Islamic law and classical theology

Opinions differ regarding the influence of theology on Islamic law. Fazlur Rahman stresses that the origins of theology and of law were distinct, and that even in the case of the Mu'tazila there is no evidence that their theology affected their positions in positive law.27 The profound influence of kalam was in classical legal theory; by contrast, in all legal schools, the content of positive law remained essentially untouched, regardless of the influence kalaam was wielding upon legal theory.

Schacht notes, however, that since the earliest times a close conjunction existed between the pursuit of theology and the eponyms of major schools of law: Abu Hanlfa, Malik, Shafi'i and Ahmad ibn Hanbal, all of whom were attentive to the theological issues of their times.28 Of these principal Imams, Abu Hanlfa and Ibn Hanbal were the most conspicuously engaged in theology. Abu Hanifa's theological writings exercised a lasting influence and culminated in the Maturidite school of Samarkand. The Hanafi scholars of Samarkand (Maturidi himself being only one of the most prominent among them) saw themselves as the adepts of Abu Hanifa, busy in the elucidation and elaboration of his teachings. Maturidi's synthetic theology rightly assigned him a distinctive position in the history of Muslim theology, but the Hanafi theological legacy of Samarkand only came to be designated ''Maturidite'' after a complex process that came to its conclusion centuries after Maturidi's death.29 It is worthy of note that Maturidi, like his mentor Abu Hanifa, was a master jurist, and wrote one of the earliest and most influential works on Hanafi legal theory, Indicants of the Revelatory Laws (Ma'akhidh al-Shara'i').

Kevin Reinhart argues that Islamic intellectual history must be seen as a holistic development. Law did not develop in isolation but was tightly integrated from the beginning with the emergence of kalaam, grammar, and qur'anic commentary, and he insists that it is ''impossible to grasp the origins, significance, and implications'' of the act classifications of Hanafa positive law outside the context of Islam's earliest theological debates.30 Similarly, Fazlur Rahman contends that Shafi'a's dialectic regarding hadith was oriented, not at legal scholars per se, but at early Mu'tazilites.31

Discussions of the role of reason in Islamic law often confuse the theological rationalism of kalaam, especially in its Mu'tazilite form, with ra'y (independent reasoning) in Islamic law. They mistakenly presume that Islamic rationalism in law was eclipsed by the ascendence of the ''grand synthesis'' of Shafi'a's legal philosophy. However, as Binyamin Abrahamov observes, all of the speculative theologians of classical Islam, whether they were Mu'tazilites, Ash'arites or Matundites, were equally rationalist. Each group considered ''reason the principal device or one of the principal devices to reach the truth in religion''. The differences between the three schools are not easy to discern, yet the disparity between them and their traditionalist32 rivals is clear.33 The systematic theology of the Matundites in particular excelled in its rationalist methodology and richness of thought; their purpose was non-apologetic and sought to demarcate Islamic theology as a distinct form of rationalism predicated upon unassailable proofs in reason, revelation and empirically verifiable truth.34

During the formative period of Islamic law, ra'y was a broad, speculative manner of reasoning associated with ijtihad. A number of pragmatic instruments of jurisprudence developed from it, such as analogy (qiyas), equitable discretion (istihsaan), preclusion (sadd al-dhara'i'), and general necessity (al-masalih al-mursala).35

Shafi'a's well-known rejection of legal sources such as istihsan, sadd-al-dharaa'i' and al-masalih al-mursala, and his emphasis on explicit texts, including the controversial ''solitary hadith'' (ahadith al-aahaad), offer, indeed, an interesting parallel to the voluntarism underlying the Ash'arite doctrines of free will and the nature of good and evil.36 But none of his positions was taken up by the other Sunm schools: even Hanbalism, for all its emphasis on textual deduction, continued to subscribe in limited fashion to Malika and Hanafa instruments of ra'y. Although arguably the most formalistic of the four Sunna schools, the Shafi'Is espoused a textually based doctrine of specific public interest (istislah) (as opposed to the non-textual masalih mursala of the Malikas).37 Like other Sunms, the Shafi'as elaborated much of their positive law in a pragmatic spirit. In the course of Islamic intellectual history, Shaafi'aI jurists proved themselves to be pioneers in the genre of legal maxims, arguably the epitome of Islamic legal realism.38 The rationalism implicit in ra'y and its later derivatives must not be confused with the metaphysical rationalism of classical Islamic theology. As Abrahamov observes, ''rationality turns to rationalism when reason is prior to revelation''.39 This was not the case with the rationality of early ra'y or its ancillaries in the Malikl and Hanafa schools. Their adamant adherence to pragmatic realism was, to take an expression from Abrahamov, a type of ''informal dynamism''.40 It derived its strength from a non-formalistic legal induction and pragmatic intuition based on a general understanding of the law and its well-established precepts and legal rationales.41

The historical relationship between Islamic legal theory and positive law has yet to be carefully studied. Sherman Jackson asserts that classical legal theory had little to do with positive law: ''In the end, however, legal theory remains standing as a monumental but fairly empty ruin whose authority can only be sustained through a reliance upon a never-ending series of 'ad-hoc adjustments' and 'makeshift apologies'.''42 The theologically informed speculations of Islamic legal theory had little effect on the positive law of the schools, even among jurists who readily subscribed to rationalistic theology and its application to legal theory. Indeed, the influence of legal theory on positive law was so limited that some insist that it is irrelevant to the study of the law's substantive content.43

The Mu'tazilites set the framework of Islam's classical theological debates. They seem also to have been the first to introduce speculative theology into Islamic legal theory. It is noteworthy, however, that most Mu'tazilites adhered to Hanafi positive law, even after many of their non-Mu'tazilite legal colleagues took theological positions antithetical to their own.

In response to the Mu'tazilite challenge, towards the beginning of the eleventh century Baqillani introduced extensive material from Ash'arite dialectical theology into legal theory. As a theologian, Baqillani was central to the development of the Ash'arite tradition, but his insistence upon the relevance of theology to law stood in sharp contrast to the approach of Ash'ari himself.44 Instead of envisioning an organic relationship between the two disciplines, Ash'ari had conceived of them as discrete fields of knowledge that should not trespass on each other.45

Not all legal theorists followed Baqillanl's lead. For Hanafi legal theorists, his theoretical positions often contrasted sharply with their own, although, like Baqillani, they were not Mu'tazilites. Non-Hanafls also took issue with Baqillani. An Andalusian contemporary, Abu'l-Walid al-Baji (d. 1081), preferred to exclude kalim from his writings on legal theory as much as possible. Another contemporary, the Shafi'i chief jurisconsult Abu Ishiq al-Shirazi (d. 1083), scrupulously avoided formal theological topics in his legal theory, making an exception only of those ideas which he found it necessary to refute. Another Shafi'i jurisprudent of the same period, Ibn al-Sam'ini, composed a work on legal theory with the explicit intention of avoiding the methods and terminologies of kalam.46

Nonetheless, the approach of Baqillani ultimately won wide acceptance, and most non-Hanafi works on Sunni legal theory that have come down to us are based on his work and refer to him as ''the Shaykh''. Ghazili accounted for the wide acceptance of Biqillini's type of theological speculation among later jurists and jurisprudents, via the curricula and pedagogical techniques of classical Islamic education. By Ghazili's time, most jurists were receiving a rigorous training in kalam during their formative period, and this inclined them to adopt the methodology of kalam and acknowledge the importance of its principal metaphysical concerns.47 Consequently, many later jurists and jurisprudents came to regard kalam as the principal underpinning of legal speculation, even to the extent that they regarded jurisprudence as a branch of theology.48

Ghazali argued that only a few theological doctrines were relevant to positive law, and he held that these did not go beyond the most rudimentary postulates of theological speculation.49 Among those questions that legal theory shared with kalam which were actually relevant to the law were preliminaries such as the standards for accepting or rejecting hadith, the utility of ''solitary hadith'', the definition and implications of the abrogation of one scriptural text by another, the semantics of commands and prohibitions, the question of whether or not commands imply their opposites, and issues pertaining to consensus (ijma'), analogy (qiyâs), and general assessments of legal reasoning.50

Accountability before God (taklif) was among the shared issues, but its relevance to law was different from its implications in kalam. From the standpoint of positive law, the definition of taklif had a bearing on the question of when Muslims were required to follow Islamic injunctions and when they were not. The juristic criteria for taklif were straightforward: Islam, reason and legal majority, the latter being determined by puberty or a minimum age. Thus, a non-Muslim, a person lacking the power of reason, and a child, were not required to adhere to the injunctions of the law.

The dispute over the relationship of taklif to revelation was one of the classical debates of Islamic theology. Like theologians, jurists also debated whether taklif was contingent upon the reception of revelation, although many legal texts made no mention of the issue.51 For jurists, the issue of taklif had a practical bearing upon the status of Muslims whose ignorance of Islam resulted from the absence of means for adequate instruction. For theologians, it raised other concerns, which, however consequential they appeared to theologians, were largely irrelevant to the practical concerns of the law. The theologians speculated on what existential questions (the existence of God, for example) a person just attaining taklif was morally required to reflect upon. It brought up the question of free will and the implications of the human capacity or incapacity to act freely for taklaif. The theologians wondered whether pure reason and the natural human disposition (fitra) were sufficient to make human beings morally responsible before God in the absence of revelation. They questioned whether non-Muslims who had no access to revelation would be punished in the next world and if God would hold them responsible for disbelief or deviation from the dictates of monotheism.52

The question of good and evil was a central concern of kalam. Was revelation required for their knowledge, or could they be apprehended in the absence of revelation by unaided reason? This issue found its way into legal theory. It was not, however, a significant problem for positive law, which generally continued, as before, to take rational considerations like general necessity as its basic premise.

One of the truisms of Islamic studies in the West until recently was the notion that the voluntaristic ethics of Ash'arite theology ultimately destroyed the rationalism of Islamic law as reflected in Mu'tazilite theology and the ra'y of early jurists. This misconception was rooted primarily in a confusion of legal rationality with the rationalism of speculative theology. It fails to take account of the history of positive law in Islam, and also neglects the ethical perspective of Maturidite theology, the dominant theology of the Hanafa school.

The theological problem of good and evil in Islam was hardly a new dilemma. Plato had asked whether God commands because He knows a thing to be good, or whether a thing is good because He commands it. Mu'tazilite theology supported the first proposition; the Ash'arites held to the second; the Matundites took a nuanced position between the two. Even the Ash'arite view, at least among significant representatives of the school, was not categorical. Shihab al-Dm al-Qarafa (d. 1285) contended that there were broad areas of agreement between all theological schools. The actual point of disagreement, in his assessment, concerned the merits and demerits of good and evil and the nature of reward and punishment in the hereafter.53

Although an Ash'arite, Juwaym held that the good and evil of human acts could be assessed on rational grounds, even though the acts of God Himself lay beyond the purview of human reason. Ghazala preferred this position, and Raazai is reported to have adopted it towards the end of his life.54 The Maturidite position was similar to that of the Mu'tazilites but did not accept the same primary corollaries which the Ash'arites rejected. Maaturaidite theology held that all analogies between God and the created world were false because of the utter discontinuity between the physical and the metaphysical planes. Yet such analogies were necessary for human thought; the Mu'tazilites, in their view, had placed exaggerated confidence in speculative reason at the expense of spiritual intuition (ma'rifa) and had drawn analogies between God and creation, especially regarding the issue of good and evil, where no such analogical correspondence was possible.55

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