“It is commonly thought that God’s law is certain and all the follower has to do is to follow. This unfortunately is a myth. God’s law has to be deciphered and even in the process of interpretation, there remains broad uncertainty. A conservative Muslim may gasp at such a statement but the history of Islamic law proves that Islamic jurists were conscious that offering any opinion was simply that: an opinion. Rizwan Rahman and Sohaira Siddiqui discuss this further. “
How we conceptualise law is a question that has perplexed the minds of jurisprudential scholars for centuries. With the rise of the nation-state, there appeared to be a simple response: Law is that which is promulgated by the sovereign, which prescribes punishment for non-obedience. This definition, however, gathered its critics. What is a sovereign? Are there laws on the sovereign, and if so then how can a sovereign be a sovereign? Known as the positivist idea of law, scholars such as HLA Hart and Hans Kelsen attempted to amend and improve on this definition.
Yet the original idea is much to do with the monolithic community present in most nation-states in the 19th century. Thomas Hobbes regarded the state as being a body, which coincidentally reflects the Prophet Muhammad’s own statement of the Muslim community being one body. In this notion of the one body, each member of the polity is assumed to have some emotive connection to other members and wishes the good for the other as he does for himself. The law then becomes the means by which the polity can be organized to ensure this is realized, and the government, as representatives of the people, is vested with the power to determine and issue law which is for the benefit of the population under its rule.
This simple representation of the relationship between the people and the law is turned on its head when there is an influx of communities from different states. In such a situation, that emotive bond is weakened given that the person – be he Polish or Pakistani – has an emotive connection with another nation. In entering a new country and mixing with a new polity, he is compelled to follow the law of a government that is not representative of him. Complications further arise when considering religious law and occasionally conflicts with secular law.
The 20th century has witnessed a great influx of communities with their own cultures, and oftentimes, set of laws to which they abide by.
Immigrants would be following two sets of laws: one public and one private. The result was legal pluralism, in which there were many sovereigns, some explicit, some implicit.
Legal pluralism cannot be reduced to just the position of the immigrant; its scope is far wider. Global trade and technological advances have meant that the world is a vast expanse of receding horizons. Speed of transport has meant distances have been cut down significantly; telecommunication development has meant one can speak (and see) someone living far away almost immediately; and goods and services can be traded anyway in the world to the point where a villager in Bangladesh is drinking coke made in the USA.
The global village, as it is so aptly termed, means that there is far more interaction between peoples, and far more awareness and acceptance of peoples of different cultures and laws. It results, once again, in legal pluralism, as the law has to accommodate more than just one way of thinking or one way of transacting. International commercial deals involve different parties from different countries with different laws. In negotiations, parties.
The Unyielding will have to determine the jurisdiction to oversee the transaction. So you could have a situation where a Qatari transacts with a Malaysian, and the law of the contract is English.
Legal pluralism affects the way scholars look at law. Law as a fixed body of rules, changing according to the commands of the sovereign, is a less appropriate assessment of law, and more value can be found by assaying how peoples react and generate law. In this regard, one does not necessarily have to move to the statute books to pinpoint law. Law can be found within the way communities regulate relationships with one another whether within a country or between transnational communities.
Nevertheless, if one is to reduce law to some basic components, the idea of the sovereign, punishment and fixity of law once promulgated would constitute law’s basic foundations. Irrespective of the confluence of laws at certain meeting points, to avoid chaos there needs to be some recourse to something concrete. Law cannot be amorphous changing by the whims of many individuals.
This is the challenge facing Islamic financial law given that it is a body of law created away from the authority of the nation-state. Islamic financial law is not the product of some legislature in the Muslim world. It was very much a private endeavour with many individuals congregating to determine the contours of this new field. Their starting point was identifying God’s law, which is what would God have ordered in any given situation. This gives Islamic financial law a divine authority.
But there is an immediate weakness in this assumption. God has not directly issued law; most of what the Shari’a advisory boards do is to infer what God’s law is. Herein is the controversy because conflicts arise, and if conflicts arise, then there is no certainty of law. If there is no certainty, then how can one pronounce this as God’s law, or rather this product as Shari’a compliant, without acknowledging that the result is man’s law just with different principles from which to derive the law. To put it another way, if man is in fact determining law, then can God be regarded as the sovereign?
This is a highly controversial question, especially in today’s world in which countless groups and individuals are pining for the imposition of the Shari’a. An idealism has infected many Muslims who see some monolithic Islamic law that can be readily issued for any situation and at any time, and it is for a state to ensure that this is passed.
If anything, Islamic finance has proven that there will be conflict and certainty cannot be claimed for the veracity of many products. The differences of opinions between scholars have led to varying approaches along with criticisms of scholarly interpretations. Tawarruq, the poster product of dubious structuring, is seen by many as being against the Shari’a; yet it has credibility in annals of Islamic law. A seed of doubt then should be placed in the minds of those who are firm in their belief in its prohibition.
The Uncertain Search for God’s Law
Indeed, for classical scholars, the idea of certainty in the law was desired but very rarely achieved. In Islamic law there are perhaps a few laws that can be assumed to be certain, and most are quite general.
For instance, one must pray, but how one prays is subject to contention. Even the idea of the five compulsory prayers can have a question mark on it if one is to consider Shi’a practices. For classical scholars, they understood that in determining law they were entering a realm of uncertainty.
The common phrase that seals most books of Islamic law is ‘and God knows best’. Underlying this seemingly innocuous phrase is a pervasive epistemology which actively informs the ethos of the Islamic jurisprudential system. The realm of Islamic law can most simply be understood as one designed to produce rulings based on indicants extrapolated from various sources. The primary textual sources are the Quran and the sayings of Muhammad, the hadith. Due to their finite nature, scholars were forced to look elsewhere for support and guidance during the process of legal derivation.
In the absence of textual sources, numerous non-textual sources such as the consensus of the juristic community (ijmā) and analogical reasoning (qiyās) rise to the fore. In using these non-textual sources jurists acknowledge the absence of a direct divine indicant in the instance of their case, but continue to predicate their argument upon some divine indicant in the textual sources which can provide insight to their particular situation.
Though indicants can be isolated, they cannot be known with complete certainty since that would imply that fallible human beings can comprehend infallible divine intent. Consequently, any legal opinion proffered was understood to be probable, and with the rise of unique cases, and the extension of non-textual sources, the law itself was eventually understood to be overwhelmingly probable.
Emerging from this was a juristic class that was cautious of the limits of their enterprise as they realized they could not say with certainty whether they penetrated the realm of God’s law irrespective of their belabouring efforts. This self-conscious epistemology meant that juridical opinions were continuously open for reinterpretation. Even when Islamic legal thought was concretized into four legal schools, elite jurists (mujtahids) could independently decide how constrained and attentive they wanted to be to prior scholarship.
On the one hand, this type of legal epistemology can be construed as being antagonistic to the very purpose of law in general, namely to give definitive rulings based on evidence for specific situations; however, on the other hand, it resulted in a responsive legal tradition which was able to evolve in ever-different ways.
At the heart of the epistemology held by jurists was an awareness of the limits of one’s knowledge, and of one’s vocational abilities. But if pushed into the realm of scepticism and fully applied in the realm of law, it could lead to a type of legal relativism that Islamic jurists were unwilling to countenance. In addition to avoiding the pitfall of legal relativism, jurists had to solve another quandary. Since legal rulings produced were epistemically probable, then one cannot truly know the merit of their actions, and thus what compels adherence and obedience. The juristic answer to this problem was simple; if one can establish an overwhelming probability that the legal ruling was one countenanced by God, then there is an obligation to act accordingly. From this perspective, action is still necessitated even though jurists were unable to circumvent the probable nature of legal rulings. This legal framework was adopted by the majority because it allowed for legal evolution while still compelling action and remaining cognizant of interpretational limitations. For a small minority who disapproved of this framework, they held that it promoted the production of dubious rulings that were not adequately substantiated with scriptural sources. One early attempt to reject this epistemology was proffered by the Zahiri school founded by Dawud Ibn Khalaf al-Zahiri (d. 883). For the Zahiris, only apparent and clear textual indicants could be taken as the foundation for legal rulings, and non-textual sources, as well as non-apparent indicants, must be discarded. Because jurists were charged with ascertaining the law, al-Zahiri argued this entailed confidence and certainty in the decisions such that the door for future debate is firmly shut—essentially eliminating the possibility of relativism. With this framework, the Zahiri school was able to avoid the problem of epistemological uncertainty proposed by the majority of jurists; however, the overwhelming emphasis on textual sources created a narrow legal system which could not accommodate evolution in the way a system accepting of non-textual sources could. The Zahiri attempt at remedying this paradoxical epistemology exemplifies the difficulty of creating a framework that both satisfy the need for certainty and accommodates change through an expansive methodology.
The Hallowed Position of the Shari’a Board
Such a formalistic approach as adopted by the Zahiris could never have succeeded in Islamic finance. Attempting to transpose a premodern law to modern situations is wrought with difficulties, and therefore Islamic finance had to abstract from classical Islamic law to produce solutions in today’s context. The endeavour is impressive given that the Islamic financial industry has grown rapidly in the last forty years. Yet the best scholars can say about the law they issue is that it is a probable reflection of God’s law. This is more the case today given that the financial system is radically different to the one of yesteryear. Any acceptable product then is going to be at best an assumption of God’s law; there can be little certainty as to whether it is.
In consideration of this point, one must ask whether the current manifestation is the best form of the Islamic finance industry. Many would argue that it is not, failing to account for socially responsible ideals.
Others would say the industry does not adhere to the spirit of Islam, while others would say that there has been a misuse of Islamic law to justify questionable products. Irrespective of this, people are still flocking to Islamic finance when available and competitive perhaps due to the mere fact that it is considered Islamic. Most probably do not have a clear idea of the reasons for the permissibility of the product but assume that the scholars are correct.
Thus the layman enters the Islamic financial realm with the presumption of the scholar’s certainty that the product adheres to God’s law. This is enough for Islamic finance to endure even though the opinion is at best probabilistic. The laymen has faith in the scholars, assumes their competence and their hallowed position as interpreters of God’s law. Thus there is quite a significant responsibility imposed upon the Shari’a board.
In furnishing the Islamic finance industry, the Shari’a board cannot simply assume that it is deductively reasoning the law; rather it has to admit that its reasoning is inductive. It is looking at the evidence available and producing an opinion that is only a probable representation of law. In such a case, the board has to go beyond looking at the available sources – the Quran and the Sunnah; it has to also consider the way the products affect the person and affect society. If Islamic financial products encourage extravagance and over-consumption, the hoarding of wealth, the transfer of wealth from the poor to the rich, or more importantly the decrease of religiosity, then one must consider the value of Islamic finance. Ultimately, Islam is fundamentally about the worship of God and not the imposition of the Shari’a.
Conclusion
It is a fallacy to assume that Islamic law is certain although there are many general premises and several laws which can be regarded as certain. Scholars since the beginning recognised this about Islamic law, and the most humble of scholars would recognise their own subjectivities in the creation of some new law. In this ambiguity, followers would be more concerned about the integrity of the scholar as opposed to the reasons behind the law. In light of this, scholars had a responsibility to produce law that would balance the sometimes contradictory needs of the people and the interpretation of the sources. This dialectic imposed a most taxing responsibility as they were effectively assuming the law-making position of God. Islamic financial scholars today are no different, and their responsibility is grave. Even if their opinions are probable, their predominant concern should be that Muslims remain conscious of their own religious responsibilities. Perhaps, ignoring the criticisms of Islamic finance, the gradual increase of customers shows that they have achieved this binding obligation.
