The Princeton Encyclopedia of Islamic Political Thought

jurisprudence

Jurisprudence in an Islamic context refers on the one hand to the corpus of laws or legal rulings and knowledge of the law, both termed fiqh. A jurist is therefore termed a faqīh, one endowed with knowledge of the law. On the other hand, jurisprudence also refers to the principles on which individual laws are based, or the hermeneutical system by which legal rulings on particular cases are derived, in which case it corresponds to the term uṣūl al-fiqh, literally “the roots of the law” but technically the science of legal hermeneutics. Already by the second Islamic century, fiqh had become a technical term signifying the academic discussion of Islamic law (shari‘a). The term fiqh designates human activity and the specific legal rulings jurists reach; it cannot be ascribed to God or to the Prophet Muhammad. The shari‘a, imposed on humankind by God’s revelation and embodied in the foundational texts of the Qur’an and hadith, is explained and elaborated by the interpretive activity of jurists. Since this is the only access to the law in practice, shari‘a and fiqh often overlap in usage, though the former retains the connotation of the divine (the law as God wills it) and the latter retains the connotation of the human (the law as an approximation of God’s will as determined by jurists).

In its widest sense, fiqh covers many aspects of religious, political, and civil life, including both practical and theoretical regulation and justification. The two most important genres of juristic literature are furū‘ al-fiqh (the branches of the law) and uṣūl al-fiqh (the roots of the law). Furū‘ al-fiqh works are compendia that set out the rulings on specific areas of the law in chapters that follow a recognized order, in greater or lesser detail and with varying amounts of justificatory argument. Uṣūl al-fiqh works identify and classify the sources of law and the methods adopted to derive legal rules and assessments from the evidence of revelation. These works also present a structure of authority that distinguishes the qualified jurist (mufti, mujtahid) from the layman (muqallid), excluding the caliphs and scholars who are not trained specifically as jurists, such as theologians and hadith experts, in the interpretation and elaboration of the law. Ideally, uṣūl al-fiqh may be seen as a pure science in comparison with the applied science of furū‘ al-fiqh.

Most major works of furū‘ al-fiqh discuss the points of law under three main divisions: ‘ibādāt (acts of worship), mu‘āmalāt (civil transactions), and qaḍāyā (court cases) or ḥudūd (prescribed criminal punishments). The ‘ibādāt section focuses on acts of religious devotion that are one’s individual obligation toward God and comprises rulings on ritual purity, prayer, alms, fasting, pilgrimage, and sometimes jihad, in that order, ostensibly corresponding to the frequency with which performance of the act of devotion in question is required. Mu‘āmalāt, for the most part treating private law or obligations between people, is more loosely ordered and includes family law; mercantile law; and laws relating to agency, land ownership, compensation for injury, murder, and so on. The third section includes the set penalties (ḥudūd) for seven specific crimes: theft or robbery, highway banditry, apostasy, rebellion, adultery or fornication, false accusation of adultery, and drinking wine. It also includes judicial procedure. Islamic jurisprudence thus leaves relatively undefined two areas of the law that are of tremendous importance for politics: criminal law for infractions other than the ones set by the ḥudūd and public law addressing the relationship of subjects to the government, including such topics as the payment of taxes. Historically, a compromise of sorts developed between the jurists and the rulers whereby the jurists recognized the legitimacy of the ruler and relinquished the right to control a great deal of public law in return for the monarch’s public commitment to the shari‘a, recognition of the jurists’ authority, and recognition of the jurists’ control over private law—the law between individuals. These gaps opened up the possibility for the prosecution of many crimes not treated in the foundational texts and the application of various punishments to those convicted of committing them—termed ta‘zīr in the legal tradition. It also opened up space for the relatively free elaboration of public law. The best-known and most developed of these systems is the kanun of the Ottoman Empire, which governed large areas of public law and procedure in government institutions.

Books on the points of law display literary formalism and casuistry but also attention to practical concerns and hardheaded realism. The four major Sunni schools of law or traditions of legal study—the Hanafi, Maliki, Shafi‘i, and Hanbali madhhabs—as well as the Shi‘i tradition show a broadly similar approach to the genre in this sense. There is a dual hermeneutical aspect to works in this genre: an interpretive relationship to the school tradition and a further interpretive relationship to the Qur’an and sunna. As loyal members of a legal school, jurists are committed to a discursive engagement with their past, the creative dimension of which is termed ijtihād, and the duty of submission, taqlīd. These legal schools functioned as authorizing institutions whose interrelations were governed by normative pluralism.

The standard content of a work of Sunni uṣūl al-fiqh may be exemplified by the al-Mustasfa min ‘Ilm al-Usul (Methods of jurisprudence) of Ghazali (d. 1111), which represents a high point in the development of the genre. The position of uṣūl al-fiqh in relation to the other Islamic sciences is explained therein; the uṣūlī, or legal theorist, accepts the results of theology and hadith criticism and then explicates the way in which Islam’s foundational texts indicate juristic norms, whether by explicit or implied meaning or through deduction and logical derivation. There are four broad areas of discussion: categories of the legal assessment of acts (mandatory, preferred, permitted, disliked, and forbidden); sources of the law (Qur’an, hadith, consensus, and analogy or independent reasoning); hermeneutical rules that permit extrapolation of norms from sources (analogical reasoning, a fortiori argument, reductio ad absurdum, etc.); and elaboration of the theory of ijtihād or independent reasoning.

The origins of Islamic jurisprudence are contested. Modern scholarship has rejected the traditional view that Islamic law began as a more or less mature system during or immediately after the lifetime of the Prophet. According to conventional understanding, fiqh came into being toward the end of the eighth century, created by jurists endorsing, modifying, or rejecting the popular and administrative practice of the Umayyad period. Revisionist scholarship has instead emphasized the emergence of fiqh from ancient Near Eastern legal cultures, Arabian customary law, or independent development. The Risala (Treatise) of Shafi‘i (d. 820) was previously considered to be the first treatise in uṣūl al-fiqh, the work that established the genre, but it has been judged by contemporary scholars to be either a late work or a work the implications of which it took time to discover.

Since their emergence in classical Islamic history, the genres of furū‘ and uṣūl al-fiqh have been produced continually until the present day, finding their most important social realization in the Islamic legal educational system. With the emergence of the madrasa, or college of Islamic law, in the 11th century, fiqh was recognized as the main purpose of education and retained this position until the decline of the traditional system in the 19th and 20th centuries. In modern times, three major factors have radically affected fiqh, mostly as a result of Western influence: the gradual emergence of secular educational systems; the appearance of independent nation-states and their associated legal forms, including law codes, constitutions, and statute law; and the ideological dissociation of political opposition from the tradition of fiqh.

Scholarly debate on Islamic jurisprudence has been cast in relation to modern legal reforms, especially concerning the possibility of change in the law and the challenge to a number of standard rules of interpretation. The “closure of the gate of ijtihād” was previously understood to have contributed to the rigidity of Islamic law and the decline of Muslim societies. Recent scholarship has challenged this theory and presented Islamic legal hermeneutics as a method for the discovery and development of legal rules, implying a capacity for change and evolution. Some maintain that Islamic legal theory is not developmental but rather concerned with the discovery of the law as an eternal and enduring truth, while others claim that Islamic theory is either largely divorced from the practical content of the law or used arbitrarily to justify legal assessments predetermined by tradition or various biases. The interplay of legal theory and practice has thus become an important object of scholarly study and debate. Beginning in the 19th century, Muslim reformers, including Muhammad ‘Abduh (d. 1905) and Rashid Rida (d. 1935), decried the rigid boundaries that had formed between the various madhhab traditions of Islamic law. They argued not only for modern jurists’ freedom to choose from all the legal positions found in the sources (takhayyur) and to borrow from other Islamic legal traditions—termed talfīq (piecing together)—but also for recognition that laws can and should change according to historical circumstances. A new field came into being, that of fiqh muqāran (comparative law), which involved studying similar issues across the madhhabs. One famous example of talfīq put into practice was the reform in the Anglo-Muhammadan legal system of the Hanafi law of divorce in order to facilitate the wife’s access to divorce by using a principle borrowed from Maliki law. Other modernists, such as ‘Ali ‘Abd al-Raziq (d. 1966), argued for the rejection or limitation of consensus, the unanimous agreement of the jurists that acts as a sanctifying authority and makes a particular legal position historically unassailable, according to classical legal theory. Many thinkers have sought to limit the application of consensus, analogy, and other principles, emphasizing instead public interest (maṣlaḥa) or textually unregulated benefits (al-maṣāliḥ al-mursala) as a guiding principle in the reform and elaboration of the law. Still others have argued for the rejection of the hadith as a foundational source of law, restricting that role to the Qur’an, or even to the portion of the Qur’an that was revealed at Mecca. These radical efforts at reform have met with very limited success and in many cases have been vehemently rejected. Fundamentalists and others have argued for the development of an Islamic law that is not limited by or restricted to one madhhab; in practice, however, because the vast majority of the medieval texts they consult were written within the epistemological system of the madhhabs, they have tended to fall back on positions that resemble those of one or another madhhab.

Since the late 20th century, in reaction to the encroachment in Muslim nations of secular law, which often entirely replaced Islamic law except in matters of marriage, divorce, and inheritance, many religiopolitical movements have clamored for application of the shari‘a. In many cases, a vague concept of shari‘a is promoted with a utopian understanding of Islamic law’s ability to bring order and social justice to the nations involved by curbing corruption, fending off Western influence, and promoting public morality. Such optimism is neatly captured in the slogan popularized by the Muslim Brotherhood in Egypt and others: al-Islām huwa al-ḥall (“Islam is the solution”). In Saudi Arabia, Iran under the Islamic Republic, Afghanistan under the Taliban, and the Sudan, various forms of Islamic law have been instituted. Hamas in Palestine, the Front Islamique du Salut in Algeria, and many other political parties and movements in the Islamic world have made vocal calls for doing the same in their nations.