7. Interpreting the Law in Islam, from the 8th-century law schools to the present

Introduction
Legislation is important in any society, including for its political influence. In the vast field of expansion of Islam, jurisprudence needed to clarify the legal practices of diverse populations - tribes of Arabia, Iranians, Berbers, Indonesians, Malaysians, etc. - according to Islamic norms. To achieve this, Muslim lawyers in the early centuries of Islam only had few Quranic prescriptions that were limited to the narrow field of religious practices, civil practices (testament, marriage, etc.) and criminal practices. How to use the Quran and the Prophetic Tradition to interpret the law? How to supplement the silence of the founding texts and tailor responses to specific situations - from the first Islamized societies to our modern world - while referring to a norm, the sharī'a?
Source 1

Location map of major law schools

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Image under URL : http://commons.wikimedia.org/wiki/File:Madhhab_Map2_vectorized.svg (05/01/2015)

In most Muslim states, no specific law school has been imposed. Mālikism is the main law school in the Maghreb and in sub-Saharan Africa. It claimed to Mālik ibn Anas, a Medinan lawyer from the 8th century. His teaching was compiled and reviewed under the name Muwattā' (title translated into English by The Well Trodden Path). This first major compilation of Islamic jurisprudence became the Vulgate of lawyers who extensively commented on it. It contained a corpus of hadīth and of consensual legal practices that were the norm in the "City of the Prophet" as a response to the silence of the Quran and the Sunnah on this subject.
Shafi'ī was taught in Indonesia, in Malaysia and in East Africa. Hanafism was taught in Central Asia, in India, in Pakistan and in Turkey. Al-Shāfi'ī (died in 820) was one of the main Sunni jurists. He taught law and wrote his works in Egypt. For him, the authority of the Quran and the Sunnah were absolute, and superior to the spiritual authority held by the 'ulamā’. He favoured analogy (qiyās) more than opinions from higher authorities.
In some countries, one single rite was recognized, for example Mālikism in Morocco. In Saudi Arabia, the Wahhabi tradition - adopted since the mid-18th century by the 'ulamā' - claimed to Hanbalism, the newest Sunni law school (the first law school was founded in the 10th century) and a minority law school in Muslim countries. Ibn Hanbal (died in 855) was well known because of his compilation of hadīth and his theological positions; his disciples went on disseminating his legal education, based on the Tradition and on the moderate use of reasoning methods inspired from other schools.
In Bahrain, the Shiites, who were the majority of the population, went to various law schools. In Egypt, where the tomb of Imām al-Shāfi'ī, founder of a law school, was venerated, Hanafism was disseminated by the Ottoman sovereigns from the 16th century. In Cairo, at the time of the Mamelūk sovereigns, the madrasa al-Nāsir, built on a cruciform plan in the 13th century, provided in a single place the teaching of the four major Sunni law schools.

Source 2

Analogical reasoning in Qiyâs

Many of the things that happened after the Prophet are not included in the established texts. Therefore, they compared and combined them with the established indications that are found in the texts according to certain rules that governed their combinations. This assured the soundness of their comparison of two similar cases so that it could be assumed that one and the same divine law covered both cases. This became legal evidence, because the early Muslims all agree upon it. This is analogy (qiyas), the fourth kind of evidence.

Excerpt from Ibn Khaldūn in: The Muqaddimah: An Introduction to History, by Franz Rosenthal, 1967.

Ibn Khaldūn (1332-1406) was born in Tunis from an Andalusian family who had taken refuge in Ifrīqiya, a former Roman province in North Africa. He was a great Sunni scholar and a passionate historian who was influential among several politicians, not only in Andalusia but as far as Egypt. He taught the Māliki doctrine in the great mosque and university al-Azhar in Cairo. He also had another function as a rigorous main qādī (judge). In 1377, he wrote in Cairo the Muqaddimah, a one thousand-page treatise of political science. But the reasoning by qiyās was not the norm among all Muslim lawyers; it was rejected by Shiites and criticized by Sunni authorities. The very nature of this logical reasoning was much discussed by philosophers and theologians, who debated whether it was a syllogism or true analogical reasoning.

Source 3

Interview of Sara el Haydar

From my point of view, Islam is not opposed to human rights, so this is not a religious problem. On the cultural level, the Saudi society is divided on the issue of driving for women, and this division is merely based upon individual and personal beliefs. Some religious extremists support women who want to drive whereas others, very liberal and progressive, are against it. The opposite is also true of course. [...] Some religious men give as a pretext the fact that Islam does not allow women to drive. This is only a question of interpretation of religious texts. For me, this is an instrumentalization of Islam; the wives of Prophet Muhammad were riding camels, the cars of the time! Islam forbids women to be alone with a stranger, but this is what happens when a woman pays a driver to drive her car. A woman driver is therefore more respectful of the religion that a woman driven by a driver!”

Interview of Sara el Haydar, a university professor living in Ryad, published in the French daily Libération, 25 October 2013. Trans. Marie Lebert.

In Saudi Arabia, Hanbalism - the official legal school - was at the origin of rigorous social practices, such as the Vice Squad since 1940. Saudi Arabia has been the only country in the world where women cannot drive a vehicle. Whereas no law forbids them to drive, the authorities cannot issue them a driving license. In 1990, a fatwā from the Great Mufti justified the illegal nature of woman driving by a principle of protection - sadd al-dhara'i. Its goal is to prevent people from using a means that is not prohibited per se, but that leads them to commit illegal acts. To give women the freedom to drive would expose them to commit unacceptable acts in the context of Islamic Law. Sara el Haydar is a Saudi scholar. She considers that the ban on women drivers is primarily explained because of social factors, but she also states the importance of two other factors: the interpretation of religious texts by conservative authorities and the "instrumentalization" of religion.

Source 4

Fatwa* against terrorism published in London (2 March 2010).

Suicide bombers "can not claim that their suicide are acts committed by martyrs who will become heroes of the Ummah [the Muslim community], no, they will become heroes of hellfire," said Dr. Tahir -ul-Qadri. "There is no place for martyrdom, and their deeds will never, never be considered as jihad [“holy war”]," he added.

*Fatwā: legal judgment in Islamic Law, to adapt the legislation to new situations.



Excerpt from an article in the French daily Le Monde, 2 March 2010

Tahir ul-Qadri is a Pakistan-born scholar, lawyer and member of a Sufi organization. As a famous Sunni jurist, he held in March 2010 a press conference in London in order to present a fatwā (legal judgment in Islamic Law, to adapt the legislation to new situations) in Urdu and English in a 500-page book condemning both suicide and all forms of terrorism. In his fatwā, he drew on the Quran, the Sunnah and religious authorities.
After the attacks of September 11, 2001, many Muslim authorities condemned these terrorist acts. However some official statements legitimized Palestinian violence against Israelis or against the U.S. military presence in Iraq.
Since 2004, many initiatives - from religious authorities, from associations and from writers living in the Muslim world - have condemned all forms of terrorism and all forms of suicide bombings. In this context, Tahir ul-Qadri issued a reasoned fatwā that forcefully condemned terrorism - especially that of al-Qaeda - whatever the political motives of their perpetrators. In an interview, he reminded his audience that "any good intention or any mistake of foreign policy of any country or any pretext cannot legalize the act of terrorism.”