A difference of opinion (ikhtilāf) is a ubiquitous feature of Islamic law. More often than not, on any given issue a number of equally legitimate legal rules exist. Classical legal theory (uṣūl al-fiqh) tended to explain the legitimacy of differences of opinion as a result of the many ways in which the divine textual sources of the law (Qur’an and sunna) could be interpreted. Given that one of the main functions of a ruler or judge is to apply Islamic law, the legitimacy of a plurality of interpretations of the Divine Law (ijtihād) posed acute problems: Which law should the ruler implement? Which body of rules is the judge to apply? What makes the applied rule legitimate? In the classical period, Muslim legal theorists’ justifications for the legitimacy of the applied rule vacillated between emphasizing the legitimacy of the institutional role of the applier of the rule (i.e., did the applier legitimately occupy the role of the ruler or judge?) and the scholarly competence of the individual applier (i.e., was the individual applier himself a mujtahid [expert jurist]?).
In the early classical period, the legitimacy of a judicial application of one opinion over another depended on whether the judge possessed the competence to derive the relevant legal rule from the textual sources of the Divine Law. In theory, this competence required the possession of knowledge of the divine textual sources, rules of textual construction and the accepted methods of legal reasoning, and moral probity. The scholar of the Shafi‘i school Mawardi (d. 1058) regarded the absence of these qualifications as ground for invalidating a judge’s appointment and his judicial decisions. Two generations later, Ghazali (d. 1111) upheld the necessity of these qualifications for judges but did not regard them as essential for the validity of the cases that the judge had decided. As long as the judge’s appointment by the ruler was legitimate, he was willing to accept the validity of past decided cases even if the judge was not a mujtahid in his own right. Similarly, the Maliki scholar Abu al-‘Abbas Ahmad b. Idris al-Qarafi (d. 1285) identified the validity of the judicial decision as resting not on the individual judge’s expert competence but on “receipt (from an authorized authority) of a specific jurisdiction (wilāya khāṣṣa)” (Jackson, 1996, 160). Jackson interprets Qarafi’s justification as motivated by the desire to protect the legitimacy of disagreement among the major Sunni legal traditions of his time. Qarafi held that a judge’s decision according to the rule of any one of the established legal traditions (madhāhib) could not be challenged on the ground that the rule rested on an incorrect understanding of the sources of the Divine Law. Qarafi argued that a firm consensus had validated the legitimacy of the differences of opinion as enshrined in the four Sunni legal traditions. Any judicial decision based on a legal rule upheld by any one of these traditions was valid because of this consensus. This meant, for example, that a Hanafi jurist who had the ear of the sultan could not seek to invalidate a judicial decision based on the application of a Maliki rule by arguing that the Maliki rule is an incorrect interpretation of the divine sources. Such an argument would be a violation of the consensus.
The Ottoman solution to the problem of which rules should be applied favored the Hanafi legal tradition over others. Hanafi doctrine, in contrast to the other Sunni legal traditions, permitted the ruler to restrict judges to the application of a specific legal tradition. Based on this legal doctrine, the Ottomans directed all judges, regardless of school affiliation, to apply only Hanafi legal rules in certain types of cases.
As a legacy of this older Ottoman prejudice and initial 19th-century Ottoman attempts at codifying Islamic law, much of the law constituting the legal codes to be applied by judges was heavily indebted to the Hanafi legal tradition, even in areas where the majority of a region’s inhabitants belonged to another legal tradition. Between 1880 and 1955, for example, the Egyptian legislature directed judges of religious courts to construe family law statutes according to the Hanafi legal tradition. This changed shortly after the shari‘a became explicitly identified as a constitutional source for the legal rules of the country (article 2 of the 1971 Constitution). The Supreme Constitutional Court started hearing cases in which the application of Hanafi rules had undesirable consequences. In many of the decisions in these cases, the justices asserted, much like Qarafi, that only laws that were unanimously agreed upon were binding from a shari‘a perspective. Thus, in the absence of consensus, the Supreme Constitutional Court of Egypt ruled that political authorities were free to pursue legal rules that more faithfully fulfilled the objectives of the shari‘a. Here the difference of opinion on an issue of legal controversy opened the possibility of weakening a legislative statute that had previously directed judges to follow the rules of one tradition.
For the contemporary Egyptian scholar Yusuf al-Qaradawi, a difference of opinion broadly indicates an area that the shari‘a left open to discretionary human judgment (al-umūr al-ijtihādiyya). He argues further that where difference of opinion exists, ordinary Muslims can legitimately engage in deciding issues of the common good, such as the proper constitutional framework for their politics, setting policy, making law, and electing their leaders. When several competing options exist on an issue, Qaradawi insists that ground must be found for preferring one opinion to another and denies that the preference can be arbitrary. In his view, there must be some nonarbitrary way to tip the favor of one legal rule over others. Reasoning that the “opinion of two is more likely to be correct than the view of a single person,” he attempts to justify the democratic practice of voting as one such way of deciding upon the constitutional framework and issues of policy that is, at the minimum, consistent with the shari‘a.
See also consensus; ijtihād and taqlīd; jurisprudence; shari‘a
Further Reading
Hamid Enayat, Modern Islamic Political Thought, 1982; Sherman A. Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī, 1996; Baber Johansen, “The Constitution and the Principles of Islamic Normativity against the Rules of Fiqh: A Judgment of the Supreme Constitutional Court of Egypt,” in Dispensing Justice in Islam: Qadis and Their Judgments, edited by Muhammad Khalid Masud, Rudolph Peters, and David Stephan Powers, 2006; Rudolph Peters, “What Does It Mean to Be an Official Madhhab?” in The Islamic School of Law: Evolution, Devolution, and Progress, edited by Peri Bearman, Rudolph Peters, and Frank E. Vogel, 2005; Yusuf al-Qaradawi, “Islam and Democracy,” in Princeton Readings in Islamist Thought, edited by Roxanne L. Euben and Muhammad Qasim Zaman, 2009.
MAIRAJ SYED