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Islam

Sunni Authority’s Legitimate Plurality

Ulama at an Abbasid library. Illustration by Yahyà al-Wasiti (1237)

In Sunnism, there can be no infallible interpreter of revelation after Muhammad’s death. The result is an interpretational pluralism that the ulama have tried to mitigate but not eliminate

This article was published in Oasis 27. Read the table of contents

Last update: 2018-11-13 09:29:36

In Sunnism, the gulf between God and human beings has prevented the emergence of figures that could present themselves as revelation’s infallible interpreters. After the death of Muhammad, the last intermediary between the Creator and His creatures, no individual can inherit his authority and this has led to its segmentation between various people and disciplines. Thus the way has been paved for pluralism in the interpretation of the revealed texts. A pluralism that the ulama have tried to stem, without ever completely eliminating it.

 

 

Increasingly scholars, political pundits, Muslims, co-religionists, and many others are asking the question, “Is Islam in Crisis?” Those who answer the question in the affirmative posit that the absence of a single authority has led to the proliferation of competing authorities. One of the most cogent arguments for this perspective was put forth by Richard Bulliet, the famed historian of Islam, in 2002:

Today’s crisis grows in part out of the structure of Islam itself – a faith without denominations, hierarchies and centralized institutions. The absence of such structures has been a source of strength that has permitted the faith to adapt to local conditions and win converts around the world. But it is also a weakness that makes it difficult for Muslims to come together and speak with one voice on important issues – to say what is and what is not true Islam. Islam’s structural weakness has been immeasurably magnified by a series of historical forces that have gradually compromised the authority of its traditional religious leaders in the Middle East and elsewhere. The imams and muftis who once shaped the worldviews of ordinary Muslims have been overshadowed by more innovative and often radical figures with much shallower roots in tradition. The crisis has three related historical causes: the marginalization of traditional Muslim authorities over the past century and a half; the rise of new authorities with inferior credentials but greater skill in using print, and more recently, electronic media; and the spread of mass literacy in the Muslim world, which made the challengers’ writings accessible to vast new audiences.[1]

 

For Bulliet, the crisis of authority is a result of the political structure of Islam which rejects, according to him “denominations, hierarches and centralized institutions.” This structure which historically accommodated diversity is unable to cope with the sheer amount of diversity brought about by the rise of new authorities, print media, and mass literacy.

 

While I agree in part with Bulliet’s assessment regarding the contemporary proliferation of authorities in modernity, I disagree with the perspective from which he analyzes the question of authority. Bulliet begins with the assertion that the current crisis of authority in Islam is a natural outworking of a structural deficiency (though he does not frame it in such curt terms) that struggles to successfully mitigate competing perspectives and ideologies. This assumes that Islam always suffered from a weak notion of authority, or no notion of authority, and the conditions of modernity only further exacerbated this “structural problem.” I would contend that while religious authority was not centralized in the same manner as one may find within the Catholic Church, a robust concept of authority existed, and alongside it, various mechanisms whereby plurality could be navigated.

 

In his Whose Justice, Which Rationality? Alasdair MacIntyre makes a compelling argument for analyzing concepts such as reason and justice within intellectual traditions. To this end he states, “a conception of rational inquiry as embodied in a tradition, a conception according to which the standards of rational justification themselves emerge from and are part of a history in which they are vindicated by the way in which they transcend the limitations of, and provide remedies for, the defects of their predecessors within the history of that same tradition.”[2] If we extend this principle to the question of authority, then any investigation into authority must be situated within the tradition that bears it; only then can it be fully understood and compared to other notions of authority in a rigorous and methodologically sound manner. However, delving into a religious “tradition” is not an easy task. As Talal Asad has noted of Islam, it is a “discursive tradition” that produces “Islams” instead of a singular monolithic “Islam.”[3]

 

To understand authority in classical Islam, the reasons for its plurality, and methods of navigating this plurality a series of questions need to be asked: 1) How was authority understood during the time of the Prophet and after? 2) How were multiple modes of authority maintained in classical Islam? 3) Were there any attempts at centralizing authority? And if so, were they successful?

 

Authority in classical Islam was established upon three pillars: texts, context, and individuals. By this I mean that at any given time, who or what was authoritative was established based on which individuals were present, what religious texts were present, and what the socio-economic milieu was. For the purposes of our investigation I would like to look at three main time periods: the Prophetic era, the post-Prophetic pre-classical era (seventh to ninth centuries), and the classical era (ninth to fifteenth centuries).

 

 

The Prophetic Era   

During the time of the Prophet, needless to say, authority was solely vested in him. While the orally transmitted Qur’an provided foundational guidance for the nascent Muslim community, the Prophet was its exegete and its vessel, and was seen as the community’s only infallible connection to the Divine. Matters not addressed in the Qur’an were addressed to the Prophet. Despite the singular source of authority during this era, the Muslim community inhabited two contrasting socio-economic milieus. In the early history of the Muslim community in Mecca, Muslims occupied the lower socio-economic classes and were continuously threatened by more powerful Meccan and Arabian tribes who saw the message of Islam as a challenge to their way of life. This shifted considerably after the Muslim community migrated to Medina where the Prophet could assume a more public role of not just religious leadership, but also social and political leadership. Despite the more pronounced power of the Prophet, neither the community nor the Prophet tackled the question of continuity after his death – there was no blueprint for how political, social and religious affairs would be handled, ushering in great contestation.

 

There were two competing visions of authority after the death of the Prophet in the two centuries I have denoted as the “post-prophetic pre-classical era.” One vision of authority, which became the vision of the Shi‘a, was based on kinship. This vision recognized the elevated status of members of the Prophet’s household and argued that the Prophet’s infallible authority continued to be transmitted within his family. The second vision, the one adopted by the Sunnis, was one based on religious and moral excellence.[4] This vision recognized that the expiry of the Prophet marked the absence of any singular infallible leader for the Muslim community, but also recognized that criteria were needed to establish who could be considered a legitimate leader.

 

The two events that demonstrate the understanding of authority at this critical juncture are the incident at Saqīfa, in which ‘Umar pledged his support in favor of Abū Bakr as the successor to the Prophet as leader (Caliph) of the Muslim community,[5] and Abū Bakr’s first address as Caliph. In the former, two important points of early leadership are established – that of a singular political leader, even if fallible, and that of consultation. In the latter, preserved by the historian al-Tabarī (d. 923), Abū Bakr attempts to balance between the Muhājirūn – those companions of the Prophet who journeyed with him to Medina after his expulsion from their home city of Mecca and the Ansār – those inhabitants of Medina that accepted the expelled Prophet and the Muhājirūn from Mecca. To this extent, Abū Bakr states,

They [the Muhājirūn] are the first to worship God on earth and to place their faith in Him and His Messenger. They are his [the Messenger’s] closest associates and his kinfolk and are the most entitled to this matter [sc. the caliphate] after him. Only the wrongdoer opposes them in that. O gathering of the Ansār, [you are] those whose excellence in religion cannot be denied or whose great precedence in Islam cannot be denied. It pleased God to make you helpers of His religion and His Messenger. He made his [the Messenger’s] emigration to you and from among you are the majority of his wives and his Companions. After the first emigrants, there is no one else of your status in our estimation. Thus, we are the rulers (al-umarā’) and you are the assistants (al-wuzarā’). We do not fail to consult you with regard to political matters and we do not adjudicate matters without you.[6]

 

Asma Afsaruddin, in analyzing this statement, has noted that the two most important elements in Abū Bakr’s address are precedence and priority, and their existence, she argues, imbues individuals with moral excellence.[7] If reflections on the incident at Saqīfa and Abū Bakr’s address are combined, then the early notion of authority after the death of the Prophet was focused on establishing a singular political authority on the basis of religious precedence and moral excellence, coupled with consultation between senior figures of the community.

 

This broad conception of authority as developed immediately after the death of the Prophet is supported by the manner in which the subsequent three Caliphs were selected, and by their modes of governance. Additionally, this early understanding also applied to religious authority in other matters. For example, following the death of the Prophet, there was a desire to preserve his practice, but preserving it textually was not the primary means of doing this. Rather, the focus was on preserving the communal practice of the companions, which was seen as emblematic of the Prophet’s practice and legacy.

 

For example, Scott Lucas undertakes a quantitative analysis of themes in the Musannaf of Ibn Abī Shayba, one of the earliest extant texts dated to late second/eighth century, and demonstrates that of the 3628 narrations in the text, only 8.7% of them are actually statements attributed to the Prophet.[8] The topics covered in the text include prayer, zakāt [ritual alms-giving], divorce, hadd crimes [punishments envisaged in the Qur’an] and other matters related to daily worship and the community. Most of the narrations return to companions of the Prophet, and even when the Prophet is cited as an authority, a companion’s opinion is usually brought in support. For Lucas, the text is demonstrative of the sentiment in the second/eighth and third/ninth centuries that the practice of the companions of the Prophet was indeed the practice of the Prophet, and if one wanted access to what he did, they merely have to look at what the companions were doing. Therefore, Prophetic words were tested against companion practice. This means that whether we are investigating political authority, or religious authority, precedent and moral excellence became the bar to measure suitability.

 

This mode of understanding authority, however, was short-lived. The era of the four Caliphs was followed by dynastic power, namely the rule of Banū ‘Umayya, better known as the Umayyads. Leaders were not selected based on religious precedence and moral excellence, but by virtue of their tribal belonging. The first Caliph to assume authority under the banner of the Ummayads in 661 was Mu‘āwiya, the cousin of the third Caliph, ‘Uthmān Ibn ‘Affān. He was criticized almost immediately for introducing the idea of kingship (mulk) as he justified his position on the basis of his tribe. He then appointed his son, Yazīd, to be his successor, and from then on until the overthrow of the Umayyads by the Abbasids in 750, hereditary successorship was the model of rule. As a result – aside from the rule of ‘Umar Ibn ‘Abd al-‘Azīz – almost all early Ummayad Caliphs are portrayed in historical texts as “impious tyrants who made a travesty of the highest ideals of Islam and irrevocably caused the fragmentation of the Muslim polity.”[9] Emblematic of their brazenness is the title they adopted, Khalīfat Allāh (“deputy of God”), whereas the four first caliphs referred to themselves as Khalīfat Rasūl Allāh (“successor of the Messenger of God”).

 

It is against this backdrop of tribal and impious leadership that the proto-Shi‘a laid their claim to leadership citing that ‘Alī, the fourth Caliph and cousin of the Prophet, had a closer blood relationship to the Prophet than Banū ‘Umayya. Clashes between the Umayyads and the proto-Shi‘a culminated with Husayn, whose tragic massacre at Karbala in 680 only further tarnished the Umayyads as “unscrupulous wielders of political power.”[10] Despite the negative image of the Umayyads, their reign lasted almost an entire century as they fulfilled the vital task of bringing political and spatial stability to the newly acquired lands of Islam. However, as succession became the dominant mode of political leadership, and the early conception of authority was rendered irrelevant, a bifurcation was introduced in the realm of conceptualizing authority. Given that the Umayyad Caliphs were chosen based on lineage, they did not assume religious authority, and in fact, often lacked the moral excellence that the populace desired. So, while for pragmatic reasons, political authority was accepted for the majority of Islamic history as dynastically inherited, the community had to contend with the question of religious authority.

 

 

Religious Authority

There are many disciplines that dominate Islamic intellectual thought, each with a unique history and set of texts that merit consideration, but delving into all these disciplines and the structures of authority contained within them is far beyond the scope of this article. For that reason, I want to take on a much more manageable task. First, I want to understand why there were so many distinct disciplines and the purpose they served in the development of Islamic intellectual thought. Second, I want to ask beyond their distinct intellectual inquiries, what connected these disciplines. And third, I want to analyze the development of Islamic law, and its structure of authority. In doing so, I would like to demonstrate how it is emblematic of larger trends that emerged within Islamic intellectual history.

 

Starting with the first question: why the presence of many disciplines? During the time of the Prophet, as I noted earlier, the Prophet was the reservoir of all religious knowledge and was seen as infallible due to his unmediated connection with God. With the passing of the Prophet, this infallible intermediary ceased to exist, and the community understood that nobody could assume his place. This meant that while all the discrete knowledge forms he contained had to be preserved, studied and transmitted, it was not a task that could be undertaken by a single individual. In the realm of law for example, all companions had a basic amount of legal knowledge stemming from their participation within the Muslim community, but after the death of the Prophet, only seven of his companions were considered qualified to give legal rulings on matters under inquiry.

 

Similarly, when it came to the Qur’an, dozens of companions had memorized the Qur’an, yet only a few were selected to participate in the process of compiling the official text of the Qur’an. What we see almost immediately after the death of the Prophet was an understanding that different elements of Islamic thought will have different specialists on the basis of knowledge. Both the segmentation and the specialization of knowledge was a direct outworking of the passing of the Prophet. These two elements, segmentation and specialization, lasted throughout Islamic history, and constructed a system in which an individual could have legal authority, but not theological authority, and vice versa. The segmentation of disciplines, therefore, becomes one of the first ways in which plurality is ushered into the Islamic intellectual world. If one claimed to be an authority on all matters, then they would be too close to make a Prophetic claim; the most one could do was to claim expertise in a specific field. This then begs the question: why did each field have multiple sources of authority? Was segmentation and specialization not enough to prevent an individual from making Prophetic claims? The answer to this question lay in the theology and the epistemology of Islam, which is where we turn to now.

 

Islam has often been characterized as espousing a radical monotheism. The “radical” element of this monotheism stems from the theological assertion regarding the emphatic distinction between God, as creator, and human beings, as the created. Similitude between God and the human was akin to heresy, and though the attributes of God could be identified in human beings, they were understood to be entirely distinct from one another. Even Prophets, who were understood to be perfected beings, had no stake in divinity. The emphasis on divine sovereignty and the infinite nature of God was seen in contradistinction to the temporal presence of human beings and their finitude. For the majority of Muslim theologians, revelation occupied such a foundational place in the lives of individuals because it enabled human beings to access divine knowledge, and by extension, receive guidance. Due to the centrality of revelation and God’s message, Muslims espoused what Bernard Weiss has coined a textualist and intentionalist approach to the text.[11] By this Weiss sought to emphasize that the main objective for Muslims was to understand the “intent” of the Divine through the “text” which had been revealed. In this sense, human reason was an important tool in comprehending divine knowledge, but it was not to function independently; rather it was to function within the parameters that had been laid bare by revelation itself.

 

While in theory this textualist and intentionalist bend aligned well with the radical monotheism characteristic of Islam, interpreting the Qur’an was not an easy task. The linguistic complexity of the text, the non-linear structure, the piecemeal revelation, the various contexts of revelation, and the multiple dialects of its transmission made agreeing on an interpretation very difficult. Moreover, while the human intellect was seen as a judicious tool of interpretation, it was ultimately understood to be fallible. As a result, human endeavors to decipher the Divine intent were understood to be one of multiple possible interpretations. This probabilism[12] meant that while scholars and individuals were tasked with understanding Divine intent as conveyed in scriptural sources, they had to accept the existence of multiple legitimate opinions. The legitimacy of probabilism was a natural outworking of a textual and intentionalist approach to the Qur’an that affirmed divine sovereignty. The legitimacy of probabilism was also a natural outworking of a segmented and specialized approach to knowledge which recognized that certain subjects covered in the Qur’an required experts due to the absence of a single infallible leader.

 

These various elements: segmentation, specialization, textualism, intentionalism and probabilism collectively precluded, on theoretical grounds, the existence of a singular source of religious authority.

 

 

Authority in Islamic Law

Although, as I noted, many disciplines are worthy of inquiry when discussing authority, Islamic law is particularly instructive. While the discipline of theology was always noted to be “the most lofty of sciences”, individuals are often divorced from complex theological questions beyond basic tenets of belief. Law, on the other hand, is a pervasive element of daily life by virtue of ritual. Moreover, as we transition to discuss the notion of authority in contemporary Islam, many of the fault lines are in fact due to law.

 

To begin, as I noted earlier in discussing the broad notion of authority after the Prophet, authority was highly segmented and after the period of the four first caliphs, the Caliph was no longer assumed to have a heightened degree of religious knowledge, or religious authority. Curiously at this time, as was noted in the study of Scott Lucas, the authority of the Prophet as lawgiver was not entirely established. While the Prophet continued to be in the Muslim mind the vessel of Divine guidance, people focused on the sayings and the practice of his companions. In the text analyzed by Lucas, this is exemplified by the fact that when detailing various ritual actions, legal rulings and justifications are on the basis of companion practice as opposed to explicit Prophetic dictates. This had a longstanding impact on Islamic law.

 

In the second/eighth century then, instead of looking towards collecting and canonizing the sayings of the Prophet immediately after his death, as was done with the formalization of the text of the Qur’an, what arose were local, legal authorities. These early legal communities have been described in a variety of ways. Joseph Schacht, the early orientalist scholar, denotes them as “ancient schools,” George Makdisi refers to them as “local schools,” and more recently, Wael Hallaq refers to them as “personal schools.”[13] Though the three scholars disagree on the most suitable terminology to describe these early legal schools, all three agree that these early schools lacked the legal theory, internal structures, and theories of authority, to be called a madhhab, or legal school, as they later came to be known. What these schools did have were scholars with a refined understanding of Islamic knowledge, often bestowed upon them through connections, both direct and through a third party, with the Companions. Therefore, these early schools were very much considered authoritative and legitimate based on the model of authority that recognized precedence and moral excellence of the companions. Though there were many early schools, the two oldest that survived were the Hanafi school, founded by Abū Hanīfa (d. 767) and the Maliki school founded by Mālik Ibn Anas (d. 795).

 

Mālik Ibn Anas quickly rose to prominence as a scrupulous scholar that sought to preserve the practice of the people of Medina as he saw it as emblematic of Prophet practice. Abū Hanīfa’s school developed in the garrison town of Kufa where his access to the successors of the Companions (those who had met, learnt and studied with companions of the Prophet) and Companion practice was much more truncated. As a result, Abū Hanīfa relied on the few authorities at his disposal and sought to extract precedents and principles from previous rulings in order to apply to other cases. Though Mālik and Abū Hanīfa had different methodologies, both understood the need for continued legal guidance, and the need for authorities in specific localities. The differences in their methodology can be identified in their texts. For example, if one juxtaposes Abū Hanīfa’s Kitāb al-Athār, narrated by his student Muhammad al-Shaybanī, and Mālik’s Muwatta’, what is most striking is that despite covering almost identical issues, there are very few narrations in the two texts that overlap. The absence of shared authorities, aside from the Prophet, and also shared narrations, demonstrates that in the nascent stages of Islamic law, authority was by no means singular. Going back to my earlier comments regarding the theological imperative of multiple sources of authority, we now see that the manner in which Islamic law developed in different locations, on the basis of different individuals and methodologies, led to the resistance of centralizing authority on very practical grounds.

 

If Mālik came to a conclusion derived from interpretation of legal sources at his disposal in Medina, to try to enforce that decision on a smaller group of Muslims living in a far-out garrison town would be practically impossible. Here context played an important role as well. Though Medina and Kufa were both important cities for the Muslim community, the two were very different. While one lay at the center of the Muslim world, the other was on the outskirts. While one was ripe with Prophetic memory, the other was home to a small group of Muslims, often converts. And while one was the source of stability for the entire Muslim empire, the other was a garrison town protecting Muslim lands. Given that law is inevitably affected by the context in which it is generated, not only were the legal scholars unique, and their sources of authority different, but their contexts were distinctive. Thus, while they were theologically united under the banner of Islam, they had differences upon legal prescriptions – differences that were considered both legitimate and necessary.

 

Scholars have typically described the era I have just been speaking about as the first stage in the development of Islamic law. Though in this stage the basic foundations of how Islamic law was to be conceptualized were laid, legal theory was still largely absent, and while diversity in authority was accepted, eventually scholars realized that diversity had to be contained otherwise unmitigated diversity would usher in a relativism within law that would undermine its religious purpose.

 

The second stage in the development of Islamic law is often traced to Muhammad Ibn Idrīs al-Shāfi‘ī (d. 820). Secondary scholarship is often divided on how to classify his role in the development of Islamic legal thought; nevertheless, there is general agreement that al-Shāfi‘ī’s most lasting contribution was asserting the authority of the Prophet within the realm of law. Before the time of al-Shāfi‘ī, while the Prophet was undoubtedly seen as an important figure, he was not considered the preeminent constitutional source for legal derivation by the jurists. Emphasis was put more on Companion consensus, opinions and practice. What al-Shāfi‘ī argued was that legal guidance from the Prophet was on the same level as legal guidance from the Qur’an, so in the realm of positive law, the jurist should first turn to the Qur’an and the hadīth before turning to practice of the Companions, consensus of the jurists (ijmā‘), or independent legal reasoning (ijtihād). Initially there was resistance to the adoption of Shāfi‘ī’s new hadīth-centered paradigm, but eventually the authority of the Prophet was cemented into the juristic imagination. The task of compiling and authenticating the hadīth was the next obstacle. While scholars had been referring to sayings of the Prophet, and there were texts preserving them as well, for the hadīth to function as a primary source of law, all of the hadīth had to be compiled, critiqued and verified. This process began during the time of Shāfi‘ī himself, but consolidated with Muhammad al-Bukhārī (d. 870) who eventually penned what was to become one of the most authoritative texts of hadīth, the Sahīh al-Bukhārī. The text was understood to contain only those hadith that had been rigorously authenticated such that one could be relatively certain that the narration was indeed the Prophet’s words. With Sahīh al-Bukhārī, and a few other similar texts, and the Qur’an, the Islamic scriptural canon was considered to be complete.[14]

 

Alongside this process, the legal schools also continued to develop and systematize their legal theory. The foundation of the theory was, of course, agreement on the sources of law. Once hadīth were canonized, and Shāfi‘ī’s “hadīth-centered” paradigm was accepted, what emerged is known as the “Great Synthesis,” as coined by Wael Hallaq. The Great Synthesis refers to the agreement of the legal schools on the major sources of law that would be used in the derivation of law. These four sources of law were the Qur’an, hadīth, juristic consensus (ijmā‘) and independent juristic reasoning (ijtihād). This agreement on legal methodology was coupled with three other phenomena which eventually contributed to the rise and dominance of four legal schools. The three other phenomena were the creation of a group identity, the creation of a common literature reflective of a common methodology, and a shared intellectual discourse. These three elements, argued for most recently by Ahmad El Shamsy, shifted the character of the legal schools from local, personal and religious schools to fully fledged legal schools as they were known in the late ninth and early tenth centuries. Briefly, Shamsy argues that beyond methodology, what cemented the power of the legal schools as they developed was group identity, or loyalty in which adherents to the school, while recognizing the legitimacy of other schools, were loyal to the eponym of their school and the legal methodology he espoused. This loyalty then translates into texts that are written, whether they be commentaries on original texts or new texts. The schools developed a corpus of texts reflective of a singular methodology.[15] Eventually, an accumulation of these texts over time created what he denotes as a shared intellectual discourse, or a community of interpretation, whose authority is both theoretically and practically cemented. Legitimacy in a school came from a shared set of sources, and differences came from disagreement on how these sources are invoked, or the methodology whereby law is derived from these shared set of sources.

 

The theological recognition of fallibility, coupled with different methodologies and developmental histories, resulted in multiple poles of legal authority that all recognized one another as legitimate. The different developmental histories are particularly important as they have an indelible impact on methodology. For example, the Maliki school, founded in Medina, recognizes the custom and practice of Medina as a source of law, whereas the Shafi‘ī school, which develops in Egypt does not recognize the custom of Medina, and instead emphasizes hadīth and espouses a complex and sophisticated hermeneutical theory to approach scriptural sources.

 

Though the four legal schools eventually dominated the legal scene, accepting one another as legitimate both on practical and theological grounds, a debate did arise between them, and other legal schools that did not survive, regarding the ontological multiplicity of truth (ta‘addud al-haqq). There were three questions that jurists asked. First, is every legal scholar (mujtahid) correct in legal matters? Second, if there is only one correct mujtahid, are the others incorrect and therefore worthy of blame? And third, is the one correct mujtahid known?

 

There was general agreement that on matters that had decisive or apodictic evidence, there could only be one correct mujtahid. This applied to matters of law that were so clearly established in the Qur’an and hadīth that it would be logically impossible to deny them, and doing so would constitute denying the scriptural sources themselves. The disagreement that arose considered whether every mujtahid is correct when it comes to matters that lack in apodictic evidence. One group, known as the musawwiba, argued that every mujtahid is correct and that God’s rulings correspond to each mujtahid opinion. In effect, for them every mujtahid was correct because on issues in which there is no apodictic evidence, there is no divine ruling. Opponents of the musawwiba, known as the mukhatti’a argued that regardless of evidence, there is a divine ruling in each instance, and one jurist is correct whereas the others are incorrect. Some jurists took a middle position arguing that there is only one truth, but it is unknowable, so if there is a legal disagreement, the matter should be left to the judge. As the truth according to these individuals is unknowable, one cannot know which mujtahid is correct, and which is incorrect.

 

The dominant position eventually came to be that of the musawwiba – namely, that when dealing with probable evidence, the truth of the legal question or the correct answer is present within the mind of God, but it remains unknown to the jurists. Those jurists who arrive at the incorrect answer, provided that they follow a defined methodology seeking the correct answer, are not considered blameworthy.[16]

 

 

Mitigating Plurality

Despite the acceptability of plurality, jurists were keen to limit it both within madhhabs, and also between madhhabs. Though there were many mechanisms to achieve this, I would like to focus on the following four: (1) the doctrine of consensus; (2) the doctrine of ijtihād/taqlīd; (3) the notion of tarjīh and (4) jadal, or dialectic disputation.

 

As to the first, juristic consensus (ijmā‘), it constituted one the foundational four sources of law agreed upon by all legal schools. The doctrine of consensus was relatively simple – for matters that lacked clear scriptural guidance and were therefore considered epistemically probable, if the jurists of a single era agreed on a legal ruling, that matter would cease being epistemically probable and become epistemically certain. This means that it would become binding on all Muslims, regardless of their differing legal affiliations. Notwithstanding the fact that cases of consensus are not plentiful in Islamic legal history, the existence of the doctrine demonstrates that scholars were thinking about ways to mitigate differences that arose in legal matters. Perhaps what is most noteworthy about this doctrine is the implicit desire of jurists to have agreement on matters that would impact large segments of the Muslim population. While the doctrine of consensus could theoretically apply to any legal matter that was epistemically probable, the likelihood is that jurists will only coalesce around matters that are of wide social significance. Thus we see that historically, when consensus did occur, it was significant. Al-Ghazālī, recognizing this, makes a rational argument for the legitimacy of consensus on the basis of its miraculous nature. He argues that if jurists of different dispositions and societies can agree upon a single issue, surely it has been divinely facilitated.

 

The second mechanism of mitigating plurality was taqlīd. It has been referred to in Western scholarship as “blind following,” and scholars took it as demonstrative of the paucity of legal thinking after the thirteenth century. However, more recently, secondary scholarship has recognized that instead of taqlīd marking the decline of Islamic legal thought, it signals its maturity. Argued first by Wael Hallaq and then Sherman Jackson, both scholars recognize that taqlīd is indicative of the stability brought about in Islamic law by virtue of agreeing on a set methodological parameter for legal derivation.[17] While “blind following” was indeed encouraged for the laity, legal thought continued to flourish through intra-madhhab disputation. By encouraging debate within the madhhab, legal derivation continued, but it was limited on the basis of methodology and legal stature. Thus, it was only jurists of a certain level that engaged in independent reasoning within the madhhab structure through employing a certain methodological apparatus.

 

The third mechanism of mitigating legal plurality and difference was through the process of tarjīh or preponderance. Despite a shared methodology within a single madhhab, arriving at differing opinions was not only possible, but often likely. In fact, the students of the eponyms of the school were both famous for transmitting the opinions of the eponym, but also disagreeing with them. While this inter-madhhab differences signaled the vitality of the school, there was an increasing need for a single doctrine to be preponderated over others. This need deepened in the thirteenth century, according to Mohammad Fadel, when judges in courtrooms were no longer qualified to partake in ijtihād, and political pressures encouraged the need for a sense of replicability within the courtroom. The result was the rise of a specific genre of legal writing known as the mukhtasar. These texts were often abridgements of longer more complicated texts of positive law, but instead of providing the various legal opinions on a single issue, they were furnished only with the preponderant ruling in the madhhab.[18] These texts became central in the adjudication of law, and also in the teaching of Islamic law. While they did not curtail legal development and disagreement, and even judges within the courtroom continued to use legal opinions not found in the texts, they did provide an important source of authority and stability.

 

The final method of containing legal plurality was the process of jadal or juridical dialectic disputation. Texts of jadal have long been recognized as constituting a unique genre of writing within Islamic law, but it is only recently that more comprehensive analyses of these writings have been undertaken. The function of these dialectic treatises was to inform and train jurists on how to eliminate multiple juristic opinions on a single issue to narrow the realm of existing probable (zannī) legal rulings. Jadal was therefore employed not as a mechanism of deriving more legal rulings, but to restrict the scope of probable rulings that jurists had already derived. While dialectic debates occurred between scholars of differing legal schools, they often occurred within a single school as well. The objective of these debates within a single school would be to isolate the strongest opinion. From this vantage point, jadal can also be seen as one mechanism that can be used to bring about the preponderant opinion of a school.[19]

 

Aside from these four mechanisms to reduce the degree of legal plurality within the madhhab, there were other mechanisms that also functioned within the legal schools whereby even the preponderant laws within a madhhab could be suspended. Jurists could invoke the doctrine of necessity (darūra), employ the doctrine of public reason (maslaha), leave the preponderant opinion for one more advantageous for the individual (istihsān), and take legal licenses which often meant following opinions of other schools (tattabu‘ al-rukhas), just to name a few. For every mechanism mitigating the plurality of the law, there was a mechanism to suspend the dominant ruling, and a methodology for continued legal derivation. The theological justification, and in fact, necessity, of multiple poles of authority, made it such that while jurists saw the need to mitigate legal plurality, there was no desire to fully expunge it.

 

 

A Difficult Balance

To understand the question of authority, one must therefore understand the theology of Islam which espouses a radical monotheism. This radical monotheism, coupled with the belief in the finality of prophecy with Muhammad, meant that for Sunnis at least, no single individual could assume authority after the death of the Prophet. Precluding a single individual authority meant that plurality, and by extension, probability, was accepted. As Islamic intellectual thought progressed, this resulted in the segmentation of disciplines and the specialization of various scholars. Legitimacy and authority was conferred upon these scholars on the basis of their knowledge, the methodologies which they adopted, their focus on Divine intent, and their dedication to textualism in intellectual endeavors. In this way, though there was no singular source of authority, within Islam it was possible to state with a certain degree of confidence if someone was authoritative and if their thought was legitimate or normative. Though these various poles of authority which existed in the classical period were able to provide structure, and coherence, having a polyvalent structure of authority is not without its dangers. On the one extreme, it can become too amorphous to be effective, and, on another extreme, it can be pushed to the point of one authority becoming authoritarian. Though resistance to the plurality existed in the classical world, the most pronounced contestation over it occurs in the modern period.

 


[1] Richard Bulliet, “The Crisis Within Islam,” The Wilson Quarterly, vol. 26, n. 1 (2002), pp. 11-12.

[2] Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame University Press, Notre Dame, 1989), p. 6.

[3] Talal Asad, “The Idea of an Anthropology of Islam,” Qui Parle, vol. 17, n. 2 (2009), pp. 1-30.

[4] The idea of religious and moral excellence as being a vision of legitimate rule is taken from Asma Afsaruddin. See Asma Afsaruddin, The First Muslims: History and Memory (OneWorld Publications, Oxford, 2007), Chapter 2.

[5] In the Saqīfa (lit. “roofed building”) of the Banū Sā‘ida a very hasty assembly took place between some companions of Muhammad – right after the death of the latter – in which they decided to elect Abū Bakr as the Prophet’s successor (Ed.).

[6] Translation taken from Asma Afsaruddin. See Afsaruddin, The First Muslims, p. 21.

[7] Ibid., pp. 19-25.

[8] Scott Lucas, “Where are the Legal Hadīth? A Study of the Mussannaf of Ibn Abī Shayba,” Islamic Law and Society vol. 15 (2008), pp. 283-314.

[9] Afsaruddin, The First Muslims, p. 78.

[10] Ibid., p. 79.

[11] Bernard Weiss, The Spirit of Islamic Law (Georgia University Press, Atlanta, 2006), Chapter 3.

[12] This theme as a foundation of Islamic law is also discussed by Bernard Weiss. See Weiss, The Spirit of Islamic Law, Chapter 5.

[13] For more on the development of the legal schools see George Makdisi, “The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court,” Cleveland State Law Review, vol. 34, n. 3 (1986), pp. 3-18; Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge University Press, Cambridge, 2001); Wael Hallaq, “From Regional to Personal Schools of law? A Reevaluation,” Islamic Law and Society, vol. 8, n. 1 (2001), pp. 1-26; Nimrod Hurvitz, “Schools of Law and Historical Context: Re-Examining the Formation of the Ḥanbalī Madhhab,” Islamic Law and Society, vol. 7,  n. 1 (2000), pp. 37-64; Christopher Melchert, The Formation of the Sunni Schools of Law: 9th-10th Centuries (Brill, Leiden, 1997); Norman Calder, Studies in Early Islamic Jurisprudence (Clarendon Press, Oxford, 1993); Bernard Weiss, “The Maddhab in Islamic Legal Theory,” in P.J. Bearman, Rudolph Peters and Frank Vogel (eds), The Islamic School of Law: Evolution, Devolution and Progress (Islamic Legal Studies Program, Harvard Law School, Cambridge, 2005), pp. 1-9.

[14] For the compilation of hadīth and the creation of a hadīth canon, see Jonathan Brown, The Canonization of al-Bukharī and Muslim (Brill, Leiden, 2007) and Jonathan Brown, Hadīth: Muhammad’s Legacy in the Medieval and Modern World (OneWorld Press, New York, 2018).

[15] Ahmed El Shamsy, The Canonization of Islamic Law: A Social and Intellectual History (Cambridge University Press, Cambridge, 2015).

[16] For a brief overview of this debate see Ahmed Fekry, Pragmatism in Islamic Law: A Social Intellectual History (Syracuse University Press, Syracuse, 2015), pp. 49-60.

[17] Wael Hallaq, “Was the Gate of Ijtihad Closed?” International Journal of Middle East Studies 16 (1984), pp. 3-41 and Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (Brill, Leiden, 1996), pp. 73-102.

[18] Mohammad Fadel, “The Social Logic of Taqlīd and the Rise of the Mukhtaṣar”, Islamic Law and Society vol. 3, n. 2 (1996), pp. 193-233.

[19] Wael Hallaq states: “In the Islamic context, juridical dialectic was viewed as an efficient means to reach the truth about a particular legal question… Minimizing differences of opinion on a particular legal question was of utmost importance, the implication being that truth is one, and for each case there is only one true solution. At least on a theoretical level—and presumably in practice—dialectic served to minimize legal pluralism in Islam.” Later scholars of jadal agree with Hallaq regarding the “truth-seeking” nature of jadal, but do not argue that it was intended to minimize legal pluralism. Larry Miller notes that jadal was a “valid method for attaining truth” and Walter Young characterizes it as a process of “truth seeking.” See Wael Hallaq, “A Tenth-Eleventh Century Treatise on Juridical Dialectic,” The Muslim World, nn. 3-4 (1987), pp. 197-206; Larry Miller, Islamic Disputation Theory: A Study of the Development of Dialectic in Islam from the Tenth through Fourteenth Centuries, unpublished dissertation (University Microfilms International, Michigan, 1985), p. 9; and Walter Young, The Dialectical Forge: Juridical Disputation and the Evolution of Islamic Law (Springer, Switzerland, 2016), p. 1.

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