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The Evolution of Islamic Jurisprudence: The Relationship Between Case Books and Ijtihads

You are reading a technical article that will shed light on two important aspects of Islamic jurisprudence. It might not be suitable for a newspaper column, but…

The second half of the 1990s. Together with my dear friend, brother, and the teacher from whom I learned so much, Enes Ergene, we were writing articles on legal issues in the same column of Zaman Newspaper, alternating turns. We shared the same room on the fourth floor of that old building in Istanbul. We had serious discussions about the articles we wrote.

Let me share a conversation that I still remember vividly, even though more than 30 years have passed since then, and which I’m making the topic of my article today: the renewal of Islamic jurisprudence. Today, I reiterated what is still the common belief held by many. Muslims were vibrant in producing thought until the first five centuries, up to Imam Ghazali, but then they stagnated. I then presented the evidence to support this claim, although I won’t go into details here, nor will I list the evidence I used in that argument. These are things that experts already know.

Up until that point, Enes Ergene had never said something I hadn’t thought about, read, or heard before. In essence, he said, “We should not underestimate the footnotes and commentaries. Even if they were not like the Mujtahid Imams, the partial ijtihads, preferences, and distinctions made by the scholars of the time have provided solutions to problems, and Islamic jurisprudence has survived thanks to them.”

As I said, I had never thought about this before, but he was right. If intellectual production stopped in the 5th century, how did Muslims continue to live for 8-9 centuries with the legal framework established in the 5th century, especially in regions with different customs and traditions? Without going too far, how did the Ottoman Empire, which lasted for six centuries, manage to stand with those legal books? Yes, the Ottomans introduced a distinction between Sharia law and customary law. Sharia rulings remained unchanged with the commentaries and annotations Enes Ergene mentioned, as well as preferences and distinctions, while changes were made to the form, creating new rulings for conjunctural and contemporary issues, issuing decrees, declaring constitutionalism, establishing legislatures, and enacting laws, etc. All of this points to one truth: intellectual production did not stop, as I had previously thought.

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So why am I talking about this? I recently read an article that supports this idea. The title of this article, translated by Muharrem Midilli, is: “From Fatwas to Furū: Development and Change in Islamic Furū al-Fiqh.” I haven’t made my final decision yet, but the ideas presented in the article point to the same conclusion from a different perspective. They not only point to it but make a more audacious claim. The article is by Wael B. Hallaq, a Christian scholar dedicated to Islamic law, now a professor at the world-renowned Columbia University.

Without further ado, let me explain these three concepts briefly before discussing Hallaq’s claim:

  1. Zāhiru’r rivāye: These are the books where the reliable opinions of the founding Imams and prominent jurists within a school of thought are compiled. For example, in the Hanafi school, these would include Imam Abu Hanifa, Abu Yusuf, and Imam Muhammad.
  2. Nādiru’r rivāye: These are also attributed to the same Imams but contain narrations considered less reliable compared to the first category.
  3. Vākıāt: These are the ijtihads, fatwas, and rulings made by later jurists that were not addressed by the aforementioned Imams.

Now, let me get to Hallaq’s claim, which I haven’t made a final decision about. Hallaq argues that, contrary to our classical understanding, the development of furū al-fiqh (branches of Islamic jurisprudence) primarily relied on vākıāt books, which are typically ranked third in the hierarchy, as opposed to the first two categories (zāhiru’r rivāye and nādiru’r rivāye). In other words, Hallaq claims that vākıāt contain more ijtihads, fatwas, and rulings than the other two categories and that the dominant factor in this development is the changing circumstances of the time and the diversity of people’s customs, traditions, and lifestyles. This finding is quite new to me and is a topic worth exploring through in-depth readings from a professional standpoint.

In the later stages of his article, Hallaq substantiates his claim through the concepts of tashīh, tarjīh, taşhīh, tahrīc, and ijtihad. He concludes his article by stating: “In sum, our research demonstrates that the genre of fatwa literature is primarily responsible for the development and transformation of legal doctrines within the schools of law and that our prevailing understanding of Islamic law as the jurists’ law should now more properly be defined as the jurists’ and their muftis’ law. Any study of the historical evolution and subsequent development of the furū-ı fıqh doctrine must take the mufti and his fatwa into account. Vallahu a‘lem.”

Why did I write this article? I wanted to share it. Among the readers of this column, I know there are people with a background in Islamic studies. Perhaps it could be beneficial to them, serving as a thought-provoking and horizon-expanding piece.

My next article won’t delve into such technical details. It’s about introducing a book. In fact, I’ve already written it.

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AHMET KURUCAN
AHMET KURUCAN
Dr. Ahmet Kurucan is a an author and scholar focusing on Islamic Studies and Law.
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