Abstract and Keywords
This chapter presents a synthesis of discussions in the preceding chapters. It reviews the various classical schools of the fundamentals of usûl al-fiqh. It then proposes a new geography of the sources of Islamic law and jurisprudence.
My analysis of ash‐Shâfi'î's work (died 204/820) has shown how central his contribution has been and is in the field of the fundamentals of Islamic usûl al‐fiqh. He was the fi rst to sense that before elaborating and practicing fiqh, a framework must be established and a reading grid and methodology must be supplied to deal with scriptural sources. He therefore drew up rules, identified the relations between texts and enunciation contexts, and established relations with the social and human environment to be able to define norms to extract the effective causes (ߢilal ) of rulings. Starting from this work, he then determined the scope and limits of analogical reasoning (qiyâs) and, restrictively, of the use of legal preference (istihsân). In the third century after Hijrah (ninth century) ash‐Shâfi 'î who was Mâlik's pupil, contemporary with Abû Hanîfah's two main pupils Abû Yûsuf and ash'Shaybânî, and Ibn Hanbal's master, was at the center of the most heated and passionate legal debates. He realized that more and more scholars or schools seemed to take liberties with the texts in the name of very free analogical reasoning (qiyâs), of vaguely verifi ed consensus (ijmâ’ ), or of more or less justifi ed isti‐hsân. He therefore decided to lay out a strict framework so that the (p.78) very fundamentals of Islamic fiqh would not be lost or dissolved as a result of the increasing liberties scholars and political authorities were taking with scriptural sources. He returned to the founding texts and deductively established a methodology intended to set up a framework and prevent excessive legal elaboration.
Hanafî scholars did not have such a methodology established beforehand but they could rely on the whole corpus of legal opinions (fatâwâ) stated by Abû Hanîfah (died 150/767) and his pupils. They used them as a starting point to try to reconstruct their masters' various reasoning processes to identify the logic underlying their thought and the modalities of legal ruling extraction. This inductive method, although it came after ash‐Shâfi'î's deductive method, caused them to return to a practice that was historically closer to that of the Prophet and his Companions. In the tradition of the people of opinion (ahl ar‐ra'y), Abû Hanîfah had never hesitated to interpret situations, resort to qiyâs, or even project hypothetical situations ( fiqh taqdîrî). The most notable feature of his approach to fatâwâ is his constantly taking into account the environment, human realities, and customary practices that he and his pupils integrate into their stating of the law (as the Companions naturally did in Medina, in an environment they knew perfectly). Abû Hanîfah, summoning up istihsân to prevent a restrictive implementation of qiyâ s—contrary to ash‐Shâfi'î's position—left a vast fi eld open for the practice of critical and autonomous reasoning (ijtihâd ) based on his trust in his own understanding of the texts as well as in his knowledge of his society: this is particularly explicit in the field of trade, which he took part in professionally.
In the eighth century after Hijrah, ash‐Shâtibî (died 730/1388)— after al—Juwaynî, al‐Ghazâlî, and many others—revived and amplified the inspiration that had nurtured the founder (or reference scholar) of the legal school that prevailed in Granada at the time. Imam Mâlik ibn Anas (died 179/796) had lived in Medina and was even closer to the Companions and the following generation (tâbi'ûn) than Abû Hanîfah had been in terms of chronology. His strictness in the field of belief (‘aqîdah) and worship rules (‘ibadât) was associated with a confident approach to new situations about which no specific text had been revealed (masâlih mursalah). Mâlik never hesitated to look for the effective causes of commands and prohibitions (‘ilal, to analyze intentions beyond the literal meaning of texts and sayings (p.79) and to take into account the interest of society and individuals when no text was available about an issue (istislâh): for him the field left open to interpretation, to the exercise of autonomous critical reasoning (ijtihâd ), was in proportion to the tools available to the law scholar ( faqîh). Over five hundred years later, ash‐Shâtibî, using the same tools and performing a synthesis of numerous earlier works (by scholars from all legal schools), suggested an approach based on the higher objectives of law and jurisprudence (maqâsid ash‐sharî'ah) that, by its very nature, compelled scholars to return, because of the method's own requirements, to the natural attitude of the first Companions and the first jurisprudence specialists (fuqahâ’). The point was to think out the implementation of law and rulings according to the higher, universal objectives that entailed both the phrasing of the texts and the human and social contexts (al‐wâqi’ ) should be taken into account. We have seen how ash‐Shâtibî insisted on the process of extracting effective causes (‘ilal ) in inducing higher objectives, so that the latter could then orient the work of fuqahâ' in implementing rulings. The omnipresence of ijtihâd—both to understand and to implement texts—takes us back to the Companions' attitude and to the very meaning of the answer most naturally expressed by Mu'âdh ibn Jabal replying to the Prophet's questions. In Yemen, in a new context, an effort of autonomous critical reasoning had to be performed (when no text from the Quran or Sunnah was available) to find the correct legal answer respecting the objective, spirit, and letter of the message.
On closer study, it emerges that the further one goes back in time, the closer one gets to the Prophet and his Companions, the more one feels that scholars, less worried by their contemporaries' potential excesses, trusted their ability to understand the meaning of texts and the modalities of their implementation in their environment. What mainly determined the Companions' and early scholars' approach was their perfect knowledge of their society from within. Their natural attitude toward the texts implicitly presupposes such knowledge of the surrounding environment, enabling them to establish links, to devise adaptations, to “read ” the text diff erently. This knowledge was endogenous and was so taken for granted that it did not compete with the knowledge that was seen as needing to be acquired, and thus exogenous (i.e., that of scriptural sources). One cannot find any articulate reference to knowledge of the environment, except (p.80) as an adjunct to knowledge of the texts. Even so, any serious study of the legal scholars ' works, especially such early scholars as Mâlik or Abû Hanîfah, shows their competence in terms of the texts and the nature of the secondary sources (istihsân, istislâh, ‘urf, etc.) that they resort to; these primarily result from an implicit element in their dealing with texts that is their knowledge of their society or of the field of activity in which they state the law. The higher objectives school would not indeed constitute an original contribution if it did not include awareness of the social and human context in the description of its methodology itself, as we have seen. The question that now faces us once again is whether scholars have gone far enough in integrating the context into the elaboration of law and jurisprudence. Should not knowledge of the context, which was at first natural (for the Companions and early scholars) and then required as an implicit or indirect secondary reference (by the methodologies of the fundamentals of usûl al ‐fiqh), acquire a new status, since its knowledge has grown so complex and now requires so many and difficult parameters to be taken into account? And if so, should we not reconsider the position of the human and social environments in the geography of the sources of Islamic law and jurisprudence? Those are the questions I shall deal with in the next section of this book.