The Relevance of Ikhtilaf to Family Law (1/2)

The above brief historical overview of ikhtilaf and related theories suggest two very important facts about the nature of fiqh. First, fiqh offers choice among several alternate opinions; second, it is a social construction of the Shari‘ah. As these points are extremely relevant to present-day debates on Muslim family laws, I will explain them here.

i. Fiqh as Alternate Opinion

In order to understand the nature of fiqh, we must note that we know very little about the law as it was practised in the pre-modern period. The history of Islamic law is still to be written; what we have instead is a history of jurists and their schools. We have records of some legislation by the first four caliphs, but we know very little about the laws introduced by the later caliphs, kings and sultans. The doctrine of ikhtilaf al-fuqaha can be very helpful in writing this history. We commonly presume that fiqh was the source of law in pre-modern Muslim societies. This assumption identifies Shari‘ah and law with fiqh and thus tends to ignore a very significant contribution that fiqh made as an alternate legal system that the jurists built to counter the royal laws. It offers a new perspective on the development of law in Islam, which is particularly relevant to the reform of Muslim family laws today.

In my view, the jurists’ insistence on diversity suggests that fiqh developed as an alternate set of laws parallel to the then-existing legal system. It was a critique of the contemporary system. This aspect has been overlooked because we do not have sufficient knowledge about how the law operated in practice. Nothing can be said with certainty, and therefore the following points are made to suggest the need for rewriting the history of Islamic law.

It is generally believed that fiqh was the law of the caliphate in courts and markets, but the absence of codes and documents on the one hand and continuous diversity in fiqh on the other hand questions that view. Records of qadi judgements are available only after the sixteenth century. We know from the Adab al-Qadi literature that records of the qadi judgements were kept meticulously, but since fiqh did not recognize them as precedents or as a source of law, they were rarely made part of the fiqh texts. Some recent studies show similarity between fiqh and these judgements, but it is difficult to conclude that fiqh was the only source of law for the qadis. The literature on disagreement between qadis and jurists suggests that the qadis were free to interpret the Qur’an.

The institution of qadi was a combination of the hakam (arbiter) and the mufti (expert in fiqh). In the beginning, the institutions of mufti and qadi overlapped each other. During the Umayyad caliphate when the office of qadi was defined as a deputy of the caliph and governor, the religious authority of qadis became debatable among the jurists. Muftis began functioning as private experts in law. Fatwa became an institution alternate to the qadi court during the formative period of Islamic law.

We know comparatively more about fatwas than about qadi judgements. Qadis were appointed and controlled by caliphs. Some of the qadis were not qualified jurists and were, therefore, advised to consult muftis. Fiqh, though not enforced as caliphate law, served as one of the sources of law for the qadis. Qadis asked muftis for fatwas on complex issues. While the jurisdiction of qadis was limited, fatwas had a larger scope.

From the Adab al-Mufti manuals, we also learn why it was possible for the institution of fatwa to develop independent of caliphate law. Apparently, it was because qadi judgements addressed specific cases, which were considered ephemeral. These cases could not be generalised to become legal norms. Further, compared to qadis, jurists had a comparatively more independent role in the production of legal texts, legal education and fatwas.

Ikhtilaf literature also reveals that most of the jurist doctrines were not derived directly from the Qur’an and the Hadith; they were often derived from the opinions and practices of the Companions and their Successors. The ikhtilaf literature also refers to the opinion of the Companions (qawl al-sahabi) as an accepted source of law. This is particularly true about family laws. Recent studies of divorce laws in Islamic law illustrate how fiqh relies more on opinions of the Companions and their Successors than on the Qur’an and the Sunnah of the Prophet.[1]

A significant example is the disagreement among the jurists on the requirement of a marriage guardian (wali) for a marriage contract to be considered valid. Imams Malik and Shafi‘i rule that a marriage contract is not valid without the consent of a marriage guardian. Abu Hanifa, his disciple Zufar, Sha’bi and Zuhri do not consider it a requirement provided the couple is socially compatible. Da’ud al-Zahiri requires a guardian when it is the bride’s first marriage and Ibn Qasim regards the presence of a guardian as commendable, but not obligatory. Ibn Rushd analyses this disagreement, pointing out that it came about because there was no clear verse or Hadith on the subject. The Qur’anic verses presented by the jurists to justify their views are at best implicit in these meanings. The two Hadiths reported by Ibn Abbas and ‘Aisha also do not support the jurists’ view explicitly. Technically, questions have been raised about both Hadiths as to whether they are sayings of the Prophet or the opinions of Ibn Abbas and ‘Aisha.[2]

The development of fiqh and its diversity suggest that legal interpretation is a continuous process that allows legal norms to remain relevant to social norms. The disagreement among the jurists, particularly on matters relating to family laws, suggests the importance of going behind the text to find universal legal principles that can accommodate social changes.

 (Continued)