The jurists’ law: a new framework for an inquiry into Muslim legal thinking

 

This is a summary of Islamic law’s basic features which proposes a new conceptual framework for understanding historical sources on juridical thinking (fiqh) and legal practices. It benefits from a chronological approach to the legal rulings that Muslim law schools developed, commented on, and transmitted from the 4^th/10^th to the 13^th/19^th centuries. Considering also documentary sources, this new framework was conceived and published in my book Recht und historische Entwicklung der Scharia im Islam¹.

This text outlines a historical approach to the study of Islamic legal rules and how they developed throughout Muslim history. By doing this, we will better understand the functioning of fiqh (legal thinking) within Islamic legal systems – what we may call “law” – and fiqh’s importance in premodern Muslim societies. In what follows, and after a brief state of the art, I prepare the ground for a “chronodiastasic” (time-dimensional) approach to applied “law” (see below) through the study of fiqh-rulings from four perspectives:

1) law rules,

2) as part of a rule system (casuistry),

3) their application (system of law) and

4) legal change in sacred law.

Former approaches

Earlier Western studies commonly used “Islamic law” as a synonym of “Sharia” and focalized on the Qur’an and the Prophetic Traditions as the main containers of the rules of law (i.e. Goldziher). And even when the latter’s authentic transmission was partially contested, it was considered crucial to study and understand its legal application (i.e. Schacht, Motzki). In such a view, the subsequent Muslim legal thinking (fiqh) and its lawbooks were perceived as a kind of posterior by-product that helped to fill the legal gaps left by the so-called “prophetic law” entailed in the Qur’an and the Traditions. The same perspective considers that Muslim legal thinking fossilized after its “formative period” and became later detached from legal practice, serving only as a kind of “religious deontology”. Research on “Islamic law” shared these views and therefore when observing the functioning of Islamic courts, some authors did not see the judges refer to Qur’an and Tradition, nor to law schools’ major compendia, and inferred that Islamic law was not an applied law. According to this, the judges were only busy to attend social demands, but not applying legal rules.

In the 1980ies, a renewed research interest, based on newly available sources, underlined the practical aspects of the responsa-literature (fatāwā), notarial manuals, and commentaries of pre-modern Islam (Powers, Hallaq, Johansen). The use of legal hermeneutics (uṣūl al-fiqh) was then understood as the (theoretical) method of finding rules for “new” social and economic situations, the sample situations that hadn’t been regulated by the law (Weiss, Kamali). Let me underline that this view is in line with the Muslim modernists’ paradigm that disconnects contemporary law from the juridical methods used by the so-called “traditionist law schools”, which had lost their former importance more than a century ago.

This said, the Muslim juridical law tradition, preserved in thousands of manuscripts, texts, and documents throughout centuries all over the world, constitutes one of Islam’s major cultural heritages. To better understand these sources, historical research on the jurists’ law during the 8^th to 19^th centuries needs new inquiries. Also, the functioning of the jurists’ law should be deeply analysed according to its proper development, step by step, century after century. These new studies should also be free from external colonialist and internal modernist or Salafist interests in any contemporary interpretation of “Islamic laws”.

The following methodological proposal illustrates how premodern Muslim jurists conceived “Islamic law”. The main difference between the perspective of this approach and former studies is that here I consider the functioning of law in Muslim societies based on the real and authentic relics of its activity, the legal documents, and their eventual link to the juridical literature on substantive law and legal hermeneutics of their time.

Four perspectives in a new framework

1) Law rules

The law rules were the crucial part of an extensive and diversified casuistic rule system that was considered as emanating from the Sacred Law – Qur’an and Prophetic Tradition. This differs considerably from today’s prevailing notions of Sharia. Legal casuistry means that the law covers different cases, each of them with specific rules, sharply distinguishing its legal consequence from other cases. The jurists’ law justified each law rule individually as authoritative within the law schools’ doctrine and its long-term shared juridical tradition. In casuistry, the factual importance of any rule is determined by its difference from other rules that might be applied to the same real-case situation. For example, the fact of “taking a thing without having the right to do so” may be qualified as “stealing” and therefore punished by the amputation of a hand, or it could be understood as “usurpation”, having only the obligation of the restitution of the thing to its original owner. In economics, the casuistic rule system, justified by legal hermeneutics (uṣūl al-fiqh), covered a huge variety of transactions linked to property and usufruct rights, loans, fixed salaries, and risk capital.

In Islamic history, a stable system of casuistic law rules was transmitted within professional guild law schools since the 4^th/10^th century, and not earlier. Thereafter, numerous law books systematically cite the same set of law rules within a common chapter structure that did not change over centuries. Applying these rules of the jurists’ law in a responsa (fatwā) was applying Islamic law by respecting the norms of juridical casuistry and not, as many argued, by using a “legal device” (ḥīla) to circumvent a general interdiction of risk and usury.

Casuistry, therefore, is crucial for a better understanding of the functioning of Islamic thinking in premodern times. It is fundamentally different from today’s prevailing approach to Sharia (Islam’s sacred law) and its relatively few rules imputed directly from sacred sources, Qur’an, and Prophetic Tradition, that are treated as generally valid because they are holy laws. The diastasic framework for inquiry then asks how jurists of each period cited and interpreted Qur’anic and prophetic narratifs from the perspective of their rule-content (categories being i.e. abrogated or abrogating, a general or a specific statement, in a “real” or a “metaphoric” sense).

2) Evolution of the rule-system

For centuries, the jurists’ law developed as a self-generic “autopoietic” system of knowledge: Scholars based their understanding of the law on what generations before them had taught and written, and they also transmitted this knowledge to their successors. A close reading of juridical texts from different centuries illustrates fiqh as a cumulative system of knowledge that progressively reaffirms and sharpens its own assumptions. This means that the same words acquire a precise technical meaning that allows for differentiating concepts and for formalizing the general approach to Islam’s sacred normativity.²

The initial – and perduring – assumption within the jurists’ concept of sacred law was the authority of the Prophet’s example, mirrored in the early tradition and community practices. It emerged at a time when the caliphs’ role as spiritual leaders and lawgivers to the Muslim community had progressively faded. In the early days, collecting and transmitting traditions was first a pious endeavour to keep the Prophet’s memory alive, but it did not have the juridical implications that the canonized written collections acquired from the 3^rd/9^th century onwards. ³

Since the 2^nd/8^th century, whenever the jurists’ legal thinking emerged and referred to Islamic tradition by side-lining caliphal law, such traditions were not per se a rule of law: Juridical opinions diverged considerably during this “formative period”, not only on secondary matters but also on central points that became the backbone of school doctrines. Only since the 4^th/10^th century did juridical thinking become the backbone of scholarly traditions that transmitted a fixed corpus of legal rulings within the professional corporation of scholars (guild-schools, according to Melchert). Schools referred to their eponyms’ dicta that became authoritative – within the school’s casuistic set of rules. By this development, a jurists’ law evolved with its own set of legal rulings that replaced the caliphal law-giving monopole in those fields that are covered by fiqh’s casuistry.

During the late 10^th and 11^th centuries, Muslim jurists searched for a rule legitimation and formalized their hermeneutic instruments to derive from sacred fundaments (uṣūl al-fiqh) in a parallel development, with theological and juridical concerns. Following this hermeneutical shift as the basis of a jurists’ law, during the 5^th-6^th/11^th-12^th centuries, the law schools “purified” the canon of transmitted rules accordingly by rejecting certain opinions and accepting others with a renewed reference to the “fundaments”. This way of justifying juridical rules paved the way for sharpening the “hermeneutics of fundaments”, now divided into eternal and circumstantial indicants, that finally led to consider the jurists’ law-corpus with its aggregated rulings as “purified Sharia” from the 7^th/13^th century on.⁴ In this later jurists’ law based on legal hermeneutics, Qur’an and Sunna served at various levels as sacred indicants that legitimize shariatic rules, which aggregate eternal prescriptions and circumstantial elements within legal casuistry, and therefore, they were not mere direct sources of verbatim rulings, but much more. By doing so, legal hermeneutics justified the norms of longtime existing juridical casuistry and their meaning in context – not the sanctity of single rulings.

A juridical development by steps, which used the same Arabic expressions in slightly varying contexts and with sharpened definitions, affects how the sources are read. We should never forget their temporary context and especially avoid to project back later definitions to earlier texts as if the meaning of words had not changed.⁵ This is a major requirement emerging from a chronodiastasic framework for inquiry.

3) Law application

Muslim jurists, the fuqahā’, were the “primary actors” and bearers of the jurists’ law. They acted as judges (qāḍī, pl. quḍāt) within institutionalized law courts, as teachers of the law, or as legal advisors (muftī), who interpreted contemporary cases with their particularities. These roles (judge, teacher, and advisor) developed parallel to the doctrinal evolution of fiqh as law. A particular feature of the qadi-jurisdiction was the use of notarial documents that were signed by “honourable witnesses” and eventually orally confirmed by these witnesses to constitute legal proof upon which the qadi based his sentence. In principle, qadis were bound to follow the rulings of their own law school. Judicial documents describe the actions and results of court cases but generally do not cite the juridical reasoning for such decisions. The work of a qadi was conditioned by the – changing – frame of Islamic normativity. Only with an exact knowledge of the detailed juridical casuistry in each case, a historian can determine to which extent a qadi “followed the law” – or not. Knowing a small, limited set of “sacred laws” is insufficient for answering this question.

The jurists’ law, as applied by qadi courts from the 4^th/10^th century on with its particular features and rule-finding mechanisms, successively acquired sanctity as a closed rule system that was based on the interpretation of laws, considered to be divinely approved well beyond human legislation. With juridical casuistry becoming formalized as sharia-law since the 7^th/13^th century, historians need to distinguish between a) sacralized laws (aḥkām šarʿiyya) and their constituent parts (arkān) that consider circumstantial real-world aspects, and b) the interpretation by individual jurists in specific cases. Within the regime of taqlīd such responsa (fatāwā) acquired a different kind of legal authority and were accessible in voluminous compendia.

However, the jurists’ law never covered all aspects of legal life in Muslim societies. Historically, it became part of different legal systems that integrated Sharia law into a broader legal order, be it complementary to siyāsa-law (Mamluks), to qānūn (Ottomans), or the particular law of Muslims in a multi-ethnical environment (Moghul India), to name just a few examples.⁶ The chronodiastasic frame links the juridical tradition (teaching, textual manuals and hermeneutics) of each time with its contemporary legal practices (as depicted in texts and documents).

4) Legal change in sacred law

Within the jurists’ law, a legal change occurred at different levels: a) rule selection, b) renewed juridical argumentation, and c) with real cases.

a) The sharpening of rule definition and indicant theory was formalized in the process of “prepondering” (tarǧīḥ). By this method, jurists argued that an existing rule was “applicable” (muʿtabar) at their own time, without being obliged to reject as invalid all other rulings, similar or opposing, that belonged to the school’s tradition. Voluminous commentaries documented the applicable rule system of each law school in their time.

b) Jurists composed a “treatise” (risāla) with in-depth argumentations on specific topics. These could either establish a new case by distinction from existing ones and by extending casuistry or argue against a preponderant rule interpretation of the law.

c) An imminent reaction to the changing world and new challenges was responsa (fatwās) to a question in judicial cases or to hypothetical problems. As said before, they became authoritative within the taqlid system – in addition to the school’s set of sharia laws.

We may sum up these four perspectives as follows: The jurists defined what was “Islamic law” at different levels both in theory and in practice. And legal casuistry was their major method to expand the law and to connect contemporary interpretation with the sacred law rules.

The chronodiastasic approach to Islamic law

Given the importance of “time” for the long-term phenomenon of Islamic law, I propose the time-dimensional “chronodiastasic”⁷ approach that scrutinizes all known elements for one specific period’s “system of law”, such as legal theory, practice, institutional and social aspects. This new perception of the jurists’ law at different times counters more conventional approaches that focalize on one or more of these aspects as separate objects of interest throughout history, like theory, or practice, or legal rulings of “Islamic law”. A holistic chronodiastasic study however interlinks these aspects as interacting in a specific “legal system” from the time prism: with the strictest possible consideration to chronological layers and to how contemporary actors and spectators had considered “Islamic law“, its institutions, and its functioning. In such a perspective the sources of juridical thinking (fiqh) fall into two components: a) those dealing with contemporary matters, confronting the issues of applied law (above points 1 and 4), and b) the legitimizing preservation of, and recourse to, the long-lasting doctrinal juridical tradition of “Islamic normativity” (point 2). Each requires a different analytical approach when linked to the time of their production and their posterior citation (point 3).

Following the chronodiastasic approach we make the following basic distinction for the study of textual sources dealing with Islamic normativity in historical context: Muslim juridical literature that was composed under the jurists’ law during the 4^th-13^th/10^th-19^th centuries, its earlier development as a juridical “knowledge system” under the caliphal legal order in the 2^nd-3^rd/8^th-9^th centuries, and thirdly literature that was composed after the jurists’ law from the second half of 19^th century until today.

1. Christian Müller, Recht und historische Entwicklung der Scharia im Islam, De Gruyter: Berlin 2022 [↩]
2. On uṣūl al-fiqh and its evolution see C. Müller, Recht und historische Entwicklung, 214-238. [↩]
3. For Ibn Surayǧ’s (d. 306/918) remark on transmitters who had collected every transmission and event but failed to facilitate guidance according to the valid sunna practices and prescriptions (sunan wa-aḥkām), see C. Müller, Recht, 210, note 912. [↩]
4. C. Müller, Recht, 238ss., based on numerous literary and documentary evidence. [↩]
5. See also C. Müller, “Islamic law revisited: rules and rule-systems from a chronological perspective”, in C. Lange et alii (eds.) Body, Identity and Society in Islam. Proceedings of the 30th UEAI conference, Orientalia Lovaniensia Analecta, Leuven (forthcoming). [↩]
6. C. Müller, Recht und historische Entwicklung, chapter 2 “Historische Rechtsordnungen”, p. 130ss. [↩]
7. chronodiastasic from Latin “time” (chrono) and from Greek “dimension” (diastasia [↩]

---

---