Islamic legal theory is a dynamic and vast subject in the realm of Islamic studies. It has originated due to certain divinely ordained contents as well as social evolutionary forces. The divinely ordained content owes its origin to the revelation (Wahy) and its amplification and auxiliary elucidation by the prophetic tradition. Hence the initial legislation in Islam took place by Quran itself as well as by the prophetic explanation whatsoever required. These two sources will always remain the primary concern of the Muslim jurists while resolving any socio-legal issue. Soon after the prophet’s passing away (10 A.H/632 A.D), the society felt the need of legislation in various socio-economic and political issues not observed during the early phase of Islamic history. Certain things which the society faced had to be debated and resolved for the social benefits (Maqasid). It is pertinent to mention here that the social occurrences (Mahazr) or the exigencies (Iztirar) are the vibrant forces for making legal theory relevant and germane. Apart from the revealed precept (Munazal), certain other social notions played a vital role for codification of the Islamic legal theory and influenced the Muslim jurists (Fuquha) to prepare, connote and elaborate the text as per the prevailing circumstances.
The expansion of Islam beyond Arabia during the Umayyad Rule (661-750 A.D) and emergence of the Abbasids to the caliphal throne (750-1258 A.D) is in fact the first chance to predict over the dynamism of the Islamic legal theory. Obviously, in addition to the revealed principles, it is the interaction, multiplicity of thought and diverse cultural affiliations that widened the scope of Islamic legal theory and made it a living entity for social discourse. The interpretation of a commandment (Hukm al-Shara‘i) to suit the situation and utilizing this interpretation as a ‘breakthrough’ for further legislation is indeed a magnificent work carried out by the Muslim jurists. The Schools of the Islamic jurisprudence (Madhahib al-Fiqh) worked with the same spirit had never thought of their legal opinions to be made ultimate (Qata‘i). Rather, they would examine all the possible interpretations of a commandment and put to practice the most suitable and reliable one. This effort as a socio-legal process had two important features. One, it would try to make the text relevant to the circumstances and second, it would involve the society for the study of a variety of discourses shaping current dimensions of the legal theory.
A socio-historical study of the Islamic legal theory will enable us to understand the vision of early Muslim intellectuals who considered ‘context’ as part of the resolution. Again, it is workability of this visualization that the socio- legal decisions of the earlier jurists served as the reference point regarding the future legislation. Unfortunately, the slumber of the intellectuals, non-relevance of the curricula of the religious seminaries and unawareness of various social occurrences and their impact upon the human society seems to have made this subject irrelevant. Exception to the effort are the institutions of Egypt, Malaysia, Turkey and Iran where the subject is much more debated for the socio-academic dimensions.
The writer is Professor in the Department of Islamic Studies at Islamic University of Science and Technology. He can be mailed at: [email protected]