Introduction

Just over a century after the Prophet’s passing, Ibn al-Muqaffaʿ, the well-known Persian secretary and vizier to the second Abbasid caliph al-Manṣūr, penned his famous Risāla fī al-Ṣaḥāba (Epistle Concerning the Entourage), advising the caliph on how to confront the political troubles of his caliphate.[1] Among his handful of recommendations, Ibn al-Muqaffaʿ suggested that the caliph codify the growing corpus of what constituted Islamic law. Although the Caliph al-Manṣūr did not ultimately undertake Ibn al-Muqaffaʿ’s proposal, he did have another idea: why not simply use the respectable Imam Malik’s legal compendium, al-Muwaṭṭaʾ, as a standardized legal code?[2] When the caliph summoned Imam Malik to propose this idea, however, Imam Malik did not hesitate to reject the proposition. Using the Muwaṭṭaʾ as the only source of law, the scholar explained, would interfere with the legal diversity that had been uniquely produced throughout every region.[3]
The notion that Islamic law is inconsistent with too many opinions on any given issue has persisted until today.[4] In the 1949 United States Supreme Court case of Terminiello v. Chicago, Justice Felix Frankfurter scoffed at the proceedings by retorting, “We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency.”[5] In other words, decisions should be determined by a set of rules unhindered by the subjective interpretations of the judge. His bigoted attitude aside, the Supreme Court Justice’s remark reflects the often-held assumption that Islamic law was a little too vast for its own good, with the undesirable result of scholars and judges ruling based on their own personal biases.
So how, then, did scholars navigate the corpus of legal diversity and thought? In the following paper, I begin by offering an overview of how Islamic law was traditionally practiced at a communal level, as well as how scholars and laity alike took advantage of the diversity offered within the Shari'ah. I then discuss the legal methods scholars employed in order to ensure consistency and reliability within the law, prior to briefly concluding with reflections on the modern codification processes that began in the disintegrating Ottoman empire and lasted well beyond the colonial period. At a time when even some Muslims associate the Shari'ah with harshness and regression, it is extremely important for us to learn about these historical moments in order to see the value the Shari'ah held in maintaining flourishing communities, before exploring the significant changes inflicted upon Islamic law over recent centuries that have led to its ineffective and distorted practice today.

The Shari'ah in practice

One question, many answers

Case studies

Legal determinacy

What went wrong?

Conclusion

Notes