284 regional comparisons in a global context

generations of jurists, probably encouraged by their potential roles in relation

to state law, might be tempted to exploit their specialist knowledge.21
At its base, the religious Muslim law is clearly a matter of natural law
philosophy; it is not a form of legal positivism originating from the state. Con-
ceptual analysis of early Islamic law is confronted with the virtual absence of
the state, which is of course not unique to Islamic law. At first sight, this creates
analytical problems in applying the conceptual triangle (chapter 3, section 3.8)
because religion is treated as entirely dominant and the triangular interlinkage
seems to be denied. However, since the focus on religious authority serves to
promote the experience of a good life in Islamic terms, and Muslims are nor-
mally also members of communities, which exercise their own authority as a
human and thus secondary source of guidance,22 the result is not just another
clash of positivism and natural law but a triangular dynamism. Muslim indi-
viduals and communities are expected to orient themselves first of all towards
God, not a state. But the state is not entirely absent: the Prophet was the first
ruler, judge and leader of the emerging faith community, and others followed
him. Legal positivism seemed an attractive concept to ancient Arabs,23 but as
a human construct it remains inferior to the divine revelation of Islam, while
social embeddedness is taken for granted.
Examining the time of the Prophet in seventh-century Arabia allows a better
understanding of why and how Muslims may perceive state authority and cus-
tomary laws as subordinate. In the pluralistic socio-cultural environment of the
Prophet’s time, with Islam as a new minority religion, Islam had to assert itself in
a hostile environment by creating a new identity for its adherents. This confirms
the critical importance of Chiba’s (1989: 180) ‘identity postulate of a legal cul-
ture’, giving it ‘ethnic’ characteristics. The new belief system of Islam offered an
attractive, innovative and holistic system for believers, a powerful message that
subjected everything to a new ethical assessment. Hence, the Qur’an is much
more than a Napoleonic code of law, it is received as a comprehensive guidance
for Muslim life, a code of ethics that leaves nothing uncovered. However, as it
needed to be applied in practice, the Prophet and later his Companions and
Muslim scholar jurists were needed as human agents to interpret this divine rev-
elation and make it applicable to Muslim daily life. Herein lies the core dilemma
of Islamic jurisprudence. As a matter of religious doctrine, it asserts superior
divine authority, but when it comes to real life, human interpretation and appli-
cation are central to establishing the rule systems we now know as Islamic law.
21
The almost illiterate village maulvi in South Asian Muslim communities who advises his
‘flock’ in accordance with izzat (his own assumptions about honour), but declares this
Islamic, is a common feature of contemporary Islam (Mahmood, 1986: 55–7).
22
On the role of custom, especially in Hanafi law, see Mahmood (1965) and Libson (1997).
23
Mayer (1990: 179–80) reports that a high government official, Ibn al-Muqaffa’, who died
c. 759 AD, proposed unsuccessfully that the Caliph should codify the law to remove the
confusions arising from excessive scholarly diversity. See also Coulson (1964: 52).
 islamic law: god’s law or men’s law? 285

The Prophet as the recipient of the divine messages and the first leader of the
Muslim community had a central role in this process of harmonising divine rev-
elation and social reality. This immediately combines all three elements of the
triangular model of law (chapter 3, section 3.8). He acted as ruler, human recip-
ient and guardian of the divine message, and as head of the emerging Muslim
community. Even during the time of the revelation, a long process (610–32 AD),
this rendered Islamic law of necessity immediately plurality-conscious, despite
the monotheistic focus on God, His message and its transmission through the
Prophet.
Since this divine Order needed to be applied by Muslims in daily reality,
guidance about God’s will was required. That guidance came originally from
the Prophet as the recipient of the divine messages, who had to be extremely
careful not to turn into an Austinian law-maker. It is evident that he succeeded
in maintaining the distinction between being God’s messenger and being an
emerging ruler by subjecting himself to divine authority. Acting primarily as a
mouthpiece of God and only secondarily as a leader of the emerging community,
the Prophet’s positing of new rules was designed to explain the greatness and
goodness of God’s Order, not to assert his own personal rule. Here lies the
origin of the claim that all political (and hence positivist legal) as well as social
authority in Islamic law must be seen as subject to the divine will. More strictly
circumscribed than in Hindu law, therefore, the Islamic ruler is from the very
start a servant of this divine Order and can claim only a limited role in making
law.
Islam also teaches that the Prophet was a very special man and nobody
after him can claim to fully understand God’s will.24 Consequently no Islamic
jurist could ever claim to have found ‘the Truth’ through his own effort of
interpretation (ijtihad). Thus, striving for Truth at the highest level of Islamic
understanding becomes an ultimately unachievable ideal. Muslim jurists as
learned individuals can view themselves only as faithful interpreters of the
divine will, never as autonomous law-makers, since they themselves remain
a fallible tool, a socially conditioned element of human interpretation of the
divine will. The principle of limitation of human knowledge and the result-
ing axiom of ‘tolerated diversity’ or ‘margin of error’ (ikhtilaf) suggest that
pluralism is structurally inherent in post-revelation Islamic law.
Hence it is inadequate and confusing to speak simply of Qur’anic ‘legislation’
(but see Hallaq, 1997). While the Qur’an must be seen as lex divina in Thomist
terminology (chapter 3, section 5.4), Islamic law comprises other categories of

24
His remarkable privilege according to Muslim tradition was that he could still ask direct
questions from God. No human after him could do so; the closest we get in the Muslim
system to divine inspiration is the Shi’a concept of the imam, who is deemed to be a
direct descendant of the Prophet’s family and thereby possesses innate legitimising legal
authority.
286 regional comparisons in a global context

Thomist natural law as well.25 The Prophet was by all accounts a simple man,
but he had common sense and he lived in an environment where plurality was
a daily experience (Glenn, 2004: 170–1). The divine revelation that he applied
left no theoretical loopholes, and in this sense it is deeply plurality-conscious.
However, claiming that this divine revelation is simply ‘the law’ masks the fact
that divine law-making by itself could never become a legal system in its own
right. A God who makes rules needs people to apply them. Allah needed the
Prophet as a tool, as other Gods before him required a messenger (Glenn, 2004:
171). It seems to be accepted therefore by all major Muslim scholars that the
Qur’an contains the essence of God’s law, but is not the law itself. Weiss (1978:
200) explains:
Strictly speaking, it is not the Law as such which is interpreted, but rather the
sources of law. The Law as a topically-organized finished product consisting
of precisely-worded rules is the result of juristic interpretation; it stands at
the end, not at the beginning, of the interpretive process. Yet it would not
be acceptable to speak of those who interpret the sources as in any sense
creating law. It is much more appropriate to refer to the interpreter as one
who discovers the law. The theory of ijtihad presupposes that the process
of producing rules is a process of elucidating that which is present but yet
is not self-evident. In principle, the Muslim jurist never invents rules; he
formulates, or attempts to formulate, rules which God had already decreed
and which are concealed in the sources. These rules, which constitute the
ideal Law of God, exist objectively above and beyond all juristic endeavour.

The core predicament of Islamic law-making therefore lies in the ‘margin of

error’ (ikhtilaf), to which all human interpretation of the divinely revealed word
remains forever subject. Nobody, according to strict religious interpretations
of Islam, can ever totally grasp God’s message, no human could ever claim to
possess perfect knowledge of the divine truth. Weiss (1978: 204) explains:
The notion of opinion suggests the possibility of error, and error is contem-
plated by Sunni theorists as an inevitable fact of legal life. Opinion is frankly
admitted to be fallible: liable (although not necessarily prone) to error. The
factuality of error is implicit in the ikhtilaf, the disagreements among the
great jurists. Unwilling to succumb to an ethical-legal relativism, Islamic
jurisprudence insists that the truth of God is one and that there is only one
correct rule with reference to every human act. Accordingly, when jurists
disagree on a particular rule, they cannot all be right. Because the positions
taken by jurists regarding a particular legal question are all opinions, one
cannot know which opinion happens to be correct. If one could know an
opinion was correct, erroneous opinions would necessarily be eliminated.

25
The comprehensive divine Order of Islamic natural law is found in huqm, the Qur’an
equates to lex divina, while the later concept of siyasa shar’iyya (government in accordance
with God’s law) represents secular strands within Islamic natural law.