowledge.

The universal validity of consensus could not be justified by reason, since Muslims held that entire communities or “nations” could go, and indeed had gone, wrong even on important issues. Consensus, therefore, had to be grounded in the
Quran and/or the Sunna. But early attempts by theoreticians to articulate a Quranic basis for consensus failed, since the Quran did not offer evidence bearing directly on it. No less disappointing were the recurrent Prophetic reports which contained virtually nothing to this effect. All that were available were
solitary reports speaking of the impossibility of the community on the whole ever agreeing on an error. “My community shall never agree on a falsehood” and “He who departs from the community ever so slightly would be considered to have abandoned Islam” are fairly representative of the language employed. While a dozen or more of these reports were considered relevant to the issue of consensus’s authority, they gave rise to a problem. Solitary reports are probable and thus cannot prove anything with certainty. Consensus is one of the sources of the law, and must as such be shown to have its basis in nothing short of certain evidence. Otherwise, the whole foundation of the law, and therefore religion, might be subject to doubt.

To solve this quandary, the jurists turned to the reports that are
thematically
, but not verbally, recurrent
. Although solitary, these reports not only are numerous but, despite the variation in their wording, possess in common a single theme, namely, that through divine grace the community as a whole is safeguarded against error. The large number of transmissions, coupled with their leitmotif, transforms these reports into the
thematically
recurrent type, thus yielding certain knowledge of an infallible nature.

Conclusively established as a source of law, consensus ratifies as certain any particular rule that may have been based on probable textual evidence. The reasoning advanced in justification of this doctrine is that if consensus on probable evidence is attained, the evidence cannot be subject to error inasmuch as the community cannot err in the first place. Thus, consensus may be reached on rules that were based on inferential methods of reasoning. However, it is important to note that the cases or rules upon which there was consensus are limited, constituting less than 1 percent of the total body of law. Yet because these cases were subject to this extraordinary instrument, they were deemed especially important.

There remains the question of how consensus is determined to have occurred. Much theoretical discussion was devoted to this issue, but in practice knowledge of the existence of consensus on a
particular case was determined by looking to the past and by observing that the major jurists were unanimous regarding its solution. And, as we have said, such cases were relatively few.

Knowledge of cases subject to consensus was required in order to ensure that the jurist’s reasoning did not lead him to results different from, or contrary to, the established agreement in his school or among the larger community of jurists. The importance of this requirement stems from the fact that consensus bestows certainty upon the cases subject to it, raising them to the level of the unequivocal texts in the
Quran and the
recurrent
hadith
; thus, reopening such settled cases to new solutions would amount to questioning certainty, including conclusive texts in the Quran and the Sunna. Yet, as already noted, the cases determined to be subject to the certainty of consensus remained numerically insignificant as compared to those subject to juristic disagreement. The point remains, however, that
inferential reasoning is legitimate only in two instances, namely, when the case in question had not been subject to consensus (having remained within the genre of juristic disagreement) or when it was entirely new
.

The jurists recognized various types of legal reasoning, some subsumed under the general term
QIYAS
, and others dealt with under such headings as
ISTISLAH
(public interest) and
ISTIHSAN
(juristic preference). We begin with
qiyas
, considered the fourth source of law after consensus.

The characterization of this category as a “source of law” need not imply that it was a material source on the
substance
of which a jurist could draw. Instead, it is a source only insofar as it provides a set of methods
through
which the jurist arrives at legal norms. The most common and prominent of these methods is
analogy. As the archetype of all legal argument,
qiyas
is seen to consist of four elements, namely: (1) the new case requiring a legal solution (i.e., the application of one of the five norms); (2) the original case
that may be found either stated in the revealed texts or sanctioned by consensus; (3) the
RATIO LEGIS
, or the attribute common to both the new and original cases; and (4) the legal norm that is found in the original case and that, owing to the similarity between the two cases, must be transposed to the new case
. The archetypal example of legal analogy is the case of wine. If the jurist is faced with a case involving date-wine, requiring him to decide its status, he looks at the revealed texts only to find that grape-wine was explicitly prohibited by the Quran. The common denominator, the
ratio legis
, is the attribute of
intoxication, in this case found in both drinks. The jurist concludes that, like grape-wine, date-wine is prohibited owing to its inebriating quality.