Philosophy
Of Islamic Law (Part 3)
3. Furu' al-fiqh Contemporary trends
The other major genre of juristic literature, furu' al-fiqh
(branches of jurisprudence), is constituted primarily by rules (positive law).
It might be expected that individual writers in this genre were, from
generation to generation, engaged in the process of ijtihad. However,
this is not quite the case. In the course of the ninth and tenth centuries ad, the Islamic community became committed to a
pattern of juristic loyalties whereby, in the end, all Muslims identified
themselves with particular schools (madhahib) of the law. Within the
Sunni tradition there were four dominant schools, the Maliki, Hanafi, Shafi'i
and Hanbali schools, each named after its founder. These acknowledged each
other and also gave qualified acknowledgement to a number of minor schools, and
to the Shi'is. The vast majority of significant jurists belonged to one of the
major schools, usually by virtue of birth and geography, only rarely by choice
and adoption. When they wrote a work of furu' al-fiqh, they gave
expression to the rules (with the attendant patterns of dispute and debate)
that they had inherited within their school. The fundamental acts of ijtihad
were thus projected back to the founder and to the early masters. By an ongoing
act of loyalty, commitment and preservation, successive generations of jurists
rediscovered and restated the rules of the tradition to which they belonged.
Works of furu' therefore show a dominant hermeneutical orientation
towards earlier works in their own tradition, and not towards revelation. This
is reflected in the characteristic patterns of citation, which invariably
recall the opinions and judgments of earlier masters within the school, and the
literary forms of such works (epitome, commentary, supercommentary), all marks
of hermeneutical commitment to a particular school. In so far as writers in
this tradition actually deployed arguments of the type described in works of usul,
they did so in order to demonstrate that the inherited structure of rules could
be aligned with revelation and not for the purposes of ab initio
deduction of the law. Developments in the law, manipulation of its concepts and
their application to new cases were always carried out in the light of the
inherited structure. The inconcinnity between the principles of jurisprudence
as set out in a work of usul and the practice of a writing jurist was
eventually acknowledged with the recognition that, in relation to the school
founders, these were principles of discovery while, in relation to later
jurists, they were principles of justification. Hermeneutical thinking within
the tradition (based on juristic texts, not texts of revelation) was known as ijtihad
fi 'l-madhhab or school-ijtihad and distinguished from the
independent ijtihad of the founding figures.
Muslim thinkers of the twentieth century, committed to various programmes
of legal reform or political action, have developed a number of theoretical
props which take them away from the traditional modes of juristic expression.
They have often abandoned the particularity of school loyalties; instead, they
have adopted law-drafting techniques that reflect the realities of modern
nation-states, borrowed legal and social principles from a variety of sources,
and argued strenuously that the door of independent ijtihad is open,
meaning that they can again make independent legal judgments based on direct
confrontation with revelation (often using a definition of revelation, at least
in relation to hadith, which is more limited than that of the past). The
major, and certainly the most obvious, modern responses to the juristic
tradition have been practical, either in the service of state law or in the
service of political opposition. There has been a corresponding lack of
interest in the philosophy that is articulated in the traditional forms of
juristic discourse, especially those of furu'. In different ways, both
of the traditional genres, usul and furu', acknowledge the
exploratory nature of the effort of defining God's law and situate themselves
in a flexible and pluralist system of rules. They may have more relevance to
contemporary problems than is generally conceded (see islamic philosophy,
modern).
The modern linguistic calque falsafat al-tashri' (philosophy of
legislation) or its equivalent is currently used in several Islamic countries
to designate a variety of academic activities. These range from conservative
scholarship, drawing heavily on the tradition of usul al-fiqh, to
analytic descriptions of legal developments in modern Islamic states and
something like the Western discipline of philosophy of law.
