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.

The Austrian-American jurist Hans Kelsen argued in his theories of legal positivism that all newly discovered norms must conform to the Grundnorm, a kind of hypothetical higher logical condition. The argument has been contextualized islamically in recent times, whereby many modern scholars** of Islamic law have argued that the Islamic moral expression “obedience to Allah” is an expression of the transcendental myth that fulfills the function of grundnorm in Islamic legal discourse.

There is no doubt that this remarkable proposition serves to make Sharia’h and natural law compatible; however, the real use of it lies in disentangling two confusingly snarled threads that modernity has brought to the fabric of Islamic law. On one hand, there is an increased proclivity for stringent applications of law in various spheres of public and private life. There are two contrasting shades of this tilt: 1) the literalist “text as norm” approach generally subscribed by the Islamists, liberals and revivalists alike (albeit not always erroneous intrinsically) and 2) a kind of “formal jurisprudence” employing all the tools of discursive logic, yet envisaging the use of universal principles and clearly pronounced norms. On the other hand, there is a resort to casuistry, most of the times employing specious argumentation that is clearly extended to achieve specific preconceived ends. In many cases, the latter can be observed in localized jurists muddled between knowledge and identity issues related to their respective communities.

Most of the modern readings of Islamic law generally fail to acknowledge these subtle distinctions but so is the modern jurist who remains strangled, on one side, between the pursuit of legal as well as ethical application of law in the society and the quest to achieve formalized rationality of jurisprudential method on the other.

To drive the point home, it can be concluded that social change and legal developments cannot be visualized to act in water-tight compartments rather the former triggers the latter in more than one ways. It is imperative to understand that norm-creating activity is a perpetual human-divine legislative process which is validated – without exceptions – by a Grundnorm revealed as a guiding authority for the independent jurist (mujtahid). At the same time, it is not necessary that the content of all the newly discovered norms must be implicitly found in revelation; rather, these are deduced through the science of Islamic legal epistemology, commonly termed as Usul al-Fiqh in traditional jargon.

In modern times Islamic legal developments are at a juncture where these cannot be technically characterized as formally rational (in the modern sense of the word); however, the characteristic modern reading of the law which imply that jurisprudential method of medieval times was substantively irrational is not correct either. In fact these developments – at that time – were meant to achieve a kind of normative pluralism which inadvertently harmonized the law with the social reality and worldview of those times. ____________________________

**For instance read Imran Ahsan Khan Nyazee, “Islamic Jurisprudence“; Ebrahim Moosa, “The Allegory of Rule (Hukm): Law as Simulacrum in Islam

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3 Comments

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3 responses to “Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

  1. YLH

    Dear Mr. Baskshi,

    This is a remarkable analysis of the Islamic legal tradition.

    Would you say that “Istihsan” has an equivalent in “inherent powers of the court” which is a central feature of many English jurisprudence based legal systems?

  2. Thanks for the comment, Brother Yasser.

    If I understand correctly, the ‘inherent powers of the court’ generally refer to administrative aspects that govern the business of the court; for instance, punishing contempt, regulating the conduct of attorneys or remanding cases to other courts. Not much to do with adjudication proper, as I understand it.

    Istihsan, on the other hand, has some specific meanings in Islamic Law. Based on definitions and uses, it has been at the center of some controversy. The most common definition can be the ‘preference of a stronger evidence over analogy (qiyas)’. This evidence can be an explicit text (usually a hadith), a necessity, consensus (ijma’a), what is considered good (ma’ruf) and a subtle analogy (qiyas khafi).

    In a way, it is a methodological tool using which a jurist while anticipating the consequences of a decision – which was otherwise reached through analogy – prefers a different evidence and derive a different ruling altogether. A common example in Hanafi jurisprudence is derivation of ruling for a person who eats during fast out of forgetfulness.

    Different schools / jurists opine differently about the definition and application of Istihsan. Most of the Shafii and Hanbali jurists strongly oppose it. Malikis remain divided but nevertheless use it. Hanafis extensively use it.

    There can be a lot of interesting discussion that can be extended further in this regard but that would probably require a complete new post. Especially, how various jurists belonging to different schools reach the same ruling using different tools. Again, the example of eating during a fast is a good one.

    Coming back to your question, I would add that my starting assumption was the understanding of ‘inherent powers of the court’ that I gave in the beginning. That, I believe, is not an specialist’s understanding and please feel free to correct me if I am wrong.

    regards and salam
    -Aasem

  3. YLH

    My understanding of the inherent powers of the court is beyond administrative but actual adjudication.

    Atleast under the Code of Civil Procedure in Pakistan ie the “CPC”, inherent powers are used to take up matters which are outside the other various provisions of the code. But I see your point.

    My understanding of Istihsan – as I learnt it in a seminar course I took on “islamic ethics” back in the US- is that Istihsan is the court’s discretion to make a decision according the prevailing conditions in the region.

    For example the court may pardon a criminal if he is from an influential tribe which is about to rebel and Islamic courts practised this in history.

    Come to think of it, istihsan sounds like the doctrine of necessity.