Routledge Handbook of Islamic Law

Khaled Abou El Fadl, Ahmad Atif Ahmad, Said Fares Hassan, Khaled Abou El Fadl, Ahmad Atif Ahmad, Said Fares Hassan

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317622444
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Islamic Theology

This handbook is a detailed reference source comprising original articles covering the origins, history, theory and practice of Islamic law. The handbook starts out by dealing with the question of what type of law is Islamic law and includes a critical analysis of the pedagogical approaches to studying and analysing Islamic law as a discipline. The handbook covers a broad range of issues, including the role of ethics in Islamic jurisprudence, the mechanics and processes of interpretation, the purposes and objectives of Islamic law, constitutional law and secularism, gender, bioethics, Muslim minorities in the West, jihad and terrorism.

Previous publications on this topic have approached Islamic law from a variety of disciplinary and pedagogical perspectives. One of the original features of this handbook is that it treats Islamic law as a legal discipline by taking into account the historical functions and processes of legal cultures and the patterns of legal thought.

With contributions from a selection of highly regarded and leading scholars in this field, the Routledge Handbook of Islamic Law is an essential resource for students and scholars who are interested in the field of Islamic Law.

Part I

Jurisprudence and ethics

1

Shariʿah, natural law and the original state

Ahmed Izzidien

Introduction

Natural law proposes to traverse boundaries set up by unique legal epistemologies. In an attempt to do so, natural law presents an opportunity for delineating a depolarizing common ground for normally incompatible and competing legal theories. To characterize the dynamic when concepts of natural law appeared within the deliberations of legal theoreticians of the Muslim traditions, this chapter shall attempt to chart those ideas that presented in Islamic legal theories when they interacted with concepts of natural law. It shall consider at the intellectual challenges this dynamic produced and the legal theories that emerged.

In terms of the organization of the chapter, it begins with the story of a boy who, to his surprise, finds himself marooned on an island. The boy attempts, based on first principles, to arrive at a formulation of law and a theory of being in the cosmos. For the second part, the chapter charts those ideas that came into being within Islamic legal traditions – from their formative period to contemporary times – that relate to natural law. The third and final part of the chapter considers how these deliberations came to form the political heritage that has articulated itself in parts of our world today.

The unexpected journey

The story of the island-marooned boy. Building a case for natural law based on first principles.

A young boy woke in his canoe as it edged itself onto the beach of a seemingly deserted island. He could not recall how it came to be that he had found himself adrift. He appeared to be in a state of amnesia. Otherwise healthy, he began to explore the island. Of the life he found were small yet organized colonies of insects. In his observation, he considered that the perpetuation of one colony was dependent on a previous one. It appeared that all living things on the island were in an existential need of a predecessor. Yet, he reasoned that to bring this chain of events into being, there must have been a moment in the past that needed no predecessor – otherwise, the boy reasoned, this chain of events could not have begun. This led the boy to hold that an absolute being must have existed, one without beginning.

Further, if it was absolute, there would be no room for a ‘second’ absolute being, as to the boy, this would mean the first was not actually absolute – a necessary condition for the life he observed around him. Thus, if the boy could not have been, by definition, made absolute, and indeed was not absolute, he asked, what was his own nature?

Given the absoluteness of the original being, the boy reasoned that the best state of being for any other being would be one that was able to derive the most, in every possible manner, from the absoluteness of the absolute being. That is, from absoluteness. For this, he reasoned that a non-absolute being would have to be the complete opposite of absoluteness, that is, a being that is absolutely and inherently in need (faqīr bi-dhātihī). Thus, the boy saw his inherent need and mortal nature as perfect for a being of his kind.

This put him as a form of ‘key’ to the ‘lock’ that was the absolute being. As another absolute ‘lock’ could never be brought into existence by definition, a key was best placed to gain maximally from the said absolute lock. Thus he reasoned that he had been given a chance to gain from the absolute in the best possible manner. It appeared to him that the absolute being had a good will towards him. This was particularly true to him given that the absolute being – in being absolute (ghanī bi-dhātihī) – had no inherent need for him, by definition.

As the boy began to live on the deserted island, he discovered more of his innate needs. Where he felt helpless and could not will for something to occur, he would consider: His own perfection, the best state of being for himself to be in, was the polar opposite of the Absolute being. Since the absolute being was by definition able to grant its own will, and since the absolute being, in wishing good for him, had made the boy its polar opposite, then by definition the boy should be inherently unable to grant his own will. The boy reasoned that the opposite of granting one’s will was to ‘ask’. The act of asking the absolute being became the ultimate realization of this polarity – one between the absolute and its opposite. In an analogy, the boy, short of being an absolute being that inherently did not require food, would find that its opposite state, one that was able to enjoy food, was the best state of being for him. Thus, to the boy, asking became a realization of the grace of the absolute being towards him, an essence of the relationship – mukh al-ʿibāda. This led the boy to hold that the absolute would still be influential in the world today, otherwise there would be no apparent reason for instilling such a need to ask in him.

As time passed, the boy felt an innate desire for certain elements on the island and an aversion to others. He was comfortable with what brought him benefit (maṣlaḥa) yet not with harm (mafsada).

For now, he could fish to his own desire; yet, he wondered, what if another like him were to appear? He could see either the domination of one over the other, with one gaining pleasure, the other sadness, or the cooperation of the two.

He held that even if he were to dominate, he would not wish to be on the receiving end of such dominance. A person seemed innately repulsed by the idea of being on the receiving end of an act of unfairness. Thus he held that all transactions would be best based on this idea, this axiom, ‘Do onto others what you would wish upon yourself’. He appeared to be able to discern a distinction between acts that he would wish for others – and by extension himself, and acts that he would not wish on others – and by extension himself. The first acts he called ‘Good’, the latter he called ‘Bad’.

It appeared to the boy that, given his innate need, he would appreciate when he was unable to fish, due to injury for example, that another boy would help him. Based on the above axiom, he held that he too should be willing to help others with the same.

Then one day a new boy appeared, then many more.

The island’s society

In living with the other boys, in enjoying the food of the island, the boy felt an innate gratefulness to the original source. However, the boy then realized, that he could choose not to thank the absolute being or those around him – though he would not wish the same for himself. Thus he realized that while he had been given the opportunity to gain maximally from the absolute being, he could also fall short of what he felt was ‘owed’ based on the axiom. Thus he called these ‘rights’ – the absolute being’s ‘rights’ and those of the other boys. Further, seeing as he had not brought the other boys into existence, he held that he had no say over them; they were inherently not his, thus not at his disposal. All of the boys including himself were, however, in the mind of the boy, of the absolute. Thus he came to the conclusion that while he had the best placement – inherent – in himself to live, he could fall short of these ‘rights’. Yet, to the boy, these were not unreasonable rights. They were in accordance with the axiom and they seemed innate. Thus it appeared that the absolute being had afforded him grace by giving him the opportunity to live life in a manner that was also in line with his innate nature.

This being the case, and based on the first principles he had elaborated, the boy reasoned that any pain he endured must be due to a wisdom of the absolute that he had not yet realized.

Then came the calamities. A number of disagreements and fights broke out between the boys. His ankle was badly injured. He felt the urge to retaliate, to become bitter and vengeful. Retreating for time to consider, he came to a realization: He seemed innately cognizant that in choosing between Good and Bad, he would have wished any other boy to take the Good option. This would have been the Good thing to do since he would want it for himself. He realized that while he could take the Bad option and strike down his adversaries, he could gain by acting on the Good, given his innate appreciation for it. While he may outwardly be in pain, inwardly, he felt innately at peace in choosing this option as he felt he had gained something he would not have otherwise, namely compassion and patience. These two qualities he would wish for others. Thus it appeared that given his innate appreciation for Good, he had gained by choosing to do Good.

Yet, what about compensation? He held, according to the axiom and by extension his ‘rights’, that the boy who injured him should compensate him. Yet what ‘right’ would he have to force the boy to compensate him?

He reasoned: One boy had no right over another – he had not created him. Thus to maintain the victim’s right to not be harmed, one could use force to deflect an attack. After such an attack, the offender then ‘owed’ what he had damaged. Such was in line with the axiom and in line with his ‘rights’. Further, even though the offending boy had acted in a Machiavellian manner, seeing harm as justifiable for personal gain, the offending boy still would not wish the same to be done to him. The axiom appeared inescapable, innate. Even if a person saw being unfair as justified for gaining power, the same person would not wish it on himself. There appeared to the boy to be an innate discontentment with unfairness. Further, in the offending boy’s own innate axiom, he also recognized it as ‘Bad’. His own self could hold him to account, and at heart, the offending boy would not want it for himself.

The other boys, having subscribed to the same axiom and idea of ‘rights’, helped him obtain what was customarily known to be the amount of fish one could gain without such an injury.

From that day, the boys etched in a piece of timber two axioms: ‘No one shall harm another’ and ‘Custom serves as precedent’.

The idea of such etching was new to him and he quickly realized that the more boys that went against their innate axiom, the longer the list of ‘laws’ would become. Then an event occurred that challenged the very place of the first axiom.

One of the young men had been caught by a wild animal. Armed only with spears, the others realized it meant the death of the boy if they attempted to spear the wild animal. While the ax...