Sources of Muslim Law

Islam and International Criminal Law and Justice
Tallyn Gray (editor)
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2
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The Principal Sources of Islamic Law
Onder Bakircioglu*
2.1. Introduction
Islam carries significant characteristics of an elaborate legal system seek-
ing to regulate broad areas of human conduct in accordance with its ideal
paradigm of what constitutes right and wrong. Islamic precepts, which
Muslims believe to have been inspired by God, should be followed by
believers by means of thought and deed. Classical Islamic jurisprudence
rests on a monotheistic outlook that regards God as the ultimate source of
law, for He alone is taken to be the ultimate sovereign whose omnipotence
over human affairs stems from His status as the creator of the universe.
Humankind accordingly needs no further justification to be subordinate to
His will. Unsurprisingly, in relation to Lord (rabb), Islam characterises
humans as servants (‘abd).1 The word ‘Islam’, likewise, derives from the
Arabic term salám, which has a two-fold meaning: peace and submission
(to God).2 A Muslim, then, is a person who submits to God’s will to the
exclusion of any other revered entity.
The challenging questions of how Islamic law regulates internation-
al affairs in general, as well as just recourse to and just conduct in warfare,
along with issues germane to peaceful settlement of disputes and criminal
justice,3 demand a general examination of the origins, development and
hierarchy of Sharí‘ah. This chapter will explore the primary sources of
* Onder Bakircioglu is an Associate Professor of Law at the University of Leicester, United

Kingdom since August 2014. Dr. Bakircioglu’s research interests are in the fields of public
international law and human rights law. He is particularly interested in the use of force dis-
course in international and national settings. In 2014, he completed his second monograph,
Islam and Warfare: Context and Compatibility with International Law (Routledge, 2014).
1 Montgomery W. Watt, Islam and Christianity Today, Routledge, London, 1983, p. 125.
2 Bernard Lewis, The Political Language of Islam, University of Chicago Press, Chicago,
1988, p. 78.
3 Such issues pertinent to Islamic international law (siyar) will be examined in later chapters
of the present volume.
Nuremberg Academy Series No. 2 (2018) – page 15
Sharí‘ah, namely the Qur’án and the Sunnah (the Prophetic tradition),
and the main secondary sources, namely ijtihád (independent critical rea-
soning) and ijmá‘ (consensus of commentators on a controversial point of
law). Rejecting literal and narrow hermeneutics, this chapter will high-
light the need for a contextual reading of Islamic sources, whose varied
interpretation informs most contemporary debates. By providing an over-
view of the key sources of Islam, this chapter aims at setting the ground
for the volume.
2.2. Primary Sources
2.2.1. The Qur’án
The Qur’án (which literally means recitation or reading) constitutes the
most important source of Islam, which is composed of the divine revela-
tions received by the Prophet, who sought to form a moral socio-political
order operating in accordance with the sacred messages delivered by God.
The Qur’án is the primary and most authoritative source of Islamic law.
Since the Qur’án is believed to contain the literal words of God, it is
deemed the most authentic record of Islamic law,4 incarnating the final,
inimitable and infallible injunctions of everlasting validity. God in the
Qur’án affirms Islam’s complete nature, saying: “Today I have perfected
your religion for you, and I have completed My blessing upon you, and
have approved Islam for your religion”.5 Although the Qur’án expresses
that “[e]very nation has its Messenger”6 and that there is no difference
between these Prophets,7 Muḥammad is believed to have closed the line
of Messengers8 by re-introducing the original and unadulterated teaching
of God. According to Islam, God’s revelations have not been preserved in
their pristine forms in earlier scriptures.9 Muslims thus believe that the
4 Farooq A. Hassan, “The Sources of Islamic Law”, in Proceedings of the Annual Meeting
(American Society of International Law), 1982, vol. 76, p. 66.
5 The Qur’án (translation by Arthur J. Arberry), 5:5.
6 Ibid., 10:48.
7 Ibid., 2:130.
8 Ibid., 33:40.
9 Yúsuf Ali, The Meaning of the Holy Quran, 11th ed., Amana Publications, Maryland,
2008, p. 56.
2. The Principal Sources of Islamic Law
Qur’án is God’s final effort to reconstruct the undistorted message

preached by other Prophets since Abraham.10
The Qur’án, in other words, presents Islam as the very religion that
had been preached by earlier Prophets including Abraham, Noah, Moses,
and Jesus 11 who themselves were originally Muslims. Among other
Prophets, Muslims ascribe to Abraham a prominent standing, as he is con-
sidered a perfect model for the faithful and the harbinger of monothe-
ism.12 The fact that the Muslim tradition rooted itself within the soil of
monotheism rendered the appeal of the Qur’án more acceptable to those
who were already familiar with the monotheistic conception of the uni-
verse. Indeed, the Prophet Muḥammad had never rejected the legacy of
his predecessors; he rather saw himself part of a long series of Prophets
appointed by God to preach the divine truth. Like Abraham, Muḥammad
proclaimed monotheism and advised his followers to comport themselves
in a manner of righteousness and piety. 13 As with Christ, he reminded
humankind of resurrection, the Day of Judgement, and of the punishments
and rewards in the hereafter.
2.2.1.1. The Collection of the Qur’án
Islamic tradition holds that the Qur’án is revealed to Muḥammad by God
through the medium of the angel Gabriel.14 According to Muslim theology
and jurisprudence, the entire corpus of the Qur’án sprang from
Muḥammad’s reception of divine revelations (wahy). Muḥammad re-
ceived revelations in instalments during the Mecca and Medina period,
over the course of twenty-two years (AD 610–632) until his demise.15 The
Qur’án is revealed in Arabic, containing 114 chapters (súrahs), 6,236
verses (áyát), and a total number of 77,934 words. The whole body of the
10 Ibid., 2:127–130.
11 Jonathan Berkey, The Formation of Islam: Religion and Society in the Near East, 600–
1800, Cambridge University Press, Cambridge, 2003, p. 48.
12 John L. Esposito, The Oxford Dictionary of Islam, Oxford University Press, Oxford, 2003,
p. 7.
13 The Qur’án, 2:131–133, see supra note 5.
14 Ibid., 53:1–18.
15 Michael Cook, The Koran: A Very Short Introduction, Oxford University Press, New York,
2000, p. 5.
Qur’án was completed during the lifetime of the Prophet who called on
his scribes to record what had been revealed to him.
The Prophet’s recitations were initially written down on whatever
material came to hand, including palm leaves, wood pieces, and parch-
ment. Under Muḥammad’s supervision, these fragmented pieces were
subsequently collected into súrahs or chapters. Although the Qur’án ex-
isted in its full, albeit fragmented, form since the first revelation, the writ-
ten material was not brought together into a single codex during the
Prophet’s lifetime. The assembly of the entire Qur’ánic text was a lengthy
and arduous task. Most commentators concur that an official codex had
been collected under the rule of Uthmán, the third Caliph, within the peri-
od of 20 years following Muḥammad’s death.16
Uthmán concerned himself with ascertaining whether the texts he
assembled had been directly recited by the Prophet. During this process,
the chief Qur’ánic material was the one collated by Muḥammad’s chief
secretary, Zaid Ibn Thábit. Uthmán is known to have ordered an author-
ised version of the Qur’án to be assembled and copied, and to have com-
manded his governors to destroy all variant texts.17 For one of the main
challenges lay in the fact that Arabic was the language of desert nomads,
and its spoken form was far more sophisticated than its written form at a
time when written Arabic lacked vowels or diacritical marks. This led to
the acknowledgement of seven variant, but equally authoritative, readings
(qira’át) of the Qur’án, which could have caused significant controversy
over the meaning. However, when the Qur’án was redacted and an au-
thoritative version was adopted, this put an end to alternative readings.
This redacted version, effected by a number of learned ṣaḥábah (compan-
ions of Prophet Muḥammad), “has since remained unchanged and unchal-
lenged”.18
16 John Burton, The Collection of the Quran, Cambridge University Press, Cambridge, 1977,
p. 139.
17 Al-Sayyid Abú Al-Qásim Al-Musawi Al-Khu’i, (translated by Abdulaziz A. Sachedina),
Prolegomena to the Quran, Oxford University Press, New York, 1998, p. 135.
18 M. Cherif Bassiouni, “Evolving Approaches to Jihad: From Self-Defense to Revolutionary
and Regime-Change Political Violence”, in Chicago Journal of International Law, 2008,
vol 8, p. 119.
2.2.1.2. The Substance and Structure of the Qur’án

The Qur’án, as touched upon earlier, is deemed to embody an authentic
record of God’s eternal and unalterable word. 19 Incorporating an amal-
gamation of legal and ethical principles, as well as ritualistic and moral
exhortations, the Qur’án provides the fundamental substance of the Islam-
ic law (Sharí‘ah) and imposes a clear set of legal and moral obligations on
Muslims. The Qur’án covers the basic aspects of mundane and spiritual
existence, envisaging guidelines for legitimate and ideal human conduct.20
Lessons of right behaviour in daily matters, and wisdom in spiritual mat-
ters, may thus be sought from the Qur’án. In view of the fact that God’s
ordinance is contained in the Qur’án, the ideal life for Muslims is one that
is lived in line with the relevant Islamic precepts and injunctions, whether
ritualistic, moral or legal in character.21 The Qur’án is thus a system of
duties and responsibilities, which if duly performed may not only give a
believer an inner satisfaction in the temporal domain, but also assure him
a place in Heaven.
Muslim scholars usually distinguish between three main categories
of ethico-legal injunctions in the Qur’án. The first pertains to the doctrine
of belief in God, His messengers and the Day of Judgment; the next is
essentially concerned with ethical human conduct; and the third part is
associated with practical or daily actions of believers under Islamic law.22
These categories are then sub-divided into relevant sections, which,
among other things, deal with rituals, private and public matters, as well
as wide issues of domestic and foreign policy. Whilst the Qur’án incorpo-
rates a detailed set of practical, legal and moral rules, when its meaning
remains obscure or when it is silent on a particular matter, other sources
of Sharí‘ah (which will be explored below) may be drawn on to generate
answers for the problem at hand. The Qur’án, in this context, may be
compared to a constitution that provides the key material on issues of
social, political, legal and practical nature. It is then the role of the scholar,
19 The Qur’án, 10:37, see supra note 5.

20 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society,
Cambridge, 1989, p. 18.
21 Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, Oxford, 1982, p.
11.
22 M. Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice, Edin-
burgh University Press, Edinburgh, 2004, p. 37.
jurist, or legislator to explain or flesh out, while remaining loyal to the

letter and spirit of the main text, norms to address what is required by
concrete circumstances. Naturally, the ever-changing needs of societies
require appropriate refinement and elaboration of Qur’ánic norms through
human reasoning.
It is worth noting that a notable portion of the Qur’án’s contents
had essentially been informed by the prevailing socio-political, economic,
and religious circumstances of its day; thus, many moral, religious, and
social pronouncements of the Qur’án, even though divinely inspired and
transcendental, answer some of the problems faced at the time of
Muḥammad’s ministry. As some of the early verses make it clear, the
Qur’án was primarily concerned with the acute problems of its time,
which include such issues as polytheism, idolatry, the exploitation and
maltreatment of the poor, malpractices in trade, and the overall injustice
affecting society.23 The practical facet of the Qur’án becomes quite evi-
dent when considering that a remarkable part of Qur’ánic revelations was
handed down to Muḥammad over the course of twenty-two years in re-
sponse to practical questions. Not surprisingly, therefore, the Qur’án con-
tains a rich repository of guidance on real-life situations, with injunctions
regulating a vast field, from issues of international relations and matters
of war and peace, down to the habits of everyday life such as relations
between spouses, child custody, eating, drinking, and personal hygiene.
In addition to containing timeless moral and spiritual injunctions,
the Qur’án, then, responded to some of the important socio-political is-
sues of its period. However, there is a controversy on whether the Qur’án
subsumed all previous legislation. Some commentators maintain that Is-
lam invalidated all previous legal systems, because the Qur’án provided a
comprehensive account of everything. 24 Other scholars, particularly
Ḥanafí jurists, assert that only those pre-Islamic rules, which had not been
expressly abrogated by the divine will could be recognised as valid. 25
Evidence suggests that Islam had not repudiated the validity of all pre-
Islamic doctrines; especially during the nascent stages of Islam, there was
23 Fazlur Rahmán, Islam & Modernity: Transformation of an Intellectual Tradition, Universi-

ty of Chicago Press, Chicago, 1982, p. 2.
24 The Qur’án, 16:89; 6:28, see supra note 5.
25 Majid Khadduri, War and Peace in the Law of Islam, Johns Hopkins Press, Baltimore,
1955, p. 3.
widespread adoption of many legal and administrative institutions and

practices of the newly conquered territories. There were “multiple influ-
ences on Muslims in places where they have adopted many social and
cultural practices of pre-Islamic origin”.26 This was natural as the expan-
sion of the Islamic State necessitated the management of foreign people
with their particular traditions, which resulted in the fusion of some raw
Islamic legal material with pertinent local customs and traditions. Promi-
nent examples were seen in the law of taxation, religious foundations
(waqf), and the way in which tolerated (monotheistic) religions were
managed. The retention of some pre-Islamic traditions and local institu-
tions was accompanied by the adoption of novel legal concepts, maxims,
or methods of reasoning. In this way, as Schacht argues, many rules that
had their origin in Roman and Byzantine law, Canon law of Eastern
Churches, Rabbinic law, or Sassanian law, became part of the Islamic
law. 27 Certainly when integrated within the Islamic law, some of such
laws must have assumed a character in tune with the overall tenor of Is-
lam. More importantly, Islam’s rejection of idolatry in favour of God’s
supremacy resulted in the rejection of many pre-Islamic customs and
practices that were idolatrous in nature.28
It is important to highlight the nexus between certain Islamic in-
junctions and pre-Islamic customary law because some Islamic norms
may be better understood in light of knowledge concerning the pre-
Islamic social setting. Hence, when an analyst is confronted with some
obscure verse, a detailed evaluation of the relevant socio-historical back-
drop must be conducted with a view to contextualising the issue involved.
Given that the Qur’ánic material was communicated to the Prophet
piecemeal, it is often possible to comprehend any ambiguity through
studying the historical setting or specific challenges faced by Muslims.
2.2.1.3. The Elucidation of the Qur’án
As with other religio-legal systems, Islamic law has been subjected to
interpretation in varying degrees, a process that has taken such modes of
hermeneutics as traditional, customary, critical, and innovative. Consider-
26 Mushirul Ḥasan, Moderate or Militant Images of India’s Muslims, Oxford University

Press, Oxford, 2009, p. 102.
27 Schacht, 1982, pp. 18–21, see supra note 21.
28 Khadduri, 1955, p. 3, see supra note 25.
ing the socio-historical dynamics that shaped the contours of Islamic law,
any hermeneutical effort should arguably consider the overall historical
context, connected verses and prophetic traditions, as well as the underly-
ing logic, object and the purpose of Islam. As subjectivity constitutes an
inevitable element of interpretation, regular revisiting and review of all
relevant facts and rereading of relevant sources is also essential. But, not-
withstanding the need to keep religious norms responsive to changing
conditions, not every aspect of the religion may be subject to reinterpreta-
tion; for instance, there is very little scope in reinterpreting most ritualistic
rules, or such timeless themes as the unity of God (tawḥíd), the profession
of faith or affirming Muḥammad’s status as the seal of all Prophets.29
For the purposes of interpreting the Qur’án, the aforementioned
contextual method calls for the identification of the general atmosphere
within which a verse was revealed, the particular problem (if any) to
which the revelation responded, as well as the overall corpus, objective,
and spirit of the Islamic legal system. The stress on context-specificity
does not, of course, preclude the analyst from deducing general principles
from a specific command or injunction, provided that such inferences
accord with the fundamental tenets of Islam.
Islamic law is expounded through úṣúl al-fiqh, a method of extract-
ing rules (fiqh) from primary sources. Hence, it is through the branch of
úṣúl al-fiqh that secondary norms may be obtained.30 The elaboration of
Islamic norms has often been necessitated by the changing socio-political
conditions. While the Qur’án states that it explains “everything”,31 and
that nothing is “neglected [...] in the Book”,32 this, as Ramadan argues,
should refer “to general principles, to essential and immutable rules”.33
The Qur’án, in this sense, contains the indispensable elements of legisla-
tion and the imperative will of God out of which secondary rules may be
deduced.34

30 Kamali, 1989, p. 2, see supra note 20.
32 Ibid., 6:38.
33 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation, Oxford University Press,
Oxford, 2009, p. 24.
34 Dien, 2004, p. 35, see supra note 22.
The modalities of interpreting the Qur’án present certain challenges

on account of its directly revealed character and superiority over other
sources. Like other scriptures, the Qur’án may not always be straightfor-
ward in its message,35 which raises the challenge of comprehending the
real sense of a verse while extracting rulings. This phenomenon resulted
in distinct methods of interpretation that emerged within and between
various Islamic cultures of different epochs. Evidently, the passage of
time significantly affected the manner in which some verses are read,
since what had been straightforward during the lifetime of the Prophet
may have appeared relatively obscure to the commentator of subsequent
ages. During his lifetime, Muḥammad expounded the meaning and impli-
cations of opaque passages. In fact, the Qur’án notes that it was incum-
bent upon the Prophet to “make clear to mankind what was sent down to
them”.36 But since the prophetic mission could not be bequeathed to suc-
ceeding Caliphs, both divine legislation and its authoritative interpretation
drew to an end. This led to serious complications, particularly when Islam
embarked upon expansion outside Arabia. The development of Islamic
law would have been much more linear and clear-cut had Muslim rule
been confined to Arabia. The newly conquered territories, including Egypt,
Syria, Iraq, and Persia, presented unprecedented legal challenges that
could not be readily met merely through unelaborated principles. This
challenge compelled Muslim jurists to make recourse to the prophetic
tradition, personal opinion (ra’y) and certain pre-Islamic concepts to sup-
plement the divine legislation and thereby to address the demands of cul-
turally different societies.37
The theme of Qur’ánic order of rank and priority features promi-
nently in textual interpretation; for not all verses, albeit all being of divine
origin, enjoin the same normative status. Some verses are indeed more
imperative than others in the way they impose duties on the believer.
Likewise, some verses may be more direct about what they demand of
humankind; some may be more explicit, while others may appear implicit
in meaning, or they may require to be read in conjunction with other vers-
es.38 Naturally, the broader context of each era marks out the theoretical

36 Ibid., 16:45.
37 Khadduri, 1955, p. 27, see supra note 25.
38 Ismail R. Al-Faruqi, The Cultural Atlas of Islam, Macmillan, London, 1986, p. 246.
contours of the analysis, informing the way in which the textual material
of the Qur’án is understood and applied to real-life situations.
It follows that a commentator may often have a penchant for ap-
proaching the Qur’ánic text with a mindset conditioned by the presupposi-
tions, concerns and expectations of his time. Hence, even when the com-
mentator seeks to identify the rationale behind a verse, which may link the
cause and consequences of the revelation, he is likely to approach the
verse with a frame of mind that searches for its immediate practical impli-
cations. This dialectic relation between the text and its analyst is not only
inescapable, but necessary to retain the scriptural guidance germane to
changing human needs. Such an active engagement with the Qur’ánic
material dovetails with the notion that the Qur’án incorporates sempiter-
nal guidance for humankind of all ages. Indeed, were the Qur’án’s mes-
sage restricted to the questions faced during the time of its revelation, the
‘timeless’ tenor of the text could be compromised; or it might have lost its
central pertinence to Muslims of various epochs who need tailored solu-
tions to complex problems they confront.
One of the barriers to interpretation is the extent to which elabora-
tion may be carried out. The debate among conservative, liberal, reformist,
or revivalist commentators has never actually been about whether there
should be interpretation of the primary sources, but rather, about the de-
gree to which this could occur. In their efforts to extract secondary rulings,
some scholars, including such canonical figures as Abú Ḥanífah, faced
accusations of neglecting the primary sources and disproportionately rely-
ing on their own views. 39 The key concern has always been whether
commentators remained loyal to the divine legislation while distilling
individualised responses. Although, as discussed below, systemic expan-
sion of primary norms was generally interrupted after the age of “classi-
cal” theologians, Muslims have developed various schools of thought
which sought to contribute to the development of Islamic law.40
In their quest to extricate further rules or extrapolate abstract con-
structions to concrete cases, Muslim jurists developed sophisticated meth-
ods of interpretation to reduce the margin of error. These techniques of
law-making make use of deductive, inductive, and analogical reasoning,
39 Ramadan, 2009, pp. 53–56, see supra note 33.

40 John L. Esposito, The Future of Islam, Oxford University Press, Oxford, 2010, p. 88.
distinguishing the general principle (‘ámm) from the specific (kháṣ), the
manifest (ẓahir) from the explicit (naṣṣ), or the literal (ḥaqíqí) from the
metaphorical (majází). Jurists mayalso invoke, among others, the doctrine
of preference (istiḥsán) to respond to a problem in light of such considera-
tions as equity, justice and fairness. 41 To sum up, the main purpose of
generating secondary norms is to safeguard the applicability of primary
sources to evolving socio-cultural context. Nevertheless, as human sub-
jectivity is unavoidable in hermeneutical efforts, there emerged numerous
schools of jurisprudence (with their varying interpretative frameworks)
over the course of Islamic history. The following pages will turn to the
second most important source of Islamic law.
2.2.2. The Sunnah
Loyal observance of the example of the Prophet, along with the com-
mands of God in the Qur’án, plays a key role for Muslims in their quest
to secure peace in this world and achieve salvation in the hereafter. The
prophetic practice, also known as the Sunnah, forms the second principal
source of Sharí‘ah. The Sunnah includes the anecdotal accounts of
Muḥammad’s sayings, deeds, views, habits, or tacit (dis)approvals of cer-
tain practice. The concept of Sunnah is occasionally used to refer to the
practice of Muḥammad’s companions, too. The written account of these
practices is termed the ḥadíth,42 which contains the documented record of
what Muḥammad is considered to have uttered or done during his lifetime.
While the Qur’án embodies the binding law in God’s own words, Sunnah
is taken to be the reflection of God’s wisdom with which the Prophet had
been inspired.43 Confirming this point, the Qur’án demands believers to
follow the model pattern of behaviour exhibited by the Prophet.44
For Muslims, the significance of the Sunnah lies in the fact that
Muḥammad was the final messenger of God, and as such his practice
41 James P. Piscatori, Islam in a World of Nation-States, Cambridge University Press, Cam-

bridge, 1986, p. 4; Kamali, 1989, p. 3, see supra note 20.
42 Mir Mustansir, “The Sura as a Unity: A Twentieth Century Development in Quran Exege-
sis”, in G.R. Hawting and A.A. Shareef (eds.), Approaches to the Quran, Routledge, New
York, 1993, p. 218.
43 The Qur’án, 3:164, see supra note 5; Majid Khadduri, “The Maslaha (Public Interest) and
Illa (Cause) in Islamic Law”, in New York University Journal of International Law and
Politics, 1980, vol. 12, p. 213.
bears a decisive role for a better appreciation of the Qur’án. As Esposito

points out, Muḥammad has over the centuries “served as the ideal model
for Muslim life, providing the pattern that all believers are to emulate. He
is, as some Muslims say, the ‘living Qur’án’”.45 A connected Sunní prop-
osition is that only the Prophet was divinely protected from committing
major errors in interpreting the revelations. This moot doctrine is known
as the ‘Prophetic infallibility’ (iṣmat al-anbiyá). Having rejected the view
that Muḥammad was a fallible being who had been “subject to the same
experiences as the rest of men”,46 apologists of the ‘infallibility’ doctrine
posit that while the Prophet could commit minor errors (ḍalálah) as a
human being, his interpretive infallibility is unquestionable, for he is the
“seal of the Prophets” who passed away without an heir of his stature.47
After him, the argument runs, there remained no intermediary between
God and humankind; and the successors (Caliphs) lacked the mandate to
promulgate, or authoritatively explain, God’s law.48
Although this is not the place to discuss whether the ‘infallibility
doctrine’ stands on solid grounds, it is certainly true that the death of the
Prophet had marked the termination of divine legislation. Remarkably,
shortly before his demise in 632, Muḥammad recited what many scholars
believe to be the final verse of the Qur’án: “Today I have perfected your
religion for you”. 49 This verse indeed signalled the termination of
Muḥammad’s prophetic mission, after which no divine law was to be sent
down. The law of God was henceforth to be developed through (fallible)
human effort, an enterprise whose results had to comply with the basic
tenets of Islam. This fact alone made the traditions ascribed to
Muḥammad all the more important, for they provided a perfect paradigm
for the manner in which divine injunctions must be observed and applied.
45 John L. Esposito, Islam: The Straight Path, Oxford University Press, Oxford, 1994, p. 13.
46 Daniel W. Brown, Rethinking Tradition in Modern Islamic Thought, Cambridge University
Press, Cambridge, 1996, p. 66.
47 Jackson Sherman, Islam and the Black American: Looking Toward the Third Resurrection,
Oxford University Press, New York, 2011, p. 4.
48 Albert Hourani, A History of the Arab Peoples, Faber and Faber, London, 2005, p. 22.
2.2.2.1. The Structure and Role of the Ḥadíths

A ḥadíth is a narration containing a report of what the Prophet said or did
in a certain form as transmitted one of his companions, who in his turn
would relate it to someone belonging to the following generation.50 Every
ḥadíth has two parts. The first part (isnád) comprises a list of narrators
that handed down accounts of the actions, sayings, teachings, decisions,
overt or tacit views of Muḥammad or his immediate companions. This
chain traces the sources through which the Prophetic practice had been
reported with a view to attesting the historical authenticity of a particular
ḥadíth. Isnád employs a classical formula along these lines: “It has been
related to me by A on the authority of B on the authority of C on the au-
thority of D that Muḥammad said […]”. The second part, on the other
hand, contains the actual content or text (matn) of the ḥadíth that com-
municates what the Prophet had reportedly said or done.51 The report’s
main function is to shed light on a wide array of important matters in Is-
lam.52
Roughly since the second century of Islam, Muḥammad’s well-
attested manner of behaviour has been considered to constitute a norma-
tive rule of conduct for Muslims. The phenomenon of precedent or nor-
mative custom, however, is not entirely foreign to the pre-Islamic period;
Arabs have felt bound by tradition or precedent since time immemorial.
The conventional wisdom dictated that the precedent of ancestors was to
be revered and imitated. Adherence to ancient traditions often left no
noteworthy room for new experiments and innovations that could alter the
status quo. Entrenched customs thus presented a significant obstacle to
innovation, so much so that in order to discredit an idea, it was generally
sufficient to label it an ‘innovation’. 53 The emergence of Islam, in this
sense, proved to be the most radical innovation in Arabia at the time. Yet
once Islam successfully prevailed over the Arabian Peninsula, the conven-
50 Annemarie Schimmel, And Muhammad is His Messenger: The Veneration of the Prophet
in Islamic Piety, University of North Carolina Press, London, 1985, p. 26.
51 Israr A. Khan, Authentication of Hadith: Redefining the Criteria, International Institute of
Islamic Thought, London, 2010, p. 28.
52 John Burton, An Introduction to the Hadith Tradition, Edinburgh University Press, Edin-
burgh, 1994, p. 19.
53 Majid Khadduri and Herbert J. Lienbesny, Law in the Middle East, The Lawbook Ex-
change, New Jersey, 2008, p. 34.
tional adherence to customs reasserted itself in the form of following the

dictates of the new religious system.54
Concerning the role of the traditions, jurists reached a consensus
that secondary norms had to be derived from the primary sources (as op-
posed to mere speculative reasoning). To be sure, this necessitated a much
greater emphasis on the documentation of genuine (sahih) traditions. 55
Muslim scholars, among whom Al-Sháfiʻí played a prominent role, sought
to ensure the authenticity of transmitted ḥadíths so that legal certainty and
predictability could be achieved. Rejecting the thesis that the authority of
the Prophet had been that of an individual who had been better placed
than any other human person to interpret the Qur’án, Al-Sháfiʻí defended
the position that the Prophet’s overall practice was divinely inspired. This
thinking, he reasoned, was the inexorable consequence of the Qur’ánic
injunctions to obey God and His Messenger.56 The eventual prevalence of
Al-Sháfiʻí’s proposition that the acts or sayings of the Prophet reflected
the divine will meant that accepted traditions could no longer be rebutted
through content analysis of the narrations.57 It followed that the veracity
of a ḥadíth became generally dependent on the reliability of the chain of
narrators transmitting the tradition. The wide acceptance of this position
eventually raised controversy on the extent to which the reported tradi-
tions could be trusted.
2.2.2.2. Credibility of the Ḥadíth Literature
As alluded to earlier, the Sunnah has hitherto been employed to contextu-
alise and understand the Qur’ánic material, as well as to enrich extant
rules, customs and principles. Yet, the veracity of certain ḥadíths came to
be questioned on the grounds that some of them might well have been
fabricated to consolidate a given religio-political stance – as a certain po-
sition or attitude could be deemed correct, if a reliable chain of transmis-
sion testified to a corresponding practice of the Prophet.
54 Schacht, 1982, p. 17, see supra note 21.

55 Dien, 2004, p. 35, see supra note 22.
56 The Qur’án, 8:20; 4:59, see supra note 5; Andrew Rippin, Muslims: Their Religious Be-
liefs and Practices, Routledge, New York, 2005, p. 223.
57 Noel J. Coulson, A History of Islamic Law, Edinburgh University Press, Edinburgh, 1964,
p. 56.
The possibility of producing seemingly authentic ḥadíth was indeed

not an unlikely risk, which loomed larger when spatial and temporal dis-
tance grew from the source of a reported tradition. Certainly, one of the
most significant factors leading certain jurists to doubt the authenticity of
some ḥadíths was that traditions had only been collected and recorded in
the second and third centuries of Islam. This mindfulness explains why
only such authoritative records of Sunnah as those of Al-Bukhari (d. 870)
and Muslim Ibn Al-Hajjaj (d. 874) have been considered credible by the
majority of scholars.58 Such reliable transmitters related traditions through
a chain of trustworthy authorities, who handed down the relevant piece of
information from generation to generation. The companions of
Muḥammad, who witnessed the practice or heard the sayings of the
Prophet, were undoubtedly best positioned to convey a tradition. After the
passing of the Prophet’s contemporaries, the following generations had to
be content with the information handed down from the earlier genera-
tions.59
One notable source of distrust rose out of occasional inconsistency
and variability found among the relevant traditions attributed to
Muḥammad. This led such scholars as Mu’tazila (d. 748), Sayyid Ahmad
Khan (d. 1898), and Ghulam Ahmad Parwez (d. 1986) to doubt the au-
thenticity of some traditions. But the number of Muslim critics has hither-
to been small, since the majority of scholars recognise the authority of
varied ḥadíths on the basis that there was nothing wrong with the Prophet
having changed tactics in responding to the circumstances.60 While it may
be accepted that flexibility and prudent statesmanship has served the
cause of God and made Islam responsive to the particular challenges it
has faced, the danger of cherry-picking certain traditions (and Qur’ánic
verses, often by divesting them of their context) in a bid to further a cause
has always plagued the Muslim world.
Although the criticism of the ḥadíth literature originated within
Muslim circles, some Western scholars, including Goldziher, Alfred Guil-
lame, and Joseph Schacht, took issue with the very foundation and validi-
58 Abdullahi Ahmed An-Na’im, “The Rights of Women and International Law in the Muslim
Context”, in Whittier Law Review, 1988. vol. 9, p. 49.
59 Ignác Goldziher, Introduction to Islamic Theology and Law, Princeton University Press,
Princeton, 1981, p. 37.
60 Piscatori, 1986, p. 4, see supra note 41.
ty of prophetic traditions as a source of Islamic jurisprudence.61 The main

arguments for their critical position are essentially built upon these prem-
ises: (1) the ḥadíth literature relies on oral transmissions, which signifi-
cantly grew larger than those contained in earlier anthologies; (2) ḥadíths
transmitted by the younger companions of the Prophet surprisingly exceed
those reported by the older ones; (3) the transmission system was applied
in such an arbitrary fashion that the genuineness of the traditions could
not be proved; (4) there are many contradicting ḥadíths that are equally
deemed valid, since Muslim scholars concerned themselves solely with
the validity of the chain of transmission, and not with the content of the
ḥadíth.62 Ignác Goldziher, one of the most prominent critics of the ḥadíth
literature, went as far as to argue that:63
each point of view, each party, each proponent of a doctrine
gave the form of ḥadíth to his theses, and that consequently
the most contradictory tenets had come to wear the garb of
such documentation. There is no school in the areas of ritual,
theology, or jurisprudence, there is not even any party to po-
litical contention, that would lack a ḥadíth or a whole family
of ḥadíths in its favour, exhibiting all the external signs of
correct transmission.
Schacht similarly challenged the credibility of the transmission sys-
tem, positing that it lacked historical value, being largely invented by
those who sought to authenticate their doctrines. Hardly any legal tradi-
tion of the Prophet could therefore be considered accurate, according to
such sceptics.64 Nonetheless, well before such Orientalists, concerns about
the authenticity of traditions had been raised by Muslim scholars who
eventually developed a rigorous method of sifting credible traditions from
apocryphal ones whenever contradictions, vagueness or doubtfulness sur-
faced. This method divided the ḥadíths into three categories: those trans-
61 Shaheen S. Ali, “The Twain Doth Meet! A Preliminary Exploration of the Theory and
Practice of As-Siyar and International Law in the Contemporary World”, in Javaid Rehman
and Susan Breau (eds.), Religion, Human Rights and International Law, Martinus Nijhoff
Publishers, Leiden, 2007, p. 86.
62 Muhammad Siddiqi, Hadith Literature: Its Origin, Development & Special Features,
Islamic Texts Society, Cambridge, 2008, p. 125.
63 Goldziher, 1981, p. 37, see supra note 59.
64 Muhamad Al-Azami, On Schacht’s Origins of Muhammadan Jurisprudence, Oxford Cen-
tre for Islamic Studies, Oxford, 1996, p. 2.
mitted by virtuous people of high religious knowledge; those reported by

people of lesser knowledge, but virtuous in character; and, finally, those
suspected reports that did not fit within the overall matrix of Islam.65 Au-
thoritative traditionalists, such as Al-Bukhari and Muslim, invoked the
said method and applied stringent criteria to collect merely the most au-
thentic traditions. Bukhari is reported to have interviewed more than one
thousand scholars of ḥadíth during his lifetime (810–869), and looked for
transmitters of exemplary character possessing literary qualities. Bukhari
sought evidence to confirm that the transmitters in question had actually
met in real life and learned from one another – a method which differed
from that of Muslims who opined that if two transmitters lived in the
same locale, one could safely assume that they learned from each other.
Bukhari’s relentless search for solid evidence for a real encounter elicited
wider recognition.66
Viewed from this perspective, it seems to be an over-generalisation
to claim that the majority of the traditions emerged from suspect transmit-
ters who, whether directly or indirectly, served the purpose of supporting
a political agenda through forged ḥadíths. True, there exist traditions that
are misleadingly, or with an ulterior motive, attributed to the Prophet,
among which some contravene key Islamic principles, while some others,
albeit fabricated, are yet congruent with Islam’s ethical values including
justice, equality and fairness.67 Moreover, as Coulson notes, there were
also such reporters who were “in the bona fide belief” that the Prophet
would have so acted had he dealt with the same issue.68 While there is no
room in this chapter to discuss this matter extensively, suffice it to note
that some Western scholars are also critical of Goldziher’s and Schacht’s
sweeping dismissal of the ḥadíth literature. These scholars claim that oral
and written transmissions go hand in hand, and that the majority of the
traditions had been scrupulously scrutinised, particularly by such chroni-
clers as Muslim and Al-Bukhari.69 A reasonable solution to the difficulty
65 Goldziher, 1981, p. 39, see supra note 59; Esposito, 2003, p. 217, see supra note 12.
66 Abdullah Saeed, Islamic Thought: An Introduction, Routledge, New York, 2006, p. 42.
67 The Qur’án, 16.90; 4:135; 2:178; 7:56, see supra note 5.
68 Coulson, 1964, p. 42, see supra note 57.
69 Siddiqi, 2008, p. 131, see supra note 62.
of distinguishing authentic ḥadíths from counterfeit ones arguably lies in

the following saying attributed to the Prophet:70
[C]ompare what I am reported to have said or done with the
Book of God. If it agrees, I did actually say it; if it disagrees,
I did not say it.
It follows that if a ḥadíth plainly negates the spirit of the Qur’án, it should
not be taken seriously.
2.3. Secondary Sources
As stated earlier, Muḥammad has metaphorically been described as the
corporeal scripture. Having contributed to establishing a blueprint for a
moral life, his demise imposed a disquieting task on Muslims to keep the
Islamic law responsive to unprecedented challenges. Despite the absence
of continuous prophetic guidance, the companions of Muḥammad eventu-
ally managed to develop the raw legal material by devising new juristic
tools to meet the demands of a rapidly changing social milieu.
These tools, known as the ‘non-revealed’ sources on account of
their non-divine origin, mainly include: (1) ijmá‘: the general consensus
of commentators on a moot point of law; (2) qiyás: the method of analog-
ical reasoning;71 and (3) ijtihád: the application of critical personal rea-
soning in the interpretation of Islamic law.72 These sources, particularly
the ijmá‘ and ijtihád, proved to be crucial in providing answers to ques-
tions of law when primary sources were silent. As alluded to earlier,
norms springing from the primary sources cannot be altered, whilst they
may be subject to interpretation – whether through ijmá‘ or ijtihád all of
which involve derivative legal reasoning. 73 Of course, novel principles
70 Burton, 1977, p. 54, see supra note 16.

71 This chapter, for lack of space, will not focus on such supplementary law-making process-
es as qiyás, which designate the analogical assimilation and application of a principle es-
tablished in one case to subsequent cases involving similar issues. Qiyás is, therefore, not
about bringing about a new ruling, but about the implementation of an extant injunction
(or precedent) to a new case. It is, to put it simply, a tool used by jurists to compare cases
and achieve a ruling by resorting to analogical methodology (see further, Dien, 2004, pp.
50–56, supra note 22).
72 Kamali Hashim, “Methodological Issues in Islamic Jurisprudence”, in Arab Law Quarter-
ly, 1996, vol. 11, p. 3; Noor Mohammed, “Principles of Islamic Contract Law”, in Journal
of Law and Religion, 1988, vol. 6, p. 115.
73 Hassan, 1982, p. 67, see supra note 4.
whose roots are not strictly embedded within primary sources may also be
crafted, provided that the results fit the overall Islamic framework.
Secondary sources have thus provided a degree of flexibility to the
development of law. In fact, although Islamic law owes its origins to the
primary sources, it has overwhelmingly flourished due to juridical activi-
ty,74 which was particularly intense during the classical period of Islamic
civilisation. Classical jurists were keen to harmonise non-peremptory and
derivative principles with socio-political dynamics. Al-Qarafi (d. 1285), in
this context, wrote that “holding to rulings that have been deduced on the
basis of custom, even after this custom has changed, is a violation of
unanimous consensus and an open display of ignorance of the religion”.75
When deriving secondary rulings, however, Muslim jurists have
been restricted relative to their secular counterparts. Non-religious jurists
are certainly restrained with such concerns as the hierarchy of the norms
and principles of equity, but they may rely on their own resources while
making law. The Muslim jurist, on the other hand, must lay bare the will
of God reflected in the Qur’án and credible traditions, rather than pro-
claim the dictates of his own judgement. But this hardly prevented Mus-
lim scholars from expanding on positive law without being cramped in
blind literalism, though they were much more cautious about immutable
principles. 76 Putting it otherwise, early scholars employed personal or
collective reasoning to devise solutions for the immediate challenges,
while trying to remain loyal to the objective, rationale and spirit of prima-
ry sources. As discussed below, it was only in the aftermath of this classi-
cal period that Islamic scholarship assumed a more constrained, text-
oriented approach in disregard of evolving social and human context.
Whilst the supremacy of the holy sources is beyond dispute in Is-
lamic law, equally important is the fact that this body of law is by no
means bestowed upon humans as a panacea for all the troubles afflicting
them. Contribution to the development of the law in keeping with the
shifts of life is hence encouraged, if not ordained, by Islam. One of the
74 Schacht, 1982, p. 5, see supra note 21.

75 Al-Qarafi, cited in Sherman A. Jackson, “Jihad and the Modern World”, in Journal of
Islamic Law and Culture, 2002, vol. 7, p. 9.
76 Bernard G. Weiss, “Interpretation in Islamic Law: The Theory of Ijtihad”, in American
Journal of Comparative Law, 1978, vol. 26, p. 201; Ramadan, 2009, p. 39, see supra note
33.
principal requirements of Islamic belief is that the individual must attain a

level of consciousness whereby he perceives the world not in an unques-
tioning way, but through the eyes of his heart and intellect. Reason in this
sense must be put in the service of comprehending the world and under-
standing the signs of divine presence.77 Indeed, the Qur’án invites and
demands believers to reflect upon the real meaning of messages delivered
to them, and when necessary to elaborate on divine rules. 78 As Weiss
notes, very few rules of the divine legal corpus are “precisely spelled out
for man’s convenience”, thus “man has the duty to derive” more detailed
principles “from their sources” – a task which calls for “human involve-
ment”.79
It is in such an effort to keep pace with changing times that Muslim
jurists crafted very many fresh principles and doctrines. But Islamic her-
meneutics was bound to be derivative in nature, contingent on the abso-
lute authority of God. This meant that there was no automatic validity
accorded to the declarations of the jurist, who could only assert that what
he formulated flowed from the divine law.80 This explains why Muslim
scholarship insists that the outcome of the derivative process constitutes
mere opinions (ẓann), as opposed to definitive knowledge (‘ilm). 81 Re-
gardless of how rigorous the reasoning behind the construction of ẓann
could be, the juridical outcome is indeed indefinite knowledge. The fol-
lowing pages turn in more detail to two most significant secondary
sources: ijtihád and ijmá‘.
2.3.1. Critical Thinking (Ijtihád)
The term ijtihád literally means ‘striving’ or ‘self-exertion’. In legal usage,
it is commonly defined as the endeavour of a jurist (mujtahid) to infer, by
exerting himself to the best of his ability and on the basis of evidence
found in the primary sources, a rule of Islamic law. Ijtihád thus incorpo-
rates an intellectual effort undertaken by qualified jurists to derive sec-
77 Colin Turner, Islam: The Basics, Routledge, New York, 2006, p. 72.
78 The Qur’án, 10:24; 30:8; 30:21; 34:46; 39:42; 59:21; 3:191, see supra note 5.
79 Weiss, 1978, p. 199, see supra note 76.
80 Ibid., p. 203.
81 Jean J. Waardenburg, “The Early Period: 610–650”, in Jean J. Waardenburg (ed.), Muslim
Perceptions of Other Religions: A Historical Survey, Oxford University Press, New York,
1999, p. 4.
ondary norms.82 Such independent reasoning is, then, exercised to provide

answers to questions when the Qur’án and Sunnah are silent.
Reportedly, the permissibility of deducing secondary rulings
through critical thinking had been encouraged by the Prophet himself.
Tradition has it that when Muḥammad appointed Muadh Ibn Jabal as a
judge in Yemen, he questioned the latter concerning the legitimate dynam-
ics of decision-making: “Through which will you judge?”, asked the
Prophet. “Through the book of God”, answered Muadh. “And if you find
nothing in the Book of God?”, returned Muḥammad. “I shall judge ac-
cording to the tradition of God’s Messenger”, said Muadh. “And if you
find nothing in the Messenger’s tradition?”, asked again the Prophet. “I
shall not fail to make an effort [ajtahidu] to reach an opinion”. It is re-
ported that this response pleased the Prophet. 83 Nonetheless, ijtihád by
qualified jurists is not only about deriving norms when the primary
sources are silent; it is also about elucidating the divinely inspired materi-
al, particularly when the latter contained general or imprecise injunctions.
The main role of independent reasoning has thus been to complement,
expound and flesh out the primary norms in a bid to bridge the theory and
practice of Islamic law.84
Ijtihád is often dubbed as independent or critical reasoning, because
its use requires analytical thinking, and not the blind emulation (taqlíd) of
past judgements of authoritative jurists. Ijtihád may hence be said to be
the most significant source of Islamic law after the Qur’án and Sunnah;
for while divine legislation had discontinued after the demise of
Muḥammad, ijtihád retains its role for relating divine rulings to the hu-
man context. The theory of ijtihád clearly acknowledges the import of
critical reasoning in contextualising the law, a process, which requires a
dialectical engagement with relevant texts and ever-changing life. Weiss
is thus right in emphasising that “the Law of God is empirically available
[mainly] […] in the formulations of jurists”.85
82 Vincent J. Cornell, Voices of Islam: Voices of Tradition, Praeger Publishers, Westport,

2007, p. 155; Schacht, 1982, p. 69, see supra note 21.
83 Tariq Ramadan, The Messenger: The Meanings of the Life of Muhammad, Penguin Books,
London, 2007, p. 199.
84 Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human
Rights, and International Law, Syracuse University Press, Syracuse, 1996, p. 27.
85 Weiss, 1978, p. 200, see supra note 76.
It must, however, be stressed that adherence to the letter of texts has

enjoyed pride of place within orthodox Muslim scholarship. The suprem-
acy of the textualist approach, particularly with regard to peremptory rul-
ings, is evident in most Sunní scholars’ attempts to steer clear of all ap-
pearances of formulating new rules independent of the divinely ordained
norms.86 In actual fact, the success of any critical thinking has essentially
been judged by the extent to which consonance is achieved between the
primary legislation and secondary law-making process. In Kamali’s lan-
guage, “since ijtihád derives its validity from divine revelation, its propri-
ety is measured by its harmony with the Qur’án and the Sunnah”.87 The
doctrine of ijtihád, then, does not presuppose a full measure of novelty, as
the interpreter is charged with the duty to elucidate God’s transcendent
will for humans living in various ages and contexts.
This thinking, in other words, presupposes that a Muslim jurist does
not invent rules, but midwifes norms and principles that are already pre-
sent, albeit in a concealed or gnomic form, in sacred texts. However, it
should be reiterated that opinions forged through ijtihád are deemed con-
jectural (ẓann). This means that a Muslim jurist is not bound by the rul-
ings of other jurists exercising ijtihád, unless such an opinion is formed
by a judge in a case constituting precedent. But, as illustrated below, when
an individual opinion is so widely recognised as to generate a consensus
opinion (ijmá‘), it may become binding.
2.3.2. Juristic Consensus (Ijmá‘)
The concept of juristic consensus (ijmá‘) as an authoritative, binding
source of Islamic law was originally conceived through the exercise of
ijtihád undertaken by the Prophet’s companions and learned scholars of
the classical period,88 a phenomenon that highlights the dialectical rela-
tionship between these two secondary sources. While a theological basis
of ijmá‘ may not be found in the Qur’ánic text, it is said to have been
based on a tradition attributed to the Prophet: “My community will not
86 Bernard G. Weiss, The Spirit of Islamic Law, University of Georgia Press, London, 2006,
p. 86.
87 Kamali, 1989, p. 468, see supra note 20.
88 An-Na’im, 1996, p. 27, see supra note 84.
agree on error”.89 This is generally read to mean that after the Prophet, the
Muslim community could concur with man-formulated doctrines and
practices that were not expressed in the Qur’án and Sunnah. Absent pro-
phetic guidance, Muḥammad’s companions (ṣaḥábah) hence invoked the
method of general consensus (ijmá‘) to enrich the Islamic law. New
norms extracted through this method formed a substantial portion of Is-
lamic law, supplementing the primary sources.
The deduction of laws through ijmá‘ enabled jurists to formulate
widely shared principles. But as the creation of new norms had been a
collective effort drawing upon the sacred sources, the prevailing assump-
tion was that novel principles forged through consensus could not be
deemed ordinary in nature; rather, they formed part and parcel of the sa-
cred law. This conclusion was borne out by the aforesaid tradition that the
Muslim community was safeguarded against error. Accordingly, the pro-
cess of ijmá‘ came to assume an “aura of holiness”, the repudiation of
whose outputs “became sinful in the eyes of some”,90 even though the law
obtained via consensus remained derivative in character.
Ijmá‘ generally involved lengthy debates conducted by jurists over
legal, moral, and practical matters. When such learned scholars reached
an agreement on a controversial point, ijmá‘ was declared to have tran-
spired, settling the matter conclusively – or at least until revoked by fur-
ther ijmá‘. The norm created through this process was considered bind-
ing.91 Therein lay the principal difference between ijtihád and ijmá‘, alt-
hough they are interlaced: while the former could engender conflicting
views over a moot point, the latter produced an authoritative response
thereto. Consensus of opinion thus had the advantage of achieving defini-
tive knowledge until a new, invalidating consensus crystallised to replace
the former. As Esposito puts it, “the relationship between ijtihád and
89 Iysa A. Bello, The Medieval Islamic Controversy Between Philosophy and Orthodoxy:
Ijma and Tawil in the Conflict between Al-Ghazali and Ibn Rushd, Brill, Leiden, 1989, p.
35.
90 Ali Khan, “The Reopening of the Islamic Code: The Second Era of Ijtihad”, in University
of St. Thomas Law Journal, 2003, vol. 1, p. 365.
91 Hassan, 1982, p. 65, see supra note 4.
ijmá‘ was an on-going process, moving from individual opinion to com-

munity approval to accepted practice to difference”.92
Certainly, in the absence of consensus opinion, alternative views
were considered equally valid. When there had been competing view-
points advanced by recognised schools of thought, these were correspond-
ingly deemed authoritative. In the absence of unanimity, there was no
basis to require Muslims of various schools to adhere to a single view –
each school could justify their reading of the authoritative sources.
The doctrine of consensus in this sense tacitly recognised difference
over moral and legal issues as inevitable. By the mid-tenth century, juris-
prudential schools had generally demarcated their intellectual territories
through their distinguishing doctrines, expanding upon a sizeable corpus
of politico-legal literature. Among these schools, only the principal ones
managed to survive into contemporary times. These are the Ḥanafí school,
founded by Abú Ḥanífah (d. 767); the Málikí school, established by Má-
lik Ibn Anas (d. 795); the Sháfiʻí school, based on the teachings of Idris
Al-Sháfiʻí (d. 820); the Ḥanbalí school, set up by Ahmed Ibn Ḥanbal (d.
855); and the Ja‘farí school, a Shí’ah school of jurisprudence, following
the teachings of Abú Jafar Muḥammad Al-Baqir (d. 731) and Jafar Sadiq
(d. 765).93 Through scholarly consensus, a notable body of judicial specu-
lations were rendered into categorical rulings,94 giving substance to many
tentative positions.
Over time, ijmá‘ had not only reinforced the authority of learned ju-
rists (‘ulama’), but also largely standardised the legal position on thorny
issues. Arguably, the most damaging consequence of consensus-based
doctrines was that disagreeing jurists had effectively been deterred from
re-examining established judgements. What is more, particularly from the
tenth century onwards, Sunní scholars came to think that since classical
jurists of the calibre of Ḥanífah, Málik, Ḥanbal and Sháfiʻí had ceased to
thrive, jurists of established schools would henceforth dominate the intel-
92 John L. Esposito, Women in Muslim Family Law, Syracuse University Press, New York,
2001, p. 148.
93 Slim Laghmani, “Les Écoles Juridiques du Sunnisme”, in Pouvoirs, 2003, vol. 104, p. 25.
94 Wael B. Hallaq, “On the Authoritativeness of Sunní Consensus”, in International Journal
of Middle East Studies, 1986, vol. 18, p. 428.
lectual scene of the Muslim jurisprudence. 95 Over time, Muslim jurists

had been urged against challenging entrenched doctrines, a stance which
paved the way to orthodoxy where more liberal thinking was replaced by
analogical reasoning and crude modelling on precedents.
2.3.3. The Temporary Ending of Critical Thinking
It was stressed above that, by the turn of the ninth century, independent
reasoning and consensus-based doctrines led to the growth of a sizeable
corpus of rulings and precedents. From this point onwards, however, most
scholars, generally representing the Sunní tradition, came to claim that all
key questions of law had been resolved by major schools, and hence per-
sonal interpretation of Islamic law was no longer necessary.96 The early
signs of legal rigidity had already become visible due to the purported
infallibility of the consensus method. Scholars of this age posited that
since all crucial questions had been exhaustively settled, the future activi-
ty of the jurist needed to be confined to the clarification of the law or doc-
trine as had already been laid down. The task of the jurist was simply to
emulate (taqlíd), follow or expound the existent precedent or principle.97
This policy finally assumed an official character by the declaration
of the Iraqi jurists to “close the door” for the exercise of ijtihád,98 which
confined independent reasoning chiefly to applying precedents, and to
drawing straight conclusions from the recognised handbooks. This signi-
fied that legal norms could no longer be extracted directly from the prima-
ry sources, but from the textbooks of recognised schools, and hence any
juristic attempt to breach the confines of endorsed doctrines could give
rise to claims of heresy.
95 Wael B. Hallaq, “On the Origins of the Controversy about the Existence of Mujtahids and
the Gate of Ijtihad”, in Studia Islamica, 1986, vol. 63, p. 136; Bernard Lewis, The Middle
East: 2000 Years of History from the Rise of Christianity to the Present Day, Phoenix Press,
London, 2000, p. 225.
96 Esposito, 1994, p. 195, see supra note 45.
97 Bernard Lewis and Buntzie Ellis Churchill, Islam: The Religion and the People, Wharton
School Publishing, New Jersey, 2008, p. 29; Karima Bennoune, “As-Salámu Alaykum?
Humanitarian Law in Islamic Jurisprudence”, in Michigan Journal of International Law,
1994, vol. 15, p. 613.
98 Irshad Abdal-Haqq, “Islamic Law: An Overview of its Origins and Elements”, in Hisham
M. Ramadan (ed.), Understanding Islamic Law: From Classical to Contemporary, AltaMi-
ra Press, Oxford, 2006, p. 21; Wael B. Hallaq, “Was the Gate of Ijtihád Closed?”, in Inter-
national Journal of Middle East Studies, 1984, vol. 16, p. 5.
Arguably, in addition to the propensity of dominant circles to main-

tain the politico-legal status quo, a key contributor to the discontinuation
of ijtihád had been the concern to standardise the legal tradition in an em-
pire whose borders stretched far and wide. Muslim rulers and orthodox
scholars alike dreaded the possibility of divisive impact of critical think-
ing and independent reasoning over the unity of Islamic jurisprudence-
which was already splintered into numerous schools. Standardisation of
the tradition through imitation and strict analogy could initially have pre-
vented the intrusion of anomalous concepts, ideas, or traditions. However,
casting the law into rigid formulas and black-letter analyses, and divesting
the tradition of its dynamism eventually took its toll on the progress and
adaptability of Islamic law.
Certainly, Muslim jurists had not altogether abandoned the practice
of independent reasoning. 99 For instance, the eminent philosopher and
jurist Al-Ghazálí (d. 1111) argued that critical thinking based on wider
analogy, as opposed to narrow syllogism, and on the general purposes of
law was permissible.100 Ibn Taymiyya (d. 1328) likewise advocated the
indispensability of ijtihád so that Islamic thought could be saved from
stagnation.101 Nonetheless, the tide of relying on orthodox interpretation
of extant sources progressively rose, and over the centuries far fewer ju-
rists claimed to possess the required qualifications to formulate novel
ideas. Hence, whilst the doors of ijtihád remained ajar, Muslim jurists
ceased to widely exercise it to resolve new problems. As Hashmi observes,
the fact that some of the most canonical source books on Islamic law, like
Al-Shaybání’s work on Islamic law of nations (Kitáb Al-Siyar Al-Kabír),
remain centuries old demonstrates the extent to which Islamic thought
stagnated.102 A mental straightjacket of this sort indeed stunted the Mus-
lim law for nearly a millennium. Be that as it may, there is no hard-and-
99 Abdulaziz A. Sachedina, The Just Ruler in Shi’ite Islam: The Comprehensive Authority of
the Jurist in Imámite Jurisprudence, Oxford University Press, Oxford, 1988, p. 159.
100 Imran A. K. Nyazee, Theories of Islamic Law: The Methodology of Ijtihád, The Other
Press, Islamabad, 1994, p. 195.
101
Bernard Haykel, “On the Nature of Salafi Thought and Action”, in Roel Meijer (ed.),
Global Salafism: Islam’s New Religious Movement, Columbia University Press, New York,
2009, p. 43.
102 Sohail H. Hashmi, “Islamic Ethics in International Society”, in Sohail H. Hashmi (ed.),
Islamic Political Ethics: Civil Society, Pluralism, and Conflict, Princeton University Press,
Princeton, 2002, p. 151.
fast rule in Islam to prevent contemporary scholars from resorting to ijti-

hád to invigorate the law and make it more responsive to current realities.
2.4. Conclusion: Re-opening the Door for Critical Thinking
There is little doubt that blind adherence to orthodox doctrines up until
modern times has, in large measure, been responsible for the decline of
Muslim thought in almost all intellectual realms. The artificial shackles
placed on Islam’s inherent dynamism further paved the way for Western
domination and colonialism in all its forms and manifestations over large
parts of the Muslim-majority world. This eventually sparked considerable
debate over the ways in which such hegemony could be countered and the
once-glorious Islamic culture could be resurrected. By the end of the
eighteenth century, it became unmistakably clear that the key institutions
of the Muslim world were in steep decline, as judged against Western
standards and progress in most areas that were defining the socio-political
and economic contours of the modern period.103
Western domination eventually compelled Muslim thinkers to re-
flect on the precarious balance between entrenched religious standards
and the changing demands of modern exigencies. The pressures exerted
by such material and conceptual novelties, paired with the colonial enter-
prise over Muslim countries, eventually divided Muslim intellectuals as to
whether essential modern concepts, ideas and institutions needed to be
integrated or rejected-whether wholly or in part.104 As Esposito puts it,
Muslim reactions to Western power and domination ranged from rejection
to adaptation, from a policy of cultural isolation and non-cooperation to
acculturation and reform.105
By the late nineteenth century, reformist movements incrementally
gained momentum within Muslim intelligentsia, advocating an overhaul
of politico-legal, economic, military and cultural institutions.106 Irrespec-
tive of their intellectual backgrounds, almost all reformist thinkers chal-
103 Harry F. Hinsley, Power and the Pursuit of Peace: Theory and Practice in the History of
Relations between States, Cambridge University Press, Cambridge, 1963, p. 153.
104 Fazlur Rahmán, Islam & Modernity: Transformation of an Intellectual Tradition, Universi-
ty of Chicago Press, Chicago, 1982, p. 4.
105 John L. Esposito, Islam and Politics, Syracuse University Press, Syracuse, 1987, p. 43.
106 Khaled Fahmy, All the Pasha’s Men: Mehmed Ali, His Army and the Making of Modern
Egypt, The American University in Cairo, Cairo, 1997, p. 253.
lenged the status quo ante in a quest for ways to transform their societies
by, among other things, criticising dogmatic religious premises and advo-
cating progress to reverse the tide of decline. Islam, they essentially main-
tained, had to undergo a process of reformation and reinvigoration in re-
spect of “mutable principles”107 so that Muslims could awaken from their
debilitating slumber that rendered Islamic thought bankrupt of any viable
intellectual remedy responsive to modernity.
Reformers saw the restrictions on innovative thinking as hampering
the progress of Muslims, positing that each generation of Muslims must
be permitted to resolve the particular problems of their age through criti-
cal deliberation. For only in this way would the deleterious effects of un-
questioned emulation be averted and the richness of Islamic thinking be
saved from rigid dogmas. Reformist thinking hence highlighted the im-
perative for substantial reinterpretation and reconstruction of many basic
concepts and principles via free discussion, open-mindedness, and rigor-
ous scholarship.108
The impact of such reformist calls has hitherto been notable across
the Muslim world, which, particularly since the nineteenth century on-
wards, has gone through dramatic transformations, including the phenom-
ena of modernity in all spheres of life, socio-political liberalisation, and
independence from colonial subjugation. In an effort to allow Islamic law
to meet the growing challenges of faith and contemporary exigencies,
many reformist-minded thinkers have rightly championed the revival of
independent, critical thinking. Among the most pressing problems consti-
tuting battlegrounds for reformists have been such controversial themes as
science vis-à-vis religion, secularism, rule of law, religious freedoms, hu-
man rights, and Islamic use of force.109 Having drawn on the overall Is-
lamic ethical framework, which places significant emphasis on such no-
tions as justice, equity, non-discrimination and reciprocity, Muslim schol-
107 John L. Esposito, “Trailblazers of the Islamic Resurgence”, in Yvonne Yazbeck Haddad,
John Obert Voll and John L. Esposito (eds.), The Contemporary Islamic Revival: A Critical
Survey and Bibliography, Greenwood Publishing, Westport, 1991, p. 53; Beverly M. Ed-
wards, Islamic Fundamentalism since 1945, Routledge, London, 2005, p. 20.
108 Olivier Roy, Secularism Confronts Islam, Columbia University Press, New York, 2009, p.
45.
109 Abdullahi Ahmed An-Na’im, Islam and the Secular State: Negotiating the Future of Sha-
riʿa, Harvard University Press, Massachusetts, 2008, p. 111; Ramadan, 2009, p. 207, see
supra note 33; Esposito, 2010, p. 86, see supra note 40.
ars still seek to address these thorny problems that require radical rethink-
ing.
One critical consequence of this change in perspective is that non-
eternal rulings may now be understood against the backdrop of their polit-
ico-cultural setting and context that provided the rationale thereof. Conse-
quently, such a contextualised method of hermeneutics requires the aban-
donment of outdated doctrines, except for timeless principles, in favour of
developing new modes of thinking. This will in all likelihood also enable
Muslims to undercut the generally ideological and biased portrayal of
Islam as an inherently war-like and obscurantist faith. Finally, reopening
the door widely for critical thinking has the potential to demonstrate the
complexity of religious attitude towards issues of warfare, peace and
criminal justice – themes to which the remainder of this edited collection
will devote attention.
Nuremberg Academy Series No. 2 (2018):
Tallyn Gray (editor)
Mindful of alleged and proven core international crimes committed within the main-
ly-Muslim world, this book explores international criminal law and justice in Islamic
legal, social, philosophical and political contexts. Discussing how law and justice can
operate across cultural and legal plurality, leading Muslim jurists and scholars em-
phasize parallels between civilizations and legal traditions, demonstrating how the
Islamic ‘legal family’ finds common ground with international criminal law. The book
analyses questions such as: How do Islamic legal traditions impact on state prac-
tice? What constitutes authority and legitimacy? Is international criminal law truly
universal, or too Western to render this claim sustainable? Which challenges does
mass violence in the Islamic world present to the theory and practice of Islamic
law and international criminal law? What can be done to encourage mainly-Muslim
states to join the International Criminal Court? Offering a way to contemplate law
and justice in context, this volume shows that scholarship across ‘legal families’ is a
two-way street that can enrich both traditions.The book is a rare resource for prac-
titioners dealing with accountability for atrocity crimes, and academics interested
in opening debates in legal scholarship across the Muslim and non-Muslim worlds.
The book contains chapters by the editor, Onder Bakircioglu, Mashood A. Baderin,
Asma Afsaruddin, Abdelrahman Afifi, Ahmed Al-Dawoody, Siraj Khan, Shaheen Sardar
Ali and Satwant Kaur Heer, and Mohamed Elewa Badar, in that order.
ISBNs: 978-82-8348-188-4 (print) and 978-82-8348-189-1 (e-book).
Torkel Opsahl Academic EPublisher

E-mail: [email protected]
URL: www.toaep.org

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Islam and International Criminal Law and Justice

Tallyn Gray (editor)

© Torkel Opsahl Academic EPublisher, 2018. All rights are reserved.

* Onder Bakircioglu is an Associate Professor of Law at the University of Leicester, United

Nuremberg Academy Series No. 2 (2018) – page 15

Nuremberg Academy Series No. 2 (2018) – page 16

Qur’án is God’s final effort to reconstruct the undistorted message

Nuremberg Academy Series No. 2 (2018) – page 17

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2.2.1.2. The Substance and Structure of the Qur’án

19 The Qur’án, 10:37, see supra note 5.

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jurist, or legislator to explain or flesh out, while remaining loyal to the

23 Fazlur Rahmán, Islam & Modernity: Transformation of an Intellectual Tradition, Universi-

Nuremberg Academy Series No. 2 (2018) – page 20

widespread adoption of many legal and administrative institutions and

26 Mushirul Ḥasan, Moderate or Militant Images of India’s Muslims, Oxford University

Nuremberg Academy Series No. 2 (2018) – page 21

29 The Qur’án, 7:158, see supra note 5.

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The modalities of interpreting the Qur’án present certain challenges

35 The Qur’án, 3:7, see supra note 5.

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39 Ramadan, 2009, pp. 53–56, see supra note 33.

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41 James P. Piscatori, Islam in a World of Nation-States, Cambridge University Press, Cam-

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bears a decisive role for a better appreciation of the Qur’án. As Esposito

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2.2.2.1. The Structure and Role of the Ḥadíths

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tional adherence to customs reasserted itself in the form of following the

54 Schacht, 1982, p. 17, see supra note 21.

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The possibility of producing seemingly authentic ḥadíth was indeed

Nuremberg Academy Series No. 2 (2018) – page 29

ty of prophetic traditions as a source of Islamic jurisprudence.61 The main

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mitted by virtuous people of high religious knowledge; those reported by

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of distinguishing authentic ḥadíths from counterfeit ones arguably lies in

70 Burton, 1977, p. 54, see supra note 16.

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74 Schacht, 1982, p. 5, see supra note 21.

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principal requirements of Islamic belief is that the individual must attain a

Nuremberg Academy Series No. 2 (2018) – page 34

ondary norms.82 Such independent reasoning is, then, exercised to provide

82 Vincent J. Cornell, Voices of Islam: Voices of Tradition, Praeger Publishers, Westport,

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It must, however, be stressed that adherence to the letter of texts has

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ijmá‘ was an on-going process, moving from individual opinion to com-

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lectual scene of the Muslim jurisprudence. 95 Over time, Muslim jurists

Nuremberg Academy Series No. 2 (2018) – page 39

Arguably, in addition to the propensity of dominant circles to main-