The saying “My community will never agree on an error” was ascribed to the Prophet and, in effect, was to make an infallible church of the recognized doctors of the community as a whole. As Hurgronje says, “This is the Muslim counterpart of the Christian Catholic doctrine of ecclesiastical tradition: ‘quod semper, quod ubique, quod ab omnibus creditum est.’” The notion of consensus has nothing democratic about it; the masses are expressly excluded. It is the consensus of suitably qualified and learned authorities.
However, there were still disputes as to whose ijma was to be accepted: some only accepted the ijma of the companions of the Prophet, while others accepted only the ijma of the descendants of the Prophet, and so on.
The doctrine of the infallibility of the consensus of the scholars, far from allowing some liberty of reasoning as one might have expected, worked “in favor of a progressive narrowing and hardening of doctrine; and, a little later, the doctrine which denied the further possibility of ‘independent reasoning’ sanctioned officially a state of things which had come to prevail in fact.”
By the beginning of A.D. 900, Islamic law became rigidly and inflexibly fixed because, to quote Schacht:
The point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law, and that all future activity would have to be confined to the explanation, application, and, at most, interpretation of the doctrine as it had been laid down once and for all.
This closing of the gate of independent reasoning, in effect, meant the unquestioning acceptance of the doctrines of established schools and authorities. Islamic law until then had been adaptable and growing, but henceforth, it
became increasingly rigid and set in its final mould. This essential rigidity of Islamic law helped it to maintain its stability over the centuries which saw the decay of the political institutions of Islam. It was not altogether immutable, but the changes which did take place were concerned more with legal theory and the systematic superstructure than with positive law. Taken as a whole, Islamic law reflects and fits the social and economic conditions of the early Abbasid period, but has grown more and more out of touch with later developments of state and society.
Kiyas or analogical reasoning is considered by many learned doctors to be subordinate to, and hence less important than, the other three foundations of Islamic law. Its inclusion may well have been a compromise between unrestricted liberty of opinion and the rejection of all human reasoning in religious law.
1. All human acts and relationships are assessed from the point of view of the concepts obligatory, recommended, indifferent, reprehensibl , and forbidden. Islamic law is part of a system of religious duties, blended with nonlegal elements.
2. The irrational side of Islamic law comes from two of its official bases, the Koran and the sunna, which are expressions of God’s commands. It follows from the irrational side of Islamic law that its rules are valid by virtue of their mere existence and not because of their rationality. The irrational side of Islamic law also calls for the observance of the letter rather than of the spirit: this fact has historically facilitated the vast development and acceptance of legal devices such as legal fictions. For example, the Koran explicitly prohibits the taking of interest, and, to quote Schacht:
“This religious prohibition was strong enough to make popular opinion unwilling to transgress it openly and directly, while at the same time there was an imperative demand for the giving and taking of interest in commercial life. In order to satisfy this need, and at the same time to observe the letter of the religious prohibition, a number of devices were developed. One consisted of giving real property as a security for the debt and allowing the creditor to use it, so that its use represented the interest…. Another…device consisted of a double sale…. For instance, the (prospective) debtor sells to the (prospective) creditor a slave for cash, and immediately buys the slave back from him for a greater amount payable at a future date; this amounts to a loan with the slave as security, and the difference between the two prices represents the interest.”
How can we characterize the above practices? “Legal fictions” is too kind an expression. Moral evasiveness? Moral hypocrisy? Moral dishonesty?
3. Although Islamic law is a sacred law, it is by no means essentially irrational; it was created not by an irrational process of continuous revelation…but by a rational method of interpretation, in this way it acquired its intellectualist and scholastic exterior. But whereas Islamic law presents itself as a rational system on the basis of material considerations, its formal juridical character is little developed. Its aim is to provide concrete and material standards, and not to impose formal rules on the play of contending interests [which is the aim of secular laws]. This leads to the result that considerations of good faith, fairness, justice, truth, and so on play only a subordinate part in the system.
4. Unlike Roman law, Islamic law brings legal subject matter into a system by the analogical method, by parataxis and association. Closely linked to this method is the casuistical way of thinking, which is one of the striking aspects of traditional Islamic law. “Islamic law concentrates not so much on disengaging the legally relevant elements of each case and subsuming it under general rules—as on establishing graded series of cases.” For example, on the question of succession, we find discussions of the case of an individual who leaves as sole inheritors his thirty-two great-great-grandparents; the rights of succession of hermaphrodites (since the two sexes do not have the same rights); the inheritance of an individual who has been changed into an animal; and, in particular, the inheritance of that same individual when only half has been transformed, either horizontally or vertically.
Thus, a soul-destroying pedantry, a spirit of casuistry took over. As Goldziher says:
“The task of interpreting God’s word and of regulating life in conformity to God’s word became lost in absurd sophistry and dreary exegetical trifling: in thinking up contingencies that will never arise and debating riddling questions in which extreme sophistry and hair-splitting are joined with the boldest and most reckless flights of fancy. People debate far-fetched legal cases, casuistic constructs quite independent of the real world…. Popular superstition, too, furnishes the jurists with material for such exercises. Since…demons frequently assume human shape, the jurists assess the consequences of such transformations for religious law; serious arguments and counterarguments are urged, for example, whether such beings can be numbered among the participants necessary for the Friday service. Another problematic case that the divine law must clarify: how is one to deal with progeny from a marriage between a human being and a demon in human form…. What are the consequences in family law of such marriages? Indeed, the problem of (marriages with the Jinn) is treated in such circles with the same seriousness as any important point of the religious law.”
5. In what we would call penal law, Islamic law distinguishes between the rights of God and the rights of humans.