The Diversity of Juristic Opinions ...

Egypt's Dar Al-Iftaa

The Diversity of Juristic Opinions vs. the Extremists' Myth of Holding the Ultimate Truth

The Diversity of Juristic Opinions vs. the Extremists' Myth of Holding the Ultimate Truth

The purpose of Shari'ah is simply to serve and achieve the well-being and the well-fare of people. Achieving this purpose needs some indicators or adilla (sing. dalil) which guide the scholastic efforts in Islamic scholarship to determine the interpretation and modes of application of God's divine law (Shari'ah). In Islamic legal theory, the dalil, the indicator, mark, guide or evidence is a fundamental building block of the search for the divine will and guidance. As a sign of God's mercy and compassion, God created or enunciated numerous indicators serving as guidance to human goodness, well-being and ultimately divine will. Moreover, God ordained that human beings exert a persistent effort in investigating the divine indicators or the evidence of God's will so that the objectives of Shari'ah may be fulfilled. The most obvious type of indicators is an authoritative text such as the Quran but Muslim jurists also recognized that God's wisdom is manifested through a vast matrix of indicators found in God's physical and metaphysical creation. Hence, other than text, God's signs and indicators could manifest themselves through reason and rationality, intuitions, and human custom and practice.

Most indicators are divided in to rational proofs and textual proofs. As to rational proofs, jurisprudential theory further differentiated between pure reason and practical or applied reason. Foundational legal principles and legal presumptions, such as the presumption of innocence or the presumption of permissibility and the presumption of continuity are derived from pure reason. Interpretive tools such as qiyas and istihsan and hermeneutic categories are all instances of applied or practical reason.

In Islamic jurisprudence, the diversity and complexity of the divine indicators are considered part of the functionality and suitability of Islamic law for all times and places. The fact that the indicators are not typically precise, deterministic, or unidimensional allows jurists to read the indicators in light of the demands of time and place. So for example, it is often noted that one of the founding fathers of Islamic jurisprudence, al- Shafi'i had one set of legal opinions that he thought properly applied in Iraq but changed his positions and rulings when he moved to Egypt to account for the changed circumstances and social differences between the two regions. The same idea is embodied by the Islamic legal maxim: "It may not be denied that laws will change with the change of circumstances".

One of the most important aspects of the epistemological paradigm on which Islamic jurisprudence was built was the presumption that on most matters the divine will is unattainable and even if attainable no person or institution has the authority to claim certitude in realizing this will. This is why the classical jurists rarely spoke in terms of legal certainties. Rather, as is apparent in the linguistic practices of the classical juristic culture, Muslim jurist for the most part spoke in terms of probabilities or in terms of the preponderance of evidence and belief (ghalabat al-zann). As the influential classical jurist al- Juwaini stated: “The most a mujtahid would claim was a preponderance of belief and the balancing of the evidence. However, certainty was never claimed by any of them. If we were charged with finding the truth we would not have been forgiven for failing to find it”.

Muslim jurists emphasized that only God possesses perfect knowledge, human knowledge in legal matters is tentative or even speculative; it must rely on the weighing of competing factors and the assertion of judgment based on an assessment of the balance of evidence on any given matter. Thus Muslim jurists developed a rigorous field of analytical jurisprudence known as tarjih which dealt with the methodological principles according to which jurists would investigate, assign relative weight, and balance conflicting evidence in order to reach a preponderance of belief about potentially correct determinations.

Contemporary fundamentalists and essentialistic orientations imagine Islamic law to be highly deterministic and casuistic, but this is in sharp contrast to the epistemology and institutions of the Islamic legal tradition that supported the existence of multiple equally orthodox and authoritative legal schools of thought, all of which are valid representations of the divine will. Indeed, the Islamic legal traditions were founded on markedly pluralistic, discursive and exploratory ethos that came to be at the very heart of its distinctive character. Thus one of the foundational ideas of Islamic jurisprudence, variously attributed to the eponyms of the Hanafi and Shafi’i schools of law, Abu Hanifa and al- Shafi’i asserted: “We believe that our opinions are correct but we are always cognizant of the fact that our opinions may be wrong. We also believe that the opinions of our opponents are wrong but we are always cognizant of the fact that they may be correct.” This was much more than a piestistic declaration of humility or fair-mindedness. Muslim jurists believed that as long as a jurist exerted due diligence and was not negligent in searching the indicators and investigating the pertinent evidence, the resulting determination had an equal claim of legitimacy and authenticity. In fact, Malik ibn Anas, eponym of the Maliki school of thought, argued that different jurists have developed various juristic methods and determinations in different parts of the Muslim world and that it would be wrong to try to streamline or force the various methods into one. Moreover, Malik bin Anas resisted the efforts of the Abbasid Caliph al- Mansur to impose the legal rulings of Malik as the uniform law of the land, arguing that no one, including the state, has the authority to sanctify one school of thought as the true law of God while all others are denounced as corruptions or heresies.

Similar efforts by the Abbasid Caliph Harun al- Rashid and other rulers to have the state become the sole representative of God’s will were defeated as well. According to classical legal reasoning, no one jurists, institution or juristic tradition may have an exclusive claim over the divine truth and hence the state does not have the authority to recognize the orthodoxy of one school of thought to the exclusion of all others.

One of the clearest expressions of the philosophical foundations of this position was that made by the Shafi’i jurist al- Juwayni in writing: “It is as if God has said to human beings, “My command to My servants is in accordance with the preponderance of their beliefs. So whoever preponderantly believes that they are obligated to do something, acting upon it becomes My command.” Al Juwayni goes on to explain that God’s command to human beings is to diligently search the indicators and weigh the evidence, and God’s law is suspended until a human being forms a preponderance of belief about the law. At the point that a preponderance of belief is reached, God’s law becomes in accordance with the preponderance of belief formed by that particular individual. In short, therefore, if a person honestly and sincerely believes that such and such is the law of God then as to that person, that is in fact God’s law. Nevertheless, this philosophy did not mean that Muslim jurists accepted legal relativism or even indeterminism in Shari’ah. As noted above, Shari’ah was considered to be the immutable, unchangeable, and objectively perfect divine truth. Human understanding of Shari’ah, however, was subjective, partial and subject to err and change. While Shari’ah is divine, fiqh (the human understanding of Shari’ha) was recognized to be only potentially so, and it is the distinction between Shari’ah and fiqh that fueled and legitimated the practice of legal pluralism in Islamic history.

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