Islamic History, part 28: Islamic legal terms

Islamic History Series

If I listed all the caveats I should list about this episode of our series, this post would be nothing but caveats. Suffice it to say that there are lots of people who spend their entire lives pursuing a study of Law, and lots of people who spend their entire lives pursuing a study of Islamic Law in particular, and I am not either of those kinds of people. I can’t give you a detailed explanation of the inner workings of Shariʿah and fiqh, and what’s more, I wouldn’t want to try, and what’s even more, you wouldn’t want to read it because I’m not remotely qualified to write it. But it is nearly impossible to understand Islam or Islamic history without at least being familiar with the basics of the law. So we have a conundrum.

I’m proposing to try something a little different here, by starting off with a bit of a primer in the form of a few key terms that will come up over and over again, and then to follow that in the next post with a relatively brief look at the early historical development of Islamic Law, chiefly through biographical sketches of the founders of the four main surviving legal schools within Sunni Islam. Note that this will primarily be a Sunni discussion, because it was in Sunnism that the idea of the Law became separate from the person who was leading the community. For Shiʿa, at least in this period, the Law was disseminated by the Imam, whomever you believed that to be, but as much as the Sunni Caliphs might have liked to have that kind of authority, and as much as they might have tried to assume that authority for themselves, in the end they really never got it.

So, then, let’s get started with some key legal terms:

Shariʿah: OK, I realize that starting a post that purports to explain “Islamic Law” with a definition of “Shariʿah” is kind of bullshit. But if you take nothing else away from this post, it should be the knowledge that when people (at least the ones who have a basic familiarity with the subject) talk about Shariʿah, they are not talking about a fixed legal code like the Code of Hammurabi or the Roman Corpus Juris Civilis. Sure, there are many laws, or the bases of laws, contained in the text of the Qurʾan, but these aren’t listed systematically and the Qurʾan is so much more than simply a legal codex. Consequently, to say there’s been a lot of room for interpretation in the development of Islamic Law, particularly early on, is a massive understatement.

The word “Shariʿah” derives from a root (SH-R-ʿ) that also conveys a meaning like “commence,” as in to commence upon a path; the same root gives us the word shariʿ, which means “street.” “Shariʿah,” then, could be described as the way to start oneself on the right path in life. The reason I’m distinguishing a little between “Shariʿah” and “Islamic Law” is because “Shariʿah” really means the way that a person can fulfill al-Sharʿ, or the Divine Law, while I’m using “Islamic Law” to describe the whole field of study whereby scholars have attempted to delineate what that way looks like and how a person might follow it.

Fiqh/Faqih: Fiqh means “jurisprudence,” or the study of legal theory and principles. It’s through fiqh that scholars try to figure out what “Shariʿah” is and how people can follow it. The effort to study fiqh, and the tools used in its study, can be referred to collectively as usul al-fiqh or “basis of jurisprudence.” A person who studies fiqh is called a faqih. The historical figures we’ll be talking about later on could all be classified as faqihs (or fuquha if you want to use the Arabic plural), though they were all polymaths who could easily be classified as philosophers, social scientists, or even theologians as well. For Shiʿa, particularly Twelver Shiʿa who believe their Imam is no longer among us, a faqih is someone learned enough to stand in on behalf of the Hidden Imam and interpret Islamic law, a principle known historically as wilayat al-faqih or “guardianship of the jurist.” In post-revolutionary Iran, Ayatollah Khomeini called the system of governance the Vilayat-i Faqih, and he interpreted that principle to mean that “guardianship” in the modern nation-state means “governance.” Faqihs relied on the work of muftis (see below) in crafting their legal treatises, which would then be studied by judges (also below) and other muftis in turn.

Madhhab: When the earliest scholars were thinking about the law and sharing their thoughts with other people, they attracted followers. In several cases those groups of followers coalesced into formal “schools” of legal thought, called madhhab (which also means “going,” keeping with the spirit of Shariʿah as a path). We’ve actually already talked about a couple of groups, like the Kharijites, that some Islamic thinkers have referred to as madhhabs, but nowadays Sunnis generally follow one of four madhhabs: Hanafi, Maliki, Shafiʿi, and Hanbali, the founders of which we’ll talk about below. The various Shiʿa sects are sometimes also said to be madhhabs, though this isn’t a universal interpretation.

Ijtihad/Mujtahid: Though it comes from the same root as jihad, don’t confuse the two. Ijtihad means “work diligently” (hey, for all its modern baggage, jihad means “struggle”), and in this context it means working diligently to derive new legal theory based on study of the sources (mainly Qurʾan and Hadith, of course, but it shouldn’t surprise you to learn that those two sources didn’t really explicitly cover every possible legal issue that might arise). This is independent scholarship that does not derive from a pre-existing madhhab. Since the founders of the four madhhabs were obviously active before those madhhabs existed, in addition to calling them faqihs we could also call them mujtahids (somebody who practices ijtihad).

By about the 10th century, many Sunni thinkers sort of collectively came to the determination that everything that could be teased out of the law had already been teased out, and that, as it was termed “the gates of ijtihad” were closed. In other words, they were arguing that any legal issues from that point on could be worked out with reference to the scholarship that had already been done, so no new scholarship was required. This sometimes gets interpreted, by Westerners especially, to mean that Islam, or Islamic civilization, stopped innovating in the 10th century, but that’s obviously nonsense as anybody who’s taken a couple of semesters of Islamic history could tell you. Not all Sunnis agreed with this interpretation, and Shiʿa never subscribed to it, as they have always allowed for the possibility of new ijtihad from their scholars, and especially from their imams.

Taqlid: This is sort of the alternative to ijtihad. Taqlid means “copying,” and in the legal context it means adherence to the already developed legal system of one of the madhhabs. Once the “gates of ijtihad” were “closed,” taqlid became the predominant method of supporting new legal opinions. Practicing pure taqlid means that you hold to one of the madhhabs basically unquestioningly, without having to understand why a particular madhhab rules a particular way on a particular question.

Fatwa/Mufti: A fatwa is a legal ruling or opinion, issued by a jurist or scholar (or an imam in the Shiʿa context), who can therefore be called a mufti (someone who issues fatwas). These can be issued for any reason, but often someone (anyone, from private citizens to judges trying to decide a case) will ask a particular mufti for his or her opinion on a particular legal question, and the mufti will then consider the question in light of the sources of law (Qurʾan and Hadith, but also a couple of other things that we’ll get to in a minute) and issue a ruling. These guys were the earliest legal thinkers in Islam, but they worked piecemeal, responding to direct inquiries. They could be judges themselves, but not necessarily. The fatwa was the controlling legal document, not the actual judge’s ruling, so where you might find catalogs of court proceedings in the Western historical tradition, for most of Islamic history groups of fatwas were compiled (maybe all the fatwas of a particular mufti, or of all the muftis in a particular city), albeit usually with the particular details of a particular case edited out.

The mufti‘s opinion can include original legal reasoning, which would make it something approaching ijtihad, but usually it relies on reference to past legal scholarship, which makes it taqlid. Unlike, say, a legal opinion issued by a court here in the US, there’s no enforcement mechanism for a mufti‘s rulings unless the state decides to create one, and there’s no particular reason compelling any one mufti to agree with another. People could, in theory, shop around to get the fatwa they wanted, but in practice this wasn’t nearly as common as you might think. Most people who got an unfavorable fatwa either dropped their legal case altogether or sought redress by means other than the court, and in cases of “dueling fatwas” it would be up to the judge to determine which opinion was controlling (judged according to which opinion seemed better reasoned). You might pay the price for that someday, if you believe in that sort of thing, but in the here and now it doesn’t necessarily mean much.

Qadi: Now these guys had some formal authority behind them. A qadi is, bottom line, a judge, but one who rules on matters of Islamic Law. As the caliphate expanded, it rapidly became clear that the caliph himself couldn’t possibly personally adjudicate every dispute that came up between his subjects, nor could the caliph’s regional governors handle the volume of cases in each of their provinces. So a class of specialized legal officials was created. The first qadis were basically making it up as they went along, using any legal source that came to hand (Qurʾan, Arab customary law, preexisting local laws in conquered territories, anything), so you could make a case that many of them were also mujtahids and muftis before all these roles began to differentiate themselves. But as scholars began to work out legal issues in a more formal way, qadis came to rely on that body of scholarship when making their rulings. The jurisdiction of qadi courts wasn’t specified, but came over time to be limited as civil law (see below) became more prevalent and civil courts staked out their own jurisdictions.

Qadis were frequently community leaders as well as judges, and might mediate in situations that weren’t legal issues or otherwise be looked to by the community for general guidance. Ideally a qadi would be familiar not only with the law but also with local peculiarities, so that if, say, the same two yahoos wound up in front of the same judge over and over again because of some kind of personal feud, the judge could quickly make some determinations based on what he already knew about that relationship and even take steps outside of the legal proceeding to try to address the root of the problem.

Teachers: Experienced faqihs and muftis (some people were both, and maybe a qadi to boot) would often take another gig (generally unpaid, so this was a real labor of love) as a “law professor” of sorts. They would attract a following of students who would gather round to hear the professor lecture on a particular book (say, a collection of hadith or fatwas, or a biography of Muhammad). Students would eventually be given a certification by the teacher that qualified them to go teach others on the same book. Some muftis might spend part of their day issuing fatwas, part of the day hearing cases as qadis, and part of the day lecturing students, and the circle of people around them might not change very much.

Ijmaʿ: The Arabic root J-M-ʿ means “gather,” and you can derive lots of important vocabulary from it, like “meeting” (ijtimaʿ) and “university” (jamiʿah). This one, ijmaʿ, means “consensus,” and in the context of fiqh means “the consensus of the community” and is one of the accepted tools for working out legal questions. One of the most famous Hadith attributed to Muhammad was the saying “My Ummah (the name for the community he was creating) will never agree upon an error,” meaning that if there was a strong consensus among the community for a particular interpretation of the faith or the law, that consensus must be correct. There’s probably some sound social science behind this idea, given how hard it is for any community to reach consensus and how difficult history shows it is for one person, even a ruler, to affect real change when it comes to deeply held beliefs. Ijmaʿ is thus, after Qurʾan and Hadith, the third accepted method of reaching legal conclusions.

Legal scholars would, over time, look around their own community and think “surely Muhammad wouldn’t have been that confident that this collection of putzes could make a sound decision for itself” (privileging the past and “Golden Age” thinking aren’t purely Western phenomenons), and they would argue for limiting the definition of “Ummah” in that Hadith to say that only the consensus of those who were alive in Muhammad’s time really mattered, or only the consensus of learned legal scholars mattered. Others would address questions of the kind of consensus; for example, the question of whether the whole community had to agree 100% or simply by some majority. It is through ijmaʿ that the idea of a living and changing Islamic community can be seen, since the consensus of that community is always going to be changing over time.

Sunnah: While it’s not a legal term, the teachings and lived example of Muhammad and his Companions (the root, S-N-N, means “smooth path”) make up an important component in the development of the law. The Qurʾan (3:32) calls upon believers to “obey God and His Messenger,” and after Muhammad’s death the only way for the community to “obey” him was to look to the things he said and the way he lived as authoritative guides to how any good believer should live. In one sense, Sunnah could be considered identical with Hadith, since the latter simply refers to reports that were collected and disseminated about Muhammad’s sayings and doings. Indeed, in most of the places where I’ve mentioned “Hadith” in this post, you could substitute “Sunnah” and the effect would be the same. However, as time went on the concept of the Sunnah began to expand in some ways to include the lives of Muhammad’s Companions, who, since they knew Muhammad directly, could obviously be trusted to have lived their lives in accordance with his own example. In that sense, then, Sunnah could also incorporate some interpretations of ijmaʿ that held that the only real “consensus” was the consensus of the earliest Islamic community. The ijmaʿ of later generations of Muslims might also be used in forming law, but it was not treated as Sunnah the way the ijmaʿ of that first community was. There also, as you might expect, arose the problem of competing versions of Hadith and Sunnah, especially as you get further from the life of Muhammad. Everybody remembers the past differently, and some people like to just make up the past to justify their actions in the present, so you often found arguments over the reliability of Hadith reports and the like. We’ll talk more about that later.

Qiyas: The word qiyas means, among other things, “analogy,” and this was/is for Sunnis the fourth of the accepted methods for solving legal questions. This is pretty much self explanatory, but the legal scholar practicing qiyas would take a contemporary legal question and then work back into past rulings or things in the Qurʾan or Hadith/Sunnah that seem to involve the same basic principles, then he or she would use those analogous situations to make a ruling on the contemporary issue. The use of qiyas is one of the most divisive issues in early Islamc jurisprudence, because its use can start to look a lot like individual reasoning, which gives the individual scholar a voice on par with that of the Qurʾan itself when addressing legal matters. That was (is) a bridge too far for many Muslims (well, many Sunnis, at least), and so some madhhabs restrict or even reject the use of qiyas.

ʿAql: Now we come to straight-up human reason, the ability of the learned scholar to derive and understand stuff just by using his or her own noodle. This term is a much bigger deal when we’re talking about philosophy and the sciences, but it has legal relevance particularly for Shiʿa, who consider ʿaql, rather than qiyas, to be a legitimate source of the law. Since Shiʿism still explicitly permits ijtihad to this day, it’s not surprising that they’d be more open to original thinking, at least when that original thinking comes from an imam or an esteemed scholar.

Raʾy: This means “opinion,” and it can be thought of as almost interchangeable with ʿaql but is more strictly a legal term. The principle of raʾy allows the scholar to employ his own common sense and reasoning to tackle legal problems that don’t have any direct reference to a text.

ʿUrf: The word ʿurf derived from a root (ʿ-R-F) that means “to know,” and it refers to local custom (the things that were already “known” in the places the Arabs/Muslims conquered), which amount to a kind of “common law” for Islam. Although it’s not a formal legal tool, it has often been treated like ijmaʿ in that it is what a local community had agreed upon prior to the arrival of Islam. Where local ʿurf directly contradicted Islamic teachings (as through the Qurʾan or the Sunnah, for example) then it was discarded, but where there was no apparent contradiction it was generally felt that nothing about Muhammad’s revelation was meant to eliminate local custom just because. This principle has a lot to do with the fact that a traveler across the “Islamic world” even today could experience “Islam” in countless different and highly localized forms along the way.

Qanun: This doesn’t have anything to do with Shariʿah but it is nonetheless an important legal term that you should know. Deriving from the Greek κανών, from which we get the English word “canon,” qanun refers to secular law as propagated by rulers rather than religio-legal scholars. Rulers from the beginning of Islam propagated their own laws (hell, what’s the point of being a ruler if you’re not allowed to make your own laws), especially with respect to petty crimes and tax codes. These were often appropriated directly from the laws and regulations already in place in conquered territories, so the might have differed from one place to another until the caliphate began to formalize and regularize its operations across its entire territory. But it wasn’t until the Mongols (who had their own legal code, the yasa, that conflicted with Shariʿah in many places) and the Ottomans took power in the Islamic world that qanun really became important and really began to compete with Shariʿah for primacy within the state.

Next time: We’ll continue along this line with short bios of the founders of the major Sunni madhhabs

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