The Variables and Nonvariables in Legal Thought
A major conceptual problem with some Muslim elites is their taking the Shari'ah (divine universal injunctions) and the fiqh (jurisprudential law) as one and the same. The former consists of the direct and incorruptible speech (kalam.) of Allah the Exalted and the protected Sunnah of the Prophet, while the latter is deduced from the nusus (injunctions) of the Qur’an and the Sunnah keeping in view the explicit and implicit nusus and the maqasid (principles and objectives of the Shari'ah). This makes fiqh historical and variable while the Shari'ah normative and eternal.
A legal command (formulated by a jurist) is always subject to time and space. Even ijma (consensus) can be subject to review and change by an authority of equal or greater competence according to the doctrines of law in Islam. It is a misconception that centuries old legal inferences reflected in the fiqh, or fatwa (views of jurisconsults) are invariably conclusive and universal.
The only nonvariables are the Qur’an and Sunnah.
In simple words, it implies that the bulk of fiqh literature of the six major schools of law — the Hanafiyyah, Malikiyyah, Hanbaliyyah, Shafiyyah, Jafariyyah, and Zahiriyyah — is subject to review and re-codification.
The very presence of these six or more schools of law indicates that for their founders the legal deductions of earlier fuqa- ha were subject to review and reconsideration. Not only that, even within one school of law we find revisions sometimes by the founder himself. For example: Imam al-Shafi, or by scholars within that tradition such as Imam Muhammad al-Shaybani (d. 189/805) and Abu Yusuf (d. 181/797), within the Hanafiyyah. Both latter scholars, while devout disciples of Imam Abu Hanifah (d. 150/767), disagreed with his view on a number of issues and held their own positions.
If fiqh was rigid and non-dynamic, we would have one single madhhab or maslak for all the Muslims. The very nature of fiqh accepts the possibility of variations. However, to allow fiqh to modify and update itself, the axiological basis must remain nonvariable. If truth itself becomes variable, its objectivity will be impaired. That is why the Qur’an calls itself: al-furqan (the criterion), al-hukm (the command), muhkam (the firmly established), al-hidayah (the guidance), al-shari'ah (the way). The Qur’an is the mainstay — the unchanging source for all legal deductions.
Despite nonvariability of the Qur’an and the Sunnah there exists enormous room for legislation, even fresh legislation. There is also scope for “adaptation,” provided such adaptations are not contrary to the objectives and purposes of the Shari'ah.
Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.
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