M.A.R. Habib
Annual Meeting of the Semiotic Society of America/
American Legal Studies Association
Pittsburgh, October 30, 1999
I would like to begin this paper by offering an historical overview of the nature and significance of Islamic law. I will then focus on one historical moment which was crucial in the final articulation of that law, attempting to elucidate the various theological and political tensions contained in that moment, and to explore the mechanisms whereby a semiotic closure was effected in the institution of Islamic law.
The formal name for Islamic law is Shari’ah which literally means “path” or “way”. The Shari’ah embodies a systematisation of the path of conduct ordained by God upon Muslims. The Shari’ah was formulated essentially during the eighth and ninth centuries A.D. and was originally conceived as regulating all aspects of a muslim’s life: not only his relationships with the state and other individuals but also his obligations to God and his own conscience. Its scope extends over ethical and religious duties, the laws of marriage, divorce and inheritance, as well as the entire field of criminal law.
The prophet Muhammad was born in 570 A.D. and, as Muslims believe, received Divine revelations until his death in 632 A.D. These revelations were thereafter compiled as the Muslim sacred book, the Qu’ran, which literally means “recitation.” During his lifetime, Muhammad acted as the supreme judge of the Islamic community, addressing whatever legal problems might arise by explaining the rules laid down in the Qur’an. After his death, this interpretative authority passed to the caliphs, the temporal and spiritual leaders of the Islamic community. The first four caliphs, Abu Bakr, Umar, Uthman and Ali, were referred to as rashidun or “rightly guided” since they had all been companions of the prophet. Their reign extended from 632 until 661.
However, as Islamic rule rapidly expanded over vast territories with diverse peoples, customs and laws, the questions of religious authority and of the nature of law became vastly more complex and urgent. With the establishment of the Umayyad dynasty in 661, the seat of government was transferred from Medina in Arabia to Damascus. The Islamic empire now extended over the former Persian and Byzantine empires, whose systems of law were absorbed to some extent into the Islamic judicial system; the Islamic judges or qadis often effected a compromise between Qur’anic regulations and local needs or circumstances. Moreover, as Albert Hourani states, there is some evidence that the Umayyad caliphs claimed to be “ultimate interpreters of the divine law” (Hourani, p. 61). Such claims, coupled paradoxically with the widespread perception that the Umayyads were effectively compromising the divine law, led to a number of movements which challenged the authority of the Umayyads and which offered their own theories of legitimate authority. These included the Ibadis, various Shi’i movements, the Zaydis, and Sunnis. The questions of authority embraced issues such as the status of the Qur’an as created or uncreated and eternal, the problems of free will and divine justice, the attainment of knowledge by reason as opposed to revelation, and appropriate ways of interpreting the Qur’an. To speak in very general terms, there were two broad kinds of movement, the one, represented by the Mu’tazilah, was rationalist, believed in the createdness of the Qur’an and in the absolutely spiritual nature of God; the other was more tradional, viewing the literal word of God as eternal and as the only firm basis, along with the sunna or practice of the prophet, for faith and conduct.
These new movements were encouraged by the new dynasty of the Abbasids which replaced Umayyad rule in 750, transferring the capital to Baghdad. The Abbasids pledged a new commitment to a truly Islamic state and claimed religious sanction for their rule, creating a widespread impetus to found the legal administration on an Islamic basis. The sources of the law were acknowledged as the Qur’an, the sunna or practice of the prophet, the hadith or sayings of the prophet; other factors included the opinions of scholarly communities and the customs of various communities. However, there was as yet little agreement on the relative importance of these elements. There were many early schools of law, the two most important of which were founded by Malik ibn Anas (c. 715-795) who emphasised the practice of the community in Medina as well as reasoning based on communal interest, and Abu Hanifa (c.699-767) who stressed the process of individual reasoning. A profound conflict emerged within the schools between rationalists who allowed the use of reason to supplement the Qur’an is establishing the law and more orthodox thinkers who insisted that the only legitimate source of law beyond the Qur’an was in the sunna of the prophet. It was al’Shafi’i (767-820) who systematised the sources of Islamic Law. He categorised these sources as: the Qur’an, the hadith or sayings of the prophet, the sunna or example of the prophet, and ijtihad or personal reasoning, the exercise of which should be strictly limited to extension by analogy or qiyas from the Qur’an or authoritative traditions. The most strictly traditional school of law was founded by Ibn Hanbal (780-855), who insisted that the bases of Islamic law were the Qur’an and the sunna of the prophet and who himself compiled an authoritative collection of hadith.
By the early tenth century, Islamic law or shari’ah and the principles of jurisprudence, known as usul al-fiqh, were standardised, and the four movements mentioned above, the Maliki, Hanafi, Shafi’i and Hanbali were established as the orthodox schools. In summary, the methodological formula for the solution of legal problems was first to consult the Qur’an and sunna; secondly, the jurist could employ qiyas or analogy; finally, recourse could be made to the principles of istihsan or equitable preference, and istislah which refers to the public interest. The general effort to interpret the Shari’ah is known as personal reasoning or ijtihad. The results of this process are then assessed according to ijma or the consensus of a community of qualified scholars. When there was unanimous agreement, the result was deemed a certain and infallible expression of divine law. While the doctrine of ijtihad or personal reasoning might be thought to have allowed a variety of interpretations, in practice its use was strictly guided and limited by the principle of consonance with other authoritative sources. Moreover, once unanimous qualified consensus on an issue had been reached, the issue was regarded as forever closed. This led to a general process of solidification of Islamic law by the tenth century and, as Arab thinkers phrased it, “the door of ijtihad was closed” and further legal speculation ceased, at least for several centuries. While there have been several attempts in the nineteenth and twentieth centuries to re-open the door of ijtahad, the overwhelming phenomenon of this closure in the tenth century looms large over the entire subsequent history of Islamic thought.
It is on this historical moment and movement of closure that I wish to focus. A number of elements, theological and political, were operative in this movement of closure. First and foremost was the conflict, not so much between the respective advocates of reason and revelation, but between those for whom reason was the primary principle of investigation and those who admitted the use of reason in strictly circumscribed ways. The second principle at stake was the question of the literal or figurative interpretation of the Qur’an.
While earlier thinkers in Islam had made extensive use of Greek philosophy and the principles of rational investigation, it was with the rise of the Mu’tazilah from the late eighth through the ninth centuries that there emerged in Islamic thought a profound polarisation of theological and legal principles. The Mu’tazilah embraced rational theology, known as kalam, and the movement was founded by four men: Mu’ammar (d. 830) , Abu-l-Hudhayl (d. 841), an-Nazzam (d. 836/845) and Bishr ibn al-Mu’tamir (d. 825). The movement had centres in both Basra and Baghdad. The name Mu’tazilah derives from the Arabic i’tazala which refers to the act of withdrawing. The Mu’tazilah or “withdrawers” are alleged by various sources to have derived their name from their having withdrawn from certain theological circles, such as the group of Hasan al_Basri (d. 728). The Mu’tazilah are coventionally described as embracing five theological principles: (1) the absolute unity (tawhid) of God; a related, and heated contention was that the Qur’an was created rather than eternally existent; (2) the principle of the justice and righteousness of God, which the Mu’tazilah claimed presupposed human free will; (3) the promise and the threat, the principle that God is bound to reward the righteous and punish the wicked; (4) the principle of the intermediate position, whereby a grave sinner was classified as neither a believer nor an unbeliever; (5) the principle of commanding the right and forbidding the wrong, the imperative to maintain justice and oppose injustice with word and deed.
A number of political factors were prominent in the effective rise to power of Mu’tazilite theology. For the early Mu’tazilites, the principle of opposing justice might well be identified with political support of the Abbasids as against the Ummayyads. Further, the Mu’tazilites appeared to have an interest in reducing theological and political tensions within the community, such as those between the supporters and opponents of Ali. Finally, there was some dispute of authority between the political powers of the Caliph and his ministers and the religious authority of the ulema, the religious scholars of the Islamic community. This complex admixture of political and theological elements achieved concrete expression during the reign of the Caliph al-Ma’mun who adopted Mu’tazilite dogma as the official doctrine of the Caliphate, and who imposed an Inquisition in 833 whereby refusal to accept those doctrines was formally punished. As W. Montgomery Watt suggests, several Mutalizites had high positions in his administration and must have supported his policy of attempting to reconcile opposing interests by implementing the Inquisition. Against this background, another deeply political circumstance emerged, which had a profound bearing on subsequent theology and the rigidification of Islamic law. The Inquisition had made obligatory upon all Muslims the Mu’tazilite doctrine that the Qur’an was created and not eternal. Ibn Hanbal, who later emerged as a founder of the most orthodox school of Islamic law, refused to accept this doctrine. He was flogged and imprisoned for about two years yet he refused to recant. It is this fact which made him almost a martyr in the eyes of many Muslims and he was subsequently upheld as a champion of Muslim orthodoxy. Even during his lifetime, he enjoyed considerable popular support; eventually, the Caliph was obliged to suspend his harsh treatment of Ibn Hanbal due to growing popular anger. Over 800,000 people are said to have attended Ibn Hanbal’s funeral. The Inquisition lasted through the reign of four Caliphs and was ended in 848 during the caliphate of al-Mutawwakkil, again probably in response to popular pressure.
It is clear that such circumstances must have compelled Muslims to think about and decide firmly between rival theologies and rival interpretations of the Qur’an and of the relative status of reason and revelation. After the Inquisition Sunnism effectively became the official religion of the Abbasid Caliphate, and over the next century Sunni theology and law achieved the kind of solidification or rigidification mentioned earlier. This solidification rested on the political factors cited as well as a number of other developments. One factor was the clear formulation of the principles and sources of jurisprudence: Ash-Shafi’i’s method of deriving legal principles from the Qur’an and sunna came to generally recognized as valid. By the early tenth century, all four schools of Islamic law had a definite form, and no new schools arose. Other factors contributing to the consolidated form of Sunnism included the development of Hadith studies: authoritative collections were compiled in the ninth century by al-Bukhari (d. 870) and Muslim (d. 875). The ninth century also saw much wider agreement on interpretation of Qur’anic verses. Despite opposing trends among Sunnite theologians, there was growing agreement on many central points of doctrine. Rational theologians or mutakallimun still existed among Sunni theologians and they were opposed by the Ahl al-Hadith, the people of the Hadith, whose foremost representative was Ibn Hanbal. Indeed, throughout the ninth century, the followers of Hanbal and Hanafi gave clearer formulation to Sunni doctrine.
In one aspect, all of these developments can be regarded as elements of a general reaction against Mu’tazilite doctrine. This reaction reached its most articulate expression in the work of al-Ash’ari (873-935) who studied under the leader of the Mu’tazilites al-Jubbai in Baghdad. However, at the age of 40, he turned away from the Mu’tazilites and accepted the Sunni doctrine as established by Ibn Hanbal. Al–Ash’ari now vehemently opposed the Mutazilite dogmas, and in their place he asserted that the Qur’an was uncreated, that the statements of the Qur’an should be taken literally, and argued against the Mu’tazilite doctrine of free will. In doing this, al-Ash’ari used the Mu’tazilites’ own rational methods against them. It might be said of al-Ash’ari that his contribution to Islamic theology was to assimilate Greek conceptions without compromising the essential tenets of Islam.