Islamic legal theory
by Chibli Mallat
Introducing usul al-fiqh
What theories of law does the Islamic tradition offer? While philosophy tends to be ‘the mother of sciences’ in the West since Plato put it at this meta-level in the disciplines of the intellect, intellectual primacy in Islam finds in law its characteristically dominant discipline as the chief exponent of religion. Within law, the tradition developed a theoretical reflection on legal categories in a self-contained discipline known as usul al-fiqh. The closest western rendition of the genre would be jurisprudence, in its widest Anglo-American acceptation as a theory of law. There is nothing more akin to legal theory in the Islamic tradition than usul. “Although it would be rash to suppose that usul al-fiqh subsumes everything that may be regarded as Muslim legal theory in the broadest possible sense of that term, nonetheless there can be no denying that it constitutes, or came over time to constitute, the mainstream of legal-theoretical thought in Islam.”[1] The prominence of usul is the more so striking since classical Islam, despite the prominence of law, never knew a discipline described as ‘philosophy of law’. At best, such field may just be nascent on the contemporary scene.[2] This is supported in a recent review of relevant modern writings in the Qum (Iran) seminary by one of its active members,[3] and in a more detailed historical-legal investigation that could not identify in the available tradition any coherent discipline which could be considered as ‘philosophy of law’.[4]In contrast, a field recognizable as ‘philosophy’ is undisputed in the classical works by such household names as Avicenna and Averroes,[5] through to less known luminaries of the later ‘Iranian period’, most remarkably Mulla Sadra Shirazi, an exact contemporary of Descartes.[6]
While Islamic philosophy never paid sustained attention to law as subject-matter, the efforts towards a theory of law were plenty from within the legal tradition of Islam. They cohered in the established genre of usul al-fiqh, literally roots, or principles, of law. Usul is not philosophy, since it subject matter is legal, while philosophy is far more encompassing. But it is not philosophy of law either, whether in the tradition of Plato’sLaws, or Kant’s Rechtslehre, or Rawls’ Theory of Justice in the modern period, because the categories that are put to use in the legal derivation are not philosophical categories. Logic, deriving from Aristotle’s translations into Arabic in the classical period, would be the most recognizable kin field. But even logic has its problems: in part, the earlier usul texts predate these translations, but even after the high period of Greek influence on Islamic thought, the organisation or use of the syllogisms in usul does not correspond to the AristotelianOrganon, or Aristotle’s followers in the field, from Farabi in the classical age of Islam to Russell or Wittgenstein, or Hintikka’s formulations in the modern period.
Historically, a founding landmark of the discipline of usul is Muhammad ibn Idris al-Shafi‘i’s Risala. Shafi‘i, the eponym of one of the four schools in mainstream Sunni Islam, is the author of both an extensive treatment of positive law known as al-Umm, and of a systematic, long treatise in usul al-fiqh, which his successive editors through the centuries have considered as the first book in the discipline.[7]
Ibn Khaldun, an authoritative reference if any, confirms Shafi‘i “as the first who wrote in the field of usul”.[8]What we find in the Risala is a mixture of reflections on the relationship between the Qur’an and the Prophetic sayings and deeds as normative texts, interspersed substantive law questions, and ‘jurisprudence’ in the sense of rules and categories of legal derivation. Irrespective of chronology,[9] the repetitive fragments of theRisala could hardly overcome their beginner’s status. Usul al-fiqh, as the discipline jelled into an autonomous genre in Islamic law, has become over the centuries a large and sophisticated field, and the quintessential locus of a ‘theory of Islamic law’.
How does one make sense of usul as legal theory ? Should the reader be interested in usul as it stands in the contemporary world, there is no better way to discover the genre than to study its original texts. [10] One is no longer restricted to the Risala in order to discover the theory of Islamic law as exposed by the Muslim jurists. With the translation of an introductory book on usul by Muhammad Baqer as-Sadr – a leading contemporary jurist, who was executed in his native Iraq in 1980,[11] an excellent tool for the discovery first hand of the theory of Islamic law is now available.[12]
Sadr’s introductory Lessons in Jurisprudence feature four parts: The first part is a general introduction to ‘the characterization of jurisprudence’:[13] just as the subject-matter of physics is ‘nature’, and the subject-matter of grammar is ‘words ’, “the subject matter of the discipline of jurisprudence is the commonly shared arguments in the process of derivation.”[14] This part then underlines the specificity of usul as a discipline: “Shared elements are studied by jurisprudence [usul], whereas the elements particular to each individual question are studied by the discipline of legal understanding [fiqh]”.[15]So, Sadr concludes, “jurisprudence can be defined as the logic of law, because jurisprudence stands to law just as logic stands to human thought in general.”[16]
In the two following sections of his introduction, Sadr discusses usul and fiqh in terms of the first being theory and the second practice (or application), emphasizing the relative autonomy of practice and the complementarity between the two disciplines. The conclusion discusses the development of the concept ofijtihad in history, its earlier rejection by the Shi‘i jurists and then its wholesale embrace as legal reasoning.[17] A distinction is then made between injunctive and declaratory rules, and the five degrees of legal rules as received in the tradition: obligatory, encouraged, prohibited, discouraged, and permissible.[18]
The second part of the Lessons is a foray in a number of aspects of usul under the general heading of ‘Studies’.[19] It is divided in two: ‘substantiating arguments’, and ‘procedural principles’. They have in common the search for the decisive ratio, hujjiyyat al-qat‘, “by which we mean the resolution of a case which leaves no room for doubt”.[20] The difference between substance and procedural arguments appears in the definition of each, and in their respective subdivisions.
‘Substantiating arguments’ are of two types: textual (divine-law) and rational. “1. The first is the divine-law argument [proper]. By it we mean everything that emanates from the lawgiver which has signification for the divine-law ruling and that includes the Noble Book and the Sunna. The latter consists of what an infallible person said or what he did or what he tacitly consented to. 2. The second division is the rational argument, by which we mean the propositions which reason grasps and from which it is possible to derive a divine-law ruling, like the rational proposition which holds that rendering something obligatory requires the rendering of its necessary preliminary obligatory.”[21]
Textual (‘the divine-law’) treatment is extensive, and weaves in logical and linguistic discussions in a detailed manner. It includes use of the word, its operation as ‘sign’, the difference between figurative and literal, syntactic and grammatical considerations, verbal modes, all enmeshed in a number of contrastive propositions and syllogisms. Sadr then discusses non-verbal forms, which forms a small part of the sunna relating to the conduct of the Prophet (and for Shi‘a the Twelve Imams of their tradition) as precedent.[22]
Rational arguments are categories specific to human thought, and operate on a number of connecting modes. Sadr divides them into six ‘connections’, which he discusses in turn: connections arising between one ruling and another, between a ruling and its subject, between a ruling and its dependent object, between a ruling and its necessary preliminaries, connections within a ruling, and finally, a category which he leaves for later discussion, connections between a ruling and external things.[23]
The third part of the book is entitled ‘procedural principles’, [24] which the translator suggests in the glossary could also be rendered as ‘practical’ principles. The leading principles in this part derive from the example of smoking. In the absence of an injunction about smoking, what should its legal status be ? There is no straight answer in the chapter, but a list of principles, all presumably related to ‘procedure’, are adduced to bear on the legal status of the example at hand: a principle of precaution, which errs on the conservative side, against which a principle of doubt about whether a rule is mandatory in the absence of a stated prohibition. A third procedural principle regards ‘non-specific knowledge’, that is a type of knowledge which is too general to assist in a specific, unknown, case. Under this principle, the ‘legal agent’ – the interpreter - must err on the side of the secondary principle, which is the priority of precaution. Finally, a practical principle is a presumption of continuity, which presupposes unity of subject.
The fourth part discusses ‘the conflict of arguments’:[25]
In substantiating principles, the conflict arises from two apparently contradictory statements coming from an authoritative source, or from a textual argument contradicting a rational argument, or from two rational arguments. Sadr offers specific responses: in the first case, the contradiction is only apparent, and context will either force one to yield and be overruled, or to be restricted to an exception to the overall rule. Secondly, if a textual argument contradicts a rational argument, the textual argument prevails. Finally, in case of conflict between two rational arguments, the more convincing would prevail.
In procedural principles, conflict would mainly arise ‘between exemption and the presumption of continuity.’ Here, “presumption of continuity overrules the argument for exemption”.[26]
Finally, conflict could pit substantive and procedural arguments. In a conflict between these two main types of arguments, i.e. a subtantiating argument and a procedural one, ‘indication’ of the substantiating argument makes its adoption presumed over the procedural rule.
In the light of Sadr’s compendium, what sort of ‘theory of law’ does usul stand for ? Usul is a legal genre which is sui generis: both in terms of form of substance, it creates a coherent field depending on a special syntax, is own vocabulary, and its own order of reasons. The internal logic of usul, and the absence of an exact replica in related western disciplines, make it difficult to place it on the intellectual map of comparative law, indeed of human thought generally. To clarify usul’s standing as legal theory, planes of investigation can be further pursued from within the tradition and from without.
Examination within the tradition can be conducted either historically or ‘synthetically’.
Historically, in a brief comparison between Shafi‘i’s Risala and Sadr’s Durus, progress may be appreciated both in the abstraction of words and categories, and in the markedly more sophisticated marshalling of arguments. From a reliance on ‘sources’ of law and their status and arrangement, which appears as the most important systematization of the Risala, to the abstractions offered in the 20th century by writers like Sadr operating on concepts such as rational/substantial/procedural rules and the modes of their contradictions, there is qualitative progress over the same subject-matter, viz. how does one derive a legal rule ?
‘Synthetically’, usul appears as the “most formidable” legal discipline,[27] standing as a genre next to a large array of identifiable fields within a particularly rich legal tradition in Islam, and in the Middle East generally, that includes: law as fiqh, the ascertaining of canonical – sacred – Urtexts (the Qur’an and sunna) and their modes of interpretation, case-law in courts, fatwas and the art of judges and muftis, the practice of notary-publics, and later Restatements known as qawa‘ed fiqhiyya. Within this multi-layered tradition of legal genres,usul appears as the closest to a theory of law.
Appreciation of usul as legal theory can be further enriched by contrasting it with the outside, western tradition: in my own comparative reading of western and Middle eastern texts, logic appears as the closest discipline in the classical age, while jurisprudence, in its English acceptation, would best stand for the discipline of usul in the modern world. This cannot be the end of the matter, however, for the very fact that as genre,usul is perforce unique. Further mutual enrichment follows, if legal theoreticians from outside the Islamic tradition read texts like Sadr’s and reflect on where they would place them within their own order of reasons. For that, the translation by Mottahedeh of Sadr’s usul offers a remarkable tool. Conversely, Islamic legal scholars who, like Sadr, try to perpetuate the genre in such places of traditional learning as Cairo and Najaf, are becoming more attentive to the philosophy of law, jurisprudence and other theories of law as develop in the West.
Footnotes
[1] Bernard G. Weiss, “Introduction”, in Weiss ed., Studies in Islamic Legal Theory, Leiden, 2002, xvii.
[2] See Mallat, “On the philosophy of Islamic law”, originally presented at Lund, August 2003, forthcoming in Mallat and Tramontini eds., One and a Thousand Years of Arab Societies, Essays for John Donohue, Beirut 2005.
[3] See quote to this effect in Abdel Jabbar ar-Rifa‘i ed., Falsafat al-fiqh wa maqased al-shari‘a (‘philosophy of law [fiqh] and meanings of law [shari‘a], Beirut 2001, 33, and contributions by the following Iranian scholars under a ‘philosophy of law (fiqh)’ section: Muhammad Mujtahid Shebestari, Mustafa Malikian, Sadeq Larijani, ‘Abidi Sharudi, Naser Katuzian (at 39-221), to whom should be added ‘Abdel Karim Sorush. In his overview, at 36 fn 12, the editor puts the ‘birth’ of philosophy of law (fiqh) as project in an interview of Shebestari published in 1994.
[4] Mallat, “From Islamic law to Middle Eastern law: a Restatement of the field”, American Journal of Comparative Law, 2003:4, part one, 699-750, part 2, 2004:1 (arguing that from pre-Islamic Middle Eastern times through to the modern period the field would benefit immensely from a treatment of Islamic law in the same way that lawyers treat any other law.)
[5] Already in Hegel’s Lectures on the History of Philosophy (1817), a section on Arab philosophy features the most important Arab thinkers – including Farabi (d.966), Avicenna (d.1064), Averroes (d.1217), and Maimonides (d.1204), mostly as commentators on Aristotle’s logic, but without offering any “real progress” in philosophy: “Wir koennen von den Arabern sagen: Ihre Philosophie macht nicht eine eigentuemliche Stufe in der Ausbildung der Philosophie; sie haben das Prinzip der Philosophie nicht weitergebracht…. Aber nach allem, was wir von ihnen kennen, haben sie keinen wahrhaften Fortschritt im Prinzip gemacht; sie haben kein hoeheres Prinzip der sich bewussten Vernunft aufgetstellt.”G.W.F. Hegel, Vorlesungen ueber die Geschichte der Philosophie ii, Werke, Suhrkamp edition in 20 volumes, Frankfurt 2003 (4th ed.), vol. 19, 517-518.
[6] Descartes died in 1650, Mulla Sadra in 1640. Sadraddin ash-Shirazi, known as Mulla Sadra, is the author of a philosophical Summa in 9 large volumes, al-Asfar al-arba‘a (‘the four voyages’). This philosophy of the later Islamic period has found its way to the international scene mostly through the works of Henry Corbin, En Islam Iranien, 4 vols, Paris 1971-2 (on Mulla Sadra and the preceding ishraqi school, see especially vol.iv).
[7] On the Risala as “the first book in usul al-fiqh,” see the standard Arabic edition by Ahmad Muhammad Shaker, Cairo or. 1939, n.d. rpt., 13. Shafi‘i died in 820 CE. The structure of his compendium of law, al-Umm, is carefully examined by Joseph Schacht in his Origins of Muhammadan Jurisprudence, Oxford 1950.
[8] Ibn Khaldun (d.1406), al-Muqaddima, Beirut ed. 1978, 455. This hypothesis can be tested by examining the Risala, which appears in a good English translation by Majid Khadduri, Islamic Jurisprudence, Baltimore 1961, and, in a popularising chapter within Noel Coulson’s History of Islamic Law, Edinburgh 1964, 53-61 (featuring Shafi‘i as “master architect”), with the help of a large literature in Arabic and English since. The standard translation of the Muqaddima in English was done by Rosenthal, in French by Quatremère then Monteil.
[9] Wael Hallaq, author of a widely encompassing A History of Islamic Legal Theories: an Introduction to Sunni usul al-fiqh, Cambridge 1997, questions Shafi‘i’s entitlement to jurisprudential ‘masterdom’ in the early period, see at 18-19, 30-35.
[10] Secondary literature in English includes Mohammad Hashem Kamali, Principles of Islamic Jurisprudence, Malaysia, 1989, rpt Cambridge 1991. Between Hallaq’s History, and Kamali’s Principles, the English-language reader is capable of appreciating the contours of the field from two leading commentators’ perspective.
[11] Muhammad Baqir as-Sadr, Lessons in Islamic Jurisprudence, translated and with an introduction by Roy Parviz Mottahedeh, Oxford, Oneworld, 2003. Mottahedeh is Professor of Islamic Studies at Harvard. On Sadr, see my The Renewal of Islamic Law, Muhammad Baqer as-Sadr, Najaf, and the Shi‘i International, Cambridge 1993.
[12] Sadr’s Durus fi ‘ilm al-usul were published in three parts and four volumes between 1978 and 1980. The three parts, designed as cycles (halaqa) for the intermediate stage of studies in the Najaf colleges, offer many similarities in their subject-matter, with part 2 then part 3 (in two volumes) repeating, with more details and sometimes significant rearrangements, the treatment of part one. Lack of consistency and elements of repetition can be ascribed to the difficult times Sadr was confronting in Iraq during that period, and to the nature of the work: it is common for students to collect the lectures of renowned scholars and publish them, with their permission when they are alive, but not necessarily with careful oversight. The Lessons are consciously didactic, and the reader of volume-cycle 2 would be expected to consult the first cycle as he plods through a given theme. This collection of Lessons is one in a large number of lectures on usul in Sadr’s prolific career, many of which may never come to light. The first part (and volume) appears in Mottahedeh’s translation with an introduction, and a full glossary doubling up as a small dictionary of usul terms. It may not be a coincidence that possibly the foremost living connaisseur of Islamic literature in the West has chosen to translate the hardest technical writings of one of the most creative Muslim polymaths in the 20th century. Another English version of Sadr’s Durus was published almost at the same time as Principles of Islamic Jurisprudence According to Shi‘i Law, London, Islamic College for Advanced Studies Press, 2003, translated by Arif Abdul Hussein, edited by Hamid Algar and Sa‘eed Bahmanpour. While competent, and sometimes less intricate than Mottahedeh’s, it lacks the elegance known to Mottahedeh’s style. We shall use in the following notes M. for Mottahedeh’s translation, and S. for Sadr’s original text, followed by the page number.
[13] M. 35-46, S. 35-52.
[14] M. 40, S. 42-43.
[15] M. 39, S. 41.
[16] My translation of S. 44. M. 41 reads: “On this basis it is correct to call the discipline of jurisprudence ‘the logic of the discipline of legal understanding’, because jurisprudence stands to the discipline of legal understanding just as logic stands to human thought in general.”
[17] M. 46-53, S. 53-64. For early usul for the Shi ‘is, see R. Brunschvig, “Les usul al-fiqh imamites à leur stade ancient”, in Le Shi‘isme Imamite, Paris 1970, 201-14. In an earlier introductory book to the discipline, al-Ma‘alem al-jadida fil-usul (‘the new configuration of usul’) Beirut 1964, Sadr presents a remarkable historical compendium on the main scholars of usul in the Shi‘i tradition at pp.46-89. This exposition is translated in part by Arif Abdul Hussein in Principles of Islamic Jurisprudence, at 25-38. The Ma‘alem offers much that is taken up later in the Durus’ first volume. In an introduction to the latter book (not appearing in either translation) Sadr explains that the two works are indeed similar, but that he tried in the Ma‘alem to explain the field to a self-teaching student, whereas he anticipates that the Lessons would be acquired with the help of a teacher.Durus, i, 28. In terms of Sadr’s evolving thought, a close comparison between the two books would yield alluring results. In both cases, Sadr was careful to calibrate the level of difficulty with the student reader in mind, at the intermediate phase of the curriculum (known as sutuh, literally surfaces). Published works by Sadr for students at the last stage (bahth al-kharej, literally graduate or outside research) include, during his lifetime, Ta‘arud al-adilla al-shar‘iyya (edited by Mahmud al-Hashimi, Beirut 1977), Buhuth fi sharh al-‘urwa al-wuthqa, Najaf, 3 vols., 1971; posthumously Mabaheth al-usul (edited by Kazim al-Ha’iri, Qum 1987).
[18] M. 54-57, S. 65-69.
[19] M. 57-136, S. 71-194. There is a difference here in Sadr’s edition which I have used and that which Mottahedeh translated. The heading Buhuth (‘studies’) does not appear in M.’s translation, which features a second and third part without Sadr’s overall heading. M.’s second part (‘substantiating arguments’) encompasses the three final sections which we presented above under the introductory part one. The text does not otherwise vary.
[20] My translation of S. 75, M. 58: “This [common] element is the probativity of assurance. We mean by assurance the disclosure of a certain affair to a degree which doubt does not degrade.” Because the subdivision of substantive arguments includes the most important material available to the jurist, this part is the longest in the book.
[21] M. 63-64, S. 82-83. Because the subdivision of substantive arguments includes the most important material available to the jurist, this part is the longest in the book. The citation chosen is typical of Sadr’s style throughout.
[22] M. 64-102, S. 84-143.
[23] M. 103-118, S. 144-168.
[24] M. 119-136, S.169-194.
[25] M. 137-144, S. 195-205.
[26] M. 143, S. 203.
[27] Ibn Khaldun, Muqaddima, 452.