A number of contemporary writers have noted that one of the strengths of Islamic law is the fact that it is able to develop coherently and effectively independently of the state and outside the political-juridical framework. This has been so for the most part of its history and indeed, the first state-sponsored systematic codification of the law came quite late, in the 19th century with the Ottoman Mejelle. Of course, much earlier than this, Imam Malik ibn Anas was asked if his Muwatta could be the official state law—an offer which he naturally refused as befit the humility of any traditional scholar. The essential spirit of the law has been pragmatic: to follow Shah Wali Allah’s analogy, the Shari’ah is like the colorless drops of rain which when reaching the soil partakes of the color of the earth. This element of flexibility and pragmatism of this ethico-legal tradition was made possible thanks to the fact that it is entrusted chiefly in the hands of scholars rather than political authorities. If indeed they had any authority, it’s not because they were ‘civil servants’ or bear official government seals, but because they were in possession of knowledge of the law. The authority of the Shari’ah is thus epistemic, albeit one that is inseparable from the religious, which perfectly makes sense given the religion’s valorization of knowledge, testified so cogently in many verses of the Qur’an and ahadith.
But more interestingly, if we ask what made this possible, it was, oddly enough, partly the literalist orientation of the Shari’ah. By this is not meant the primacy of the letter over the purpose, but rather that this tradition is one that is fundamentally text-bound. The religion of Islam itself is centred on a text, the Holy Qur’an as the Speech of God (kalam Allah). The Companions, during the reign of the Rightly Guided Caliphs, demonstrated considerable flexibility in the application of the law, but this can’t be stretched too far to the point that “anything goes”. To start with, the Companions were no ordinary individuals: their special status is recognised even in the Holy Qur’an itself, being the direct recipients of the revelatory message from the Prophet himself. “Whoever has seen me, has seen the truth,” so one tradition goes. The tradition of usul al-fiqh (principles of jurisprudence or legal methodology) includes fatwa sahabi (ruling of a Companion) as a source of law and their rulings are often regarded as ijtihad par excellence. There is no doubt, disagreement over the status of fatwa sahabi—some, like the Malikis, Hanbalis, Shafiis and (some) Hanafis, maintain that theirs is absolute proof of the law; yet others, like the Ash’arites, Mu’tazilites and Ibn Qarfi, argued that what counts really is the merit of their ijtihad, not because they were Companions per se.
The whole enterprise of looking for the higher objectives, intents or purposes of the law, though understandably need to probe beyond the explicit, must not reach batini proportions so that only the inward counts and hardly anything worthy is to be assigned to the zahir. In this respect, one is reminded of the fact that the earliest reference to the maqasid al-shari’ah comes in the works of the eminent Sufi, al-Tirmidhi, in his work on the objectives of prayer (al-salah wa maqasiduha). The Sufis, notwithstanding their known predilection for the inward, have never declared the dispensability of the outward: “Know that the esoteric that contradicts the exoteric is fraudulent,” declared Muhy al-Din Ibn al-‘Arabi. None have been so strident and faithful in the observance of the Sacred Law than the Sufis.
The critical component here is our intimate connection with Scripture. Yet it is here that the challenge presses hardest.
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