Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

by Aasem Bakhshi

Please refer to part 1 and 2 for the background.

To effectively address the original Weberian objection i.e. normative pluralism is substantively irrational, it is mandatory to reformulate the problem in concise terms, starting point being that change in Islamic law takes place by means of some interpretive mechanism called Ijtihad. What exactly constitutes it: Is it the interpretation of the textual source ab initio; is it merely a pseudo-clandestine thought experiment to seek out verdicts on issues on which there is no past consensus among jurists; or is it merely a different solution to an old problem, but one which is in sync with contemporary social reality?

Irrespective of the particular theoretical inclination favored, there is no doubt that multiple norms will be generated in any interpretive undertaking; a fact which is amply observed by the term ta’addud al-ahkam in traditional Islamic literature. That this multiplicity of norms gives an irrational character to the law is the contention I am presently trying to analyze.

In my view, basis of this contention can be traced back to Islamic legal history and literature with some effort. After the post-recognition phase of Madhabs (the schools of Islamic Law), Muslims jurists increasingly found it hard to espouse the concept of Ijtihad “proper” through the medium of ifta’a, thereby limiting the response of an independent jurist to the ambit of his own juridical school. At times, some of these jurists resorted to quasi-artificial casuistic methods in order to achieve equity between presumed universality of complete legal paradigm, i.e. Sharia’h, and its practical manifestation when it comes to application of law to facilitate the functions of a society. Most of these casuistic developments – for instance Istihsan (Juristic Preference), Istishab (Presumption of Continuity), Urf (Custom) – in medieval times were arguably instigated by the desire to achieve a rational character of the law, thereby circumventing an almost subjective and probably mistakenly understood and emphasized universality of norms. And if all these developments and the enormous literary genre evolved from them achieved a kind of “practical wisdom” in line with social reality of times, it seemed rationally inconsistent to a modern critical mind.

But there is more to this discourse than casuistry acquiring a contemptuous nuance in Islamic law.