Filling in the Gaps: Authoritative Consensus and Text-Based Analogy

Jurists used several other sources and methods in addition to Qur’an and Sunna.

Consensus (ijmā῾) and analogy (qiyās) were developed as further key sources of law, though strictly speaking they are methods of law. However, both consensus and analogy utilize material sources as a basis for building law through the construction of consensus and analogies.²⁹⁰ In fact, however, in the second/eighth and third/ninth centuries, substantive legal questions were not separated from the methodological and theoretical

287 For a detailed debate of the linguistic and legal understandings of Sunna amongst the leading jurists in the 2/8^th century, see Ansari “Islamic Juristic Terminology” (1972), pp. 258-282; Hallaq, Origins (2005), p.46-53.

288 Chapter Two, V. 2.b.

289 Krämer/ Schmidtke, Speaking for Islam (2007), p. 4.

290 Weiss, “Islamic Law: Sources and Methodolgy of the Law” (2009), p. 319, refering to analogy.

questions of Islamic jurisprudence.²⁹¹ Often, they were jointly discussed in the context of a particular case.

Yet, in the ninth century, the question of whether it is lawful to base legal rules on the reasoned opinion and juristic preference of the jurists or whether they must be based either on Qur’ān or Sunna or on analogical conclusions drawn form them, leads, for the first time in the history of Islamic jurisprudence (fiqh), to a separation between the material and the methodological and theoretical questions of the legal rules and to a rearrangement of the legal material. The first jurist to make such a distinction into legal material and legal method is Shāfi῾ī (d. 820), who in his monograph Risāla (Epistle) systematically develops this distinction.²⁹²

According to classical Islamic theory, consensus (ijmā῾) is a further, third source of Islamic law. In the formative period, it can be seen that consensus is referred to by all schools of law of that time, though with different takes on whose consensus should be legally relevant.²⁹³ Some argued for the consensus of all Muslims, others for the scholars of Medina and Kufa (as the cities that were home to the most prominent jurists of the time).²⁹⁴ Others yet argued that the four caliphs and the family of the Prophet shall be included.²⁹⁵ Others yet, wanted the community of scholars of law only²⁹⁶, excluding the scholars of theology as they were considered incompetent in the field of legal reasoning.²⁹⁷ Until the third/ninth century, consensus remained a vague inclusion/exclusion. The notion of consensus that eventually prevailed was the one of the community of legal scholars.

The generally held aim of consensus was that it transformed opinion into certainty, a tentative construction into a final conclusion.²⁹⁸ As soon as an opinion was shared by all living qualified scholars of the law, the opinion was considered binding law for all.

While no individual scholar could acquire certainty based on personal interpretive effort, the community consensus of scholars agreed that their concerted efforts could produce a

291 Johansen, “Islamic Law: Overview”, (2009), III, p. 316.

292 Johansen, “Islamic Law: Overview”, (2009), III, p. 316.

293 Ansari, “Islamic Juristic Terminology” (1972), p. 282-287.

294 Hallaq, “On the Authoritativeness of Sunnī Consensus,” (1986), p. 430.

295 Masud, “Ikhtilaf al-Fuqaha” (2009), p. 77.

296 See Ansarī, “Islamic Juristic Terminology” (1972), p. 286.

297 Johansen, “Islamic Law: Overview”, (2009), III, p. 315.

298 Weiss, “Islamic Law: Sources and Methodology of the Law”, (2009), III, p. 319. On the formation of consensus Hallaq, Origins (2005), pp. 150-177.

firmer result than their separate endeavors as individuals.²⁹⁹ In this way, consensus (ijmā῾) brought about an epistemic transformation without actually becoming a material source of law.³⁰⁰ In this sense, consensus as sharing the risks of uncertainty in law is a theme that also affects adjudicative law-making of judge and jurisconsult: When both concur in opinion, a joint consensus is established that should not be violated.³⁰¹ However, when they dissent, the question of trumping authority becomes relevant.

While Sunnī legal tradition established the authoritative texts of Qur’ān and Sunna as primary sources of normativity, it also authorized the turning to nonscriptural sources such as legal reasoning. Precisely because there largely was legal consciousness for the need of legal reasoning beyond authoritative texts – the core issue of conflict of authorities – its undertaking was sought to be regulated.

There was particularly heated concern regarding the use of legal reasoning as a further source of law. At first, scholars discussed the legal implications of the Qur’ān against the background of local custom and discretionary opinion (ra’y).³⁰² Legal reasoning was initially based mainly on common sense and practical considerations, and applied as such in adjudication.³⁰³ However, from the middle of the first century A.H. (ca. 670 C.E.), the opinion emerged that legal rulings should be based not only on the Qur’ān and human reasoning, but also on the Prophetic Sunna. ³⁰⁴ Thereby, Islamic legal norms were anchored, where possible, in divine revelation and less in human reasoning, thus enhancing the divine character of Islamic law to the furthest extend possible. Eventually, this idea dominated Islamic law: From then on, interpretive efforts (ijtihād) were no longer allowed if there were clear Qur’ānic texts or ḥadīth.³⁰⁵

The discussion then focused on the type and scope of reasoning that was permitted. The rationalists (to whom we turn shortly) claimed that all sorts of discretionary reasoning (ra’y) were allowed, while the other camp, the traditionalists, opposed human

299 Weiss, “Islamic Law: Sources and Methodology of the Law”, (2009), III, p. 319.

300 Weiss, “Islamic Law: Sources and Methodology of the Law”, (2009), III, p. 319.

301 On consensus between judge and jurisconsult in the writings of Khaṣṣāf, see in this Chapter Two, V.

2.b.

302 On the use of discretion in early adjudication in the first century of Islam, see Hallaq, Origins (2005), pp.44-46; 52-54.

303 See Hallaq, Origins (2005), p. 54.

304 Peters, “Individual Effort of Legal Reasoning”, Oxford Encyclopedia of Legal History (2009), III, p.

224.

305 Discretionary opinion (ra’y) and legal reasoning (ijtihād) were technically speaking in many cases overlapping, and at least interconnected, Hallaq, Origins (2005), p. 54.

interpretation of the revealed texts, arguing that their divine character becomes compromised. In a society committed to the authority of revelation, the use of reasoning in a law which sought religious legitimacy was a sensitive matter.³⁰⁶

To meet the critique of an undefined and thus unrestricted use of legal reasoning, the theory of analogy (qiyās), which represents a gradually successful attempt to restrict and set formal limits to the use of discretionary opinion (ra’y), was elaborated. ³⁰⁷ Eventually, the majority of scholars adopted the opinion that independent effort of legal reasoning (ijtihād) should be permitted as a form of analogical reasoning (qiyās).

Ijtihād is derived from two words: juhd (exertion of effort or energy) and jahd (the forbearance of hardship, namely, striving and self-exertion in any activity that entails a measure of hardship). ³⁰⁸ It means the all-encompassing expenditure of effort to arrive at the correct judgment, which can be by inferring a ruling or a juristic and linguistic theory.³⁰⁹ Differently put, ijtihād is “the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of the Sharī῾a from their detailed evidence in the sources”.³¹⁰ Those jurists that were qualified to exercise ijtihād and thereby produced new law going beyond the text were called mujtahid, a jurisprudent of the highest rank. In opposition to those who would (merely) conform to or imitate someone else’s legal opinion (muqallid).

In spite of early normativity and practice of legal reasoning (ijtihād), the extent to which it could be used became a major question in the first centuries among scholars. Ijtihād emerged from the consciousness that if the texts allow for multiple interpretations or there is no text which refers directly to the legal issue in question, the qualified jurist has to exert his own independent reasoning (ijtihād). Ijtihād emerged as a central and much disputed concept within the Islamic legal system, and proved to be key for the normative elaborations of judicial consultation.

And yet, while there emerged recognition that authoritative texts did not cover all legal problems and interpretive reasoning (ijtihād) was in principle agreed upon as a method to

306 Lambton, State and Government (1981), p. 8; Ansari, “Islamic Juristic Terminology” (1972), p. 288.

307 Lambton, State and Government (1981), p. 9.

308 Ibn Manzur, “Juhidah”, Lisān al-῾Arab, II, pp. 133-34.

309 Kayadibi, “Ijtihād by Ra’y” (2007), p. 75.

310 Kamali, Principles of Islamic Jurisprudence (2003), p. 469.

derive new law, interpretive reasoning was criticized as a concept way too wide, with little connection to the text. This is why critics advocated for analogy as a text-based form of interpretive legal reasoning. Analogy should define the contours of ijtihād. This meant that cases for which there was no clear text should be solved by applying a text giving a ruling on a similar but not identical case, or by expanding the application of a text on the ground that the underlying ratio legis (῾illa) is applicable to the case. In the absence of text or consenus, the method of analogy could still be based on text, refering analogy back to the rationale (῾illa) as entailed in other texts. This is the crucial difference between ijtihād and analogy- while the latter is based on text, the former is not. ³¹¹

The first one to elaborate this doctrine was Shāfi῾ī (d. 820). His synthesis between what became called “the traditionalist” (more text orientated) and the “the rationalist” (more reason orientated) positions gained popularity (around the 10^th century) but was nevertheless challenged by numerous jurists. Many scholars allowed different forms of reasoning besides analogy. The Ḥanafīs Abū Yūsuf and Shaybānī in particular claimed that solutions based on strict analogical reasoning in a specific case could be abandoned in favour of a doctrine that might be formally less systematic or rigid, but more practicable and appealing to commonsense or in favour of considerations of equity and justice. ³¹² Principles that allowed for a more practical ruling or a ruling more in line with public interest were upheld. The Ḥanafīs called this istiḥsān (preference) or istiṣlāḥ (regarding something to be in the public interest). These last principles were much critized by the Shāfi῾īs and they reflect Shāfi῾ī’s fears of judicial activism, adjudication beyond authoritative texts and methodology.