Table of Contents in the Asian Legal Encyclopedia
Muslim Law Subsidiary Sources in Asia
Subsidiary sources of Muslim law
Many potential sources of law were considered unsuitable for inclusion in Shafi’i’s scheme of the roots of Muslim jurisprudence and the reassertion of the religious basis as dominant (1) because they constitute various kinds of human law-making. Weiss (2) wrote that ‘[t]hese appear to
have originally represented independent human judgment of expediency or public utility’.Though ijma and qiyas are also techniques that necessarily involve human activity in ascertaining rules, they were not supposed to contain more than an absolute minimum of human endeavour, thus making them acceptable and usable within Shafi’i’s scheme.
Various elements, referred to as ‘additional sources’(3) and generally linked to ra’y, served as interactive components in law-making processes. These supposedly minor, informal sources have continued to play an important role in the construction and reproduction of ‘living Muslim laws’.
The role of these minor sources has often been underplayed, relegating them to the unofficial realm outside the four ‘official’ sources. Shafi’i rejected them because they all involved human reasoning and facilitated ra’y to an extent which he did not find acceptable. Hence, they figure more prominently in Maliki and Hanafi legal theory than in the later Shafi’i and Hanbali schools.
Coulson (4) emphasised that through his repudiation of these ‘undisciplined forms of reasoning’, insisting on strictly regulated analogical reasoning, Shafi’i was attempting to reduce differences of opinion to a minimum.
Listing some of these sources, Fryzee (5) argued that they mainly reflect ‘the difference of opinion among jurists in matters where discretion can be exercised and lead to refinements and distinctions which have become questions of controversy among the adherents of various schools’. This is precisely the kind of situation that Shafi’i wanted to avoid. Weiss (6) argued that ‘these so-called sources were eventually assimilated into the textual sources and were thereby deprived of their independent status’.
Material sources of law
Analysing this is difficult because different jurists and scholars have given different names to similar concepts. Fryzee (7) wrote of ‘material sources of law’ and argued that these cannot be neglected. He listed pre-Islamic customs, some elements ofRomanlaw, the local customs of different people, aswell as later English law influences through ‘Justice, Equity and Good Conscience’.
This incomplete collection appears to lack coherence, but the emphasis on custom is relevant. The main concepts to consider here first are istihsan, ‘personal preference’, and istislah, ‘public interest’, both methods of interpretation rather than substantive sources of law. Coulson (8) explained that flexibility of legal reasoning was the keynote of the Hanafi principle of istihsan, ‘juristic preference’, and to some extent also of the Maliki principle of istislah, ‘consideration
of the public interest’.
Shafi’i vigorously opposed them since they contradicted his grundnorm that Qur’an and sunna were absolutely dominant and that human reasoning should not be allowed to prevail on any ground (9). Coulson (10) highlighted the difference between legal theory and reality:
“Although legal literature, from classical times onwards, naturally tended to minimise the importance of these supplementary principles, they in fact represent the real sources of the bulk ofHanafi andMaliki law; their survival, under the umbrella of ijma, shows how successfully the early schools had absorbed the shock of ash-Sh ¯ af¯ı’i’s attack, andwhy they were able to preserve the distinctive characteristics which stemmed from their circumstances of origin.”
Similarly, Esposito (1988: 84) suggests that the subsidiary sources were invisibly integrated into the formal system:
“While all came to accept the four sources of law, Islamic jurisprudence recognized other influences, designating them subsidiary principles of law. Among thesewere custom(urf), public interest (istislah) and juristic preference or equity (istihsan). In this way, some remnant of the inductive human input that had characterized the actual methods of the law schools in their
attempt to realize the Sharia’s primary concern with human welfare, justice and equity were acknowledged.”
As Weiss (1978: 202) explains, istihsan could be seen as a form of analogy,which
also involves a process of selecting one interpretation in preference to another:
“[s]ome jurists claimed that istihsan, far frombeinganexpressionofpersonal
preference, was nothing more than the repudiation of one rule based on
analogy in favor of the adoption of another based on a more subtle – but
ultimately more plausible – analogy.”
If this selection involved purely methodological criteria rather than social concerns,
istihsan would even be acceptable within Shafi’i’s scheme. Similarly, the
concept of istislah as ‘public interest’ could be used to justify various interpretations.
The most acceptable for Shafi’i would have been the interest of the
Muslim community as a faith group, i.e. the protection of Islam itself. The most
prominent term for this appears to be maslaha, also translated as ‘public interest’,
a notion which can be brought under Shafi’i’s scheme, whereas istihsan
and istislah are normally excluded (See Coulson (1964: 144), Hallaq (1997) and in detail Esposito (1995, III: 63–5)).
Weiss (1978: 202) writes that maslaha
was eventually classified by Sunni theorists as a category of purposes of the
divine law, ‘to be discovered, not through a free exercise of reason or intuition,
but as a result of an inductive exegesis . . . of the texts’. Hence, it could become
acceptable. Doi (1984: 81–2) provides a useful discussion:
Public interest is also regarded in Shari’ah as a basis of law. The jurists
of different schools have used different Arabic terms to describe it. The
Hanafis call it istihsan meaning equitable preference to find a just solution.
Imam Malik calls it Al-Masalih al-Mursalah that is the public benefit or
public welfare . . . ImamAhmad binHanbal calls it istislah seeking the best
solution for the general interest. The Hanbali scholar Ibn Qudamah as well
as the Maliki jurist Ibn Rushd have occasionally used the term istihsan.
The only school which does not recognise ihtisan as a source is the Shafi’i
school. According to Imam Shafi’i, if it is allowed, it can open the door to
the unrestricted use of fallible human opinions since the public interest will
vary from place to place and time to time.
Doi (1984: 82) further highlights that concepts of public welfare and general
interest can be seen as an equitable consideration that was not even denied by
the Shafi’i school, which used istidlal, ‘argumentation’, to achieve similar results
by avoiding strict application of qiyas that might result in injustice or a socially
unacceptable theoretical conclusion.(Doi (1984: 82–3) provides useful examples. The modern use of ‘public interest’, accepted
now as Islamic in Pakistan (Menski et al. 2000), clearly has deeper Islamic dimensions.
Presumption of Continuity
The Shafi’i school also recognises the
concept of istishab, ‘presumption of continuity’. This is different from the other
categories discussed above since it is a technique or rule of evidence (Doi, 1984:
83). It concerns a legal presumption to the effect that a state of affairs known
to have existed in the past continues to exist until the contrary is shown. This
would become relevant in situations where a missing person may either be
presumed dead from the date of disappearance, after some specified time, or
that person may be presumed alive until the contrary is known. This might
affect succession questions and the position of married spouses.
Continuous debates arose over the role of custom and legislation, neither of
which are recognised as classical formal sources of Islamic law. Official statements
that ‘custom’ is not a source of Islamic law, so often found, can be read
to mean, therefore, that custom should not influence the human mind in interpreting
God’s law. But because Muslims have always had to ascertain God’s law
(Weiss, 1978: 200), since the time of the Prophet customary influences have
inevitably played a large role in shaping authoritative Muslim interpretations
of Qur’an and sunna. Statements about the irrelevance of customfor Islamic law
become even more unreal in view of the enormous diversity among Muslims.
Schacht (1984: 62) highlighted that ‘custom and customary law have co-existed
with the ideal theory of Islamic law, while remaining outside its system, in the
whole of the Islamic world. As a point of historical fact, custom contributed a
great deal to the formation of Islamic law.’ The classical theory, concerned with
the systematic foundation of the law, led to a consensus of scholars that denied
recognition to custom. In principle, this is the same process thatmakes the negation
of moral values and social input by legal positivism so unreal. Theoretical
Islamic scholarship deliberately denied itself plurality-consciousness to maintain
the assertion that God’s law was supreme at all times. But does assertion
of divine supremacy require a denial of the role of custom and legislation? Doi
(1984: 84) explains that traditional Muslim jurists were plurality-conscious,
but sought at the same time to maintain the superiority of God’s law:
Urf, the known practices and Adat orCustoms are recognised as a subsidiary
source by all schools of Jurisprudence. The Maliki school attaches more
importance to custom than other schools. But customary rules are valid as
long as there is no provision on the matter in the Qur’an and the Sunnah.
If any of the customs contradict any other rule of Shari’ah, they will be
considered outside the pale of Islamic Law.
Being placed outside the strict ambit of Islamic law does not erase custom
fromMuslim social reality and the legal framework of certain states. Should we
then speak of unofficial customs, or un-Islamic customs? Coulson (1969: 54–5)
emphasised that this conceptual tension has accompanied Islam throughout its
history since the time of revelation:
Inevitably perhaps, in Islam as in other philosophies of life, there has always
existed some degree of conflict between theory and reality and of tension
between the religious idealism of the doctrine and the demands of political,
social, and economic expediency. On grounds of practical necessity Muslim
states and societies have recognised and applied laws whose terms are
contrary to the religious doctrine expounded in the medieval legal manuals.
Within the vast geographical spread of Islam and the many different
peoples who make up its four hundred million adherents, customary law
has always controlled many aspects of life.
Observing how learned past scholars scrutinised different school approaches,
Coulson (1969: 34) claimed that ‘Islamic law takes on the appearance of a builtin
comparative legal system’. Such internal comparisons not only provided
substance for polemic battles but also engendered a spirit of valuing difference
amongMuslims, akin to what Legrand (1996) demands of all comparative legal
The same goes for state-made laws, prominently legislation, since case law
has not been a feature of traditional Muslim law, given that every case was
judged in its own right, and the idea of precedent, while not absent, was perceived
to endanger justice.(Hallaq (1997) seems to suggest a role for decisions as a help in solving other problems). The official view has always been that no ruler
or government can change the shari’a (There is a rich literature on concepts of the Muslim state. See Rosental (1958; 1965), Asad
(1961), Faruki (1971), Enayat (1982).With particular reference to the modern world, see
Khadduri (1970),Hassan (1984),Halliday and Alavi (1988) and Ferdinand andMozaffari
(1988). Tibi (1997) focuses on Arab nationalism.), but positivist law-making was never
totally absent.Most likely, it was treated as an aspect of efficient administration,
implying the production of secondary rules in Hartian terms, but it is asserted
by Hallaq (1997) that early Muslim law knew and used legislation. A Muslim
ruler could certainly introduce administrative regulations without direct reference
to religious law, which does not mean that this becomes ‘secular’ law, since
it still applies the values and spirit of God’s law. We find confirmation here of
explicit conceptual (and plurality-conscious) recognition thatMuslim positive
law contains religious values and consideration of social normative orders, so
Muslim legislated law would be internally plural and not just posited law in a
strictly secular Austinian sense. Conceived as internally plural, respecting the
superiority of God’s law, this precludes the emergence of Islamic absolutism.
Starting from the Prophet, and more so in the time of the early jurists, Islamic
governments appear to have been conscious of the need to remain at all times
under the religious umbrella while pursuing positivist law-making. As fierce
criticisms of the earlyUmayyads (section 5.5) showed, pursuing legal positivism
without explicit reference to religious norms would be branded as misguided.
However, from earliest times it was possible to legitimise this through juristic
reasoning, which then deflected criticism to the jurists and their methodologies.
This probably allowed Islamic rulers to get away with much positivist
law-making in the name of Islam.
Mayer (1990: 179) argued that Islamic law, rather than becoming a ‘jurist’s
law’, might just as well have turned into a codified system. Her assumptions do
not stand up to scrutiny from a globally focused comparative perspective and
require some comment here. They explain why manyWestern legal writers may
not have been able to grasp the nature of Islamic legal arrangements. Mayer
(1990: 179) starts from wrong assumptions about legal codification.
The Emperor Aˇsoka’s ‘legislation’, which turned out to be
an appeal to self-controlled order rather than statist law-making,
the colonial misconstruction of ancientHindu texts as legal codes and in view of lingering concerns that the interpretation of oldMiddle Eastern codes has
been heavily influenced by Maine’s (1861) evolutionist thinking and may be too positivist.
The tradition of codification was well established in the ancient world as
well as in ancient Middle Eastern culture, and the choice could have been
made at the outset of Islamic legal history to devise Islamic codes thatwould
have been promulgated by the ruler. That is, it would have been perfectly
possible for the Shari’ah to have been introduced in a codified formulation.
Mayer certainly has a point that codification would have been possible. Section
5.3 exploredwhy it could not have been done by the Prophetwithout drastically
changing the nature of Islamic law. The roots of Islamic law had to remain
within the conceptual triangle of natural law and ethics to achieve the purpose
of the new divine message and could not be transplanted to the triangle of the
state. Simply replacing an unsatisfactory positivist order by a new positivist
order was not a viable option. Even later, despite many positivist ambitions of
early Islamic leaders, this basic liaison of a new value system and legal rules
could not be modified without challenging the entire edifice of Islam. Mayer’s
modernist interpretation seems to ignore the central role of religion as an
aspect of natural law, which then infuses any positive law. From a pluralityconscious
perspective, the task of humanity appears to be to harmonise human
ways of life with the perceived requirements of those unseen higher forces
that are perceived to control the universe in some form and gave rise to the
various beliefs that we know, including the religion of agnosticism. Ignoring,
in this case, Allah’s natural law and its globalised claims to superiority,Mayer’s
approach completely excludes the overriding religious claims of Muslim law
and is too positivist in tone.
It is not surprising that debates over the relationship between state-made law
and religious law have not led to any conclusion. This neatly mirrors the neverending
dominant discourse in Western legal theory between positivists and
natural lawyers, with the crucial difference that Islamic discourses tend not to
question the religious nature of natural lawandwould provide a different interpretation
of ‘secular’ law-making and theorising. After the ninth/tenth century
AD, the focus in the Islamic world remained on expansion and administration
of ever-growing empires, while the jurists were carrying on intensive debates
in their learned circles as before but linked, from time to time, into those
political developments. At first sight, little attention was paid to socio-legal
issues. This, too, reflects the European experience, where the historical school
of jurisprudence was yet to emerge. People’s law was still a social matter for
people, not so much for ‘legal’ scholars, who were more concerned about their
own universe than local concerns.
1 Coulson, 1964: 91)
2 Weiss (1978: 202)
3 Weiss, 1978: 202)
4 Coulson (1964: 60)
5 Fyzee (1999: 22)
6 Weiss (1978: 202)
7 Fyzee (1999: 22)
8 Coulson (1964: 91)
9 Hallaq, 1997)
10 Coulson 1964: 92
Sources of Japanese Law
Chinese Legal System
Singapore Legal System (7)
Taiwanese Legal System (6.5)
Vietnamese Legal System (6.5)
South Korean Legal System (6.4)