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In the post-colonial world, scholars – Muslim and non-Muslim – have generally found it better to mix up the views of the jurists belonging to various schools of Islamic law under – the presumption that the various schools of Islamic law followed a ‘common legal theory’ and differed in minor details only. This paper highlights the problems in the methodology of modern scholars, and for this purpose focuses on the Council of Islamic Ideology, the constitutional body for making recommendations to the Parliament for the purpose of Islamization of laws. It shows that while criticizing the works of the Muslim jurists on Islamic criminal law, the Council has not been able to develop a comprehensive and internally coherent legal theory, and has instead relied on a mix of principles of various schools joined haphazardly without resolving internal inconsistencies. It concludes that the modern critics of Islamic criminal law, by breaking their links with valid legal sources, are left with reason as their sole guide in addressing legal problems – an extremely pure form of naturalism that deems reason as a complete source of law and accords too much room to discretion and ‘independent’ reasoning.
Introduction
The first significant constitutional document passed by Pakistan’s first Constituent Assembly in March 1949 was titled the Objectives Resolution. This Resolution determined that Pakistan was going to be an Islamic State. The Constitution of 1956 retained the Objectives Resolution as its preamble and promised to bring the existing laws into conformity with the ‘injunctions of Islam as laid down in the Holy Qur’an and [the] Sunnah.’ For this purpose, the Constitution envisaged a Commission, but the Commission could not start its functioning before the Constitution was abrogated in 1958. The Constitution of 1962 reiterated the promise of Islamizing the laws and established the ‘Advisory Council of Islamic Ideology’ for this purpose. The Constitution of 1973 retained this scheme of the things but renamed the Council as the Council of Islamic Ideology. It also fixed the time period of seven years for the Council to prepare the final report about the Islamicity of the existing Pakistani laws. The Council was also to prepare interim reports annually till the preparation of the final report. However, the Council started playing an active role only after the 1977 coup when the Martial Law regime re-constituted the Council so that it would help the regime in pursuing its agenda of Islamization of laws and economy. Since then, the Council has been preparing annual reports, but these reports have been kept ‘confidential’ and are only submitted to the concerned officials and departments.
Perhaps for the first time the Council deviated from this norm of confidentiality in 2006, when it first uploaded on its website its Interim Report and then the Final Report on reforms in the hudud laws. In this Report, the Council gave some details about its methodology for deriving and extending the rules of Islamic law. Some significant aspects of this methodology are examined in this paper.
The Council of Islamic Ideology and Issues of Legal Theory
The Council has been formed for the purpose of examining the existing laws for repugnancy with the ‘injunctions of Islam as laid down in the Holy Quran and [the] Sunnah.’ The question is: how does the Council perform this function? Moreover, did the Council develop a legal theory of its own? In other words, has the Council identified the ‘sources’ of law which it consults for deriving a rule of Islamic law? Has it determined the order of priority of these sources and their mutual relationship? Has it developed some ‘principles of interpretation’? These are some of the significant questions for any legal theory as far as Islamic law is concerned. This section examines these questions.
Defining the ‘Injunctions of Islam’
First of all, it remains to be settled what exactly is meant by the term ‘injunctions of Islam’. The Constitution does not define this phrase and no superior court has ever considered defining this term. The Council, while commenting in its Annual Report of 1986 on the ‘Shari‘at Bill’ passed by the Senate, defined shari‘at as: ‘Shari‘at means the injunctions of Islam as laid down in the Holy Quran and Sunnah’. Still, the Report does not offer any definition of the ‘injunctions of Islam’. It, however, adds an explanation to the definition of ‘shari‘at’:
The following sources may be referred to for the exposition of the injunctions of Islam:
a) The Sunnah of the Rightly Guided Caliphs;
b) The Acts of the Companions of the Prophet;
c) The consensus of Muslim; and
d) The expositions and opinions of the jurists.
Another question to be considered is whether the Council is bound by its own previous decisions? In other words, does the Council consider its previous reports as legally binding precedents? The answer to this question is surely in the negative. This is supported by the fact that Council has many a times changed its recommendations on the same issue. For instance, in 2006 it prepared a report for amending or repealing the Hodood Ordinances, even though the draft of these Ordinances was prepared by the Council itself in 1978. Such being the case, it becomes all the more essential that a definition for the term ‘Injunctions of Islam’ be put forward. It is suggested here that the standard definition of the hukm shar‘i given by the jurists may be used for this purpose.
Ambiguity on the meaning of the ‘injunctions of Islam’ has resulted in the Council’s (as well as the Courts’) arguing directly from the Qur’an and the Sunnah and trying to reinvent the wheel. For instance, in Hazoor Bakhsh v The State, the Federal Shariat Court embarked on demolishing the whole edifice of criminal law as developed by the jurists and tried to lay its foundations on an altogether different basis. This attempt has also resulted in creating laws that face serious problems of analytical inconsistency. Thus, in Rashida Patel v The Federation of Pakistan, even though the Federal Shariat Court declared that zina bil jabr (rape) was a form of hirabah, not zina, yet it did not settle the question of punishment for this offence. It is for this reason that Ghazali asserts that the first source of law which the mujtahid should consult is ijma‘ because if the issue is already settled by consensus of the jurists there is no room for re-opening it.
Salient Features of the Council’s ‘Legal Theory’
A student of Islamic legal theory will be eager to find answers to some significaqnt questions, such as: what stance has the Council taken on issues such as the interrelation of the Qur’an and the Sunnah, the authenticity and use of khabar wahid, the meaning and scope of naskh (abrogation), restricting a general word (takhsis al-‘amm), or construing the absolute word as conditional one (taqyid al-mutlaq) and so forth? If the Council wants to avoid the problem of analytical inconsistency, which mars many of its recommendations in almost every one of its reports, the most crucial task for it, after it has decided on a definition of the injunctions of Islam, is to formulate principles both for the extraction of these injunctions from the Qur’an and the Sunnah, and for deciding how the conflicts between these injunctions and positive laws are to be resolved.
The Council, in its interim report, has elaborated some features of its legal theory in the following words:
Shari‘ah foundations means the Qur’an and Sunnah, which are the sources for finding the laws. The methods of qiyas and ijtihad are employed to find a law in the light of these sources when a law is not given in the Qur’an and Sunnah. The legal position of a law deduced on the basis of qiyas and ijtihad varies, depending on whether they agree or differ on the validity of a deduced law. The weakness and the strength of this validity are categorized accordingly into fard, wajib and Sunnah.
This exposition has several serious problems. First of all, the use of ijtihad is not limited to cases where the rule is not found in the texts of the Qur’an and the Sunnah; ijtihad is also used for interpreting and elaborating the rules found in the texts. Secondly, how can one have recourse to ijtihad or qiyas in case the rule is not found in the Qur’an and the Sunnah, when the Council has already declared that only these two constitute the sources for Islamic laws? The meaning of ijtihad as the use of ‘personal opinion’ by the mujtahid would not be acceptable, for it would amount to giving him the status of the lawgiver. Thirdly, the strength or weakness of a rule derived on the basis of qiyas does not depend on the agreement or disagreement of the mujtahidin but on the strength of the two premises on which a qiyas is based: the first premise pertains to the ratio or active cause (‘illah) of the rule and the second one is concerned whether the same ratio is found in the new case. Hence, if the two premises are definitive (qat‘i), the qiyas will also be definitive; and if any one of these premises is probable (zanni), the qiyas will also be probable. Finally, the categorization of the obligation-creating rules (hukm taklifi) into fard, wajib or Sunnah, is not brought about by the weakness or strength of the qiyas or ijtihad which is used to derive the rule, but on the definitive or probable nature of the authority (dalil) and the binding or non-binding nature of the command. Moreover, this categorization is not limited to laws derived by qiyas and ijtihad only, but applies to laws clearly given in the texts as well.
Conflation or Choosing Principles from Various Schools
Following the general trend of the modern Muslim scholars, the Council has generally accepted the proposition of ‘common legal theory’, it has generally preferred to pick and choose from the various schools those principles which suited the call for ‘reason’ and ‘discretion’. Here, four important principles of the legal theory of the Council – if it can be called a legal theory – are analyzed, namely, al-ibahah al-asliyyah (the presumption of permissibility), qiyas (analogy), istihsan (generally equated with ‘equity’) and maslahah (generally translated as ‘public interest). The purpose is to show that these principles are of little help in creating room for discretion. Hence, these critics are compelled to abandon even these principles and instead rely on naturalist argument of the use of discretion based on reason.
The Presumption of Permissibility
The general practice of the courts as well as of the Council, as candidly shown in its Report, has been to treat everything permissible if no explicit text of the Qur’an or the Sunnah is found prohibiting it. The fact remains that something may not be against the explicit text, yet it may be conflicting with the general principles and the purposes (maqasid) of Islamic law. The presumption of permissibility – expressed by the jurists as ‘the original rule for all things is permissibility’ – does not have enough strength for becoming the basis of new legislation, or for changing the structure of the established norms of Islamic law.
First, this presumption is not widely accepted by the jurists. The celebrated Shafi‘i jurist Jalal al-Din al-Suyuti asserts that the Hanafis apply the presumption of prohibition, instead of permissibility. The reason for this is that the Hanafis resort to the general principles of law when they come across something about which the texts are apparently silent. Still when they do mention this presumption as a hypothetical possibility, they consider it as having been derived from the following verse: ‘It is He Who hath created for you all things that are on earth’.
Second, the large number of exceptions to this presumption renders it impossible to consider it as a general principle. Thus, the jurists unanimously agree that the presumption about rituals is of prohibition. The same is true of forming sexual relationship with a woman, taking of a human life and eating the meat of a slaughtered animal. Similarly, many other prohibitions have greatly limited the scope of this presumption of permissibility.
Third, one may argue further that since Adam, peace be upon him, in addition to being the Father of all mankind, was a prophet, human beings have had recourse to revelation ever since the very beginning. It follows that some things must necessarily have been prohibited from the very start. Hence, the presumption that in the absence of any text everything is permissible is not tenable.
If one still insists on accepting this presumption as a general principle, the question remains as to whether it is a good tool for Islamizing Pakistani law?
Qiyas (Analogy)
Critiques on the hudud laws have been accompanied by suggestions coming forward from some ‘experts’ of the need for qiyas and personal opinion. Some commentators, for example, have declared that the nisab for the hadd of sariqah (theft) is very meager and that the amount should be raised. Then there are those who have tried to fit in rules from other areas of law into the hudud. Many such examples are found even in the CII Final Report. Hence, it may not be out of place to discuss the position of the Muslim jurists on the use of analogy in cases of hudud.
As a starting point, the Hanafi jurists do not apply qiyas to each and every legal issue. For instance, the number of sijdah (kneeling prostration) in every unit (rak‘ah) of prayer being two, this fact cannot be subjected to qiyas so that the number of ruku‘ (standing prostration) should be made two as well. Like these rituals, the hudud concern what are called the rights of God (huquq Allah) which are not to be subjected to personal opinion or qiyas.
Thus, the Companions of the Prophet (peace be on him) disagreed among themselves regarding the punishment for sodomy. Abu Hanifah inferred from this difference of opinion that the Companions did not hold sodomy as zina for if they regarded it as zina, they would not have differed concerning its punishment. Sarakhsi explains the principle of Abu Hanifah in the following manner:
The Companions agreed that this act [sodomy] is not zina as they were cognizant of the text for zina and yet they disagreed as to what punishment this act made the perpetrator liable to. It is established that they would not practice ijtihad in the presence of a text. This proves their agreement on sodomy not being zina and inapplicability of the hadd of zina to it. Hence, this act is a crime which does not have a prescribed punishment in the shari‘ah. However, it is certain that it does call for punishment. The question as to what should be the punishment falls within the ambit of siyasah which is to be left to the discretion of the ruler. If he holds an opinion regarding this matter, he is entitled by the shari‘ah to implement it.
Similarly, punishments cannot be established by qiyas alone; there has to be a text, as creating an offence on the basis of analogy in the absence of a text amounts to ex post facto creation of the offence. Neither may rules be gleaned from the other areas of law and superimposed on the hudud using qiyas. Sarakhsi has given some important principles here:
Punishment cannot be established by qiyas; there has to be a text.
There is no place for qiyas in determining the amounts in hudud. Nothing can be added by qiyas to [what is given in] the text.
Obligatory amounts cannot be determined by personal opinion. As there is no text available to us [here], the best course to follow is to relegate the matter to the ijtihad of the ruler.
Similarly, the nisab also cannot be determined by personal opinion or qiyas but has to be based on the text. However, where no text is present, the ruler may determine it. In the same way, no condition may be added to or retracted from the hudud on the strength of one’s personal opinion.
Istihsan (Juristic Preference)
The term Istihsan in Islamic law should not be confused with ‘equity’ of English jurisprudence. Historically, English ‘common law’ was based on traditional customs and, as it was not made to change in order to meet the demands of newer ages, it stagnated and was unable to satisfy the public demand for justice. People increasingly felt that the law was inadequate for their needs. People began petitioning the king. The king, being the ‘Fountain of Justice,’ would redress the grievance using his own ‘discretionary sense of justice.’ As more people turned to the king for justice, he delegated the authority of the use of discretion to the Lord Chancellor who would administer justice on the king’s behalf. As the burden mounted still further, special courts had to be constituted in different regions of the realm. These came to be known as ‘Chancery Courts’, and later ‘Equity Courts’. The continual practices of these courts led to the development of their own special principles which were referred to as ‘principles of equity’. These included many novel principles and ways of doing things. The important fact to keep in mind here is that the reason for the formation of these courts was the periodic stagnation of common law.
Islamic law, on the other hand, never faced such problems. Equating qiyas with common law and Istihsan with equity implies that the jurists deviated from the established rule of Islamic law, thinking it was too stringent, and instead came up with a ‘better’, more just rule, using the principles of natural justice; and that this process was called Istihsan because it was an improvement upon the original rule. If this is true, then Shafi‘i jurists were right to condemn it and assert: ‘Whoever practices Istihsan assumes the role of the Lawgiver’.
The Hanafis, who accept Istihsan as a valid means of extracting legal rules, consider it a mechanism for ensuring harmony and analytical consistency within the law. If something appears prohibited in the light of the general principles of law, but has been explicitly permitted by one of the texts, the Hanafis take the position that it is permissible as an exception to the general principle. They use the formula: ‘prohibited under qiyas but permissible under istihsan’ for this purpose. Exceptions to the general principles are made on the basis of the text, consensus, necessity or some other ‘concealed principle’ (qiyas khafiyy). Sarkhasi is worth quoting here:
This [istihsan] is the evidence coming in conflict with that apparent principle (qiyas zahiri) which comes into view without one’s having looked deep into the matter. Upon a closer inspection of the rule and the resembling principles, it becomes clear that the evidence that is conflicting with this apparent principle is stronger and it is obligatory to follow it. The one choosing the stronger of the two evidences cannot be said to be following his own personal caprices.
Another important point made by Sarakhsi is that when the jurist uses istihsan and prefers the stronger rule, he abandons the weaker one and as such it is not permissible for him or his followers to follow the latter. He goes on to explain that when Istihsan is carried out on the basis of a concealed principle (qiyas khafiyy), the established rule does not amount to an exception but becomes a general principle in itself.
Maslahah (Protecting the Objectives of the Law)
Contemporary scholars, including those who prepared the draft of the CII Report, have generally equated maslahah with the principle of ‘utility’ expounded by Jeremy Bentham (d. 1832), apparently because literally maslahah means ‘acquiring benefit or repelling harm (jalb al-manfa‘ah aw daf‘ al-madarrah)’. The technical meaning of maslahah by virtue of which it becomes an accepted principle of Islamic law has been explained by Ghazali in the following words:
As for maslahah, it is essentially an expression for acquiring benefit or repelling harm, but that is not what we mean by it because acquiring benefit or repelling harm represents human goals, that is, the welfare of human beings through the attainment of these goals. What we mean by maslahah, however, is the preservation of the objective of the law (al-muhafazah ‘ala maqsud al-shar‘).
Although Ghazali is considered the foremost expositor of the principle of maslahah, yet it may surprise many that he places maslahah in the category of al-usul al-mawhumah, that is, ‘uncertain principles’. He gives reasons for doing this:
This is among the uncertain principles and whoever considers it as a fifth source is mistaken. This is because we linked maslahah to the objectives of the law (maqasid al-shari‘ah), which are known by the Book [Qur’an], the Sunnah and consensus. Thus, a maslahah which cannot be linked to an objective derived from the Qur’an, the Sunnah or consensus, and is of those alien interests (al-masalih al-gharibah) which are not compatible with the propositions of the law (tasarrufat al-shar‘), is void and abominable. Whoever uses such interests assumes the position of the Lawmaker, just as whoever presumes a rule on the basis of his personal preference (istihsan) assumes the position of the Lawmaker.
Thus, from the perspective of compatibility with the objectives of Islamic law, maslahah may be divided into three categories: the one proved compatible (maslahah mu‘tabarah), the one proved incompatible (maslahah mulghah), and the one which is neither proved compatible nor incompatible (maslahah gharibah).
The first of these, the ‘compatible interests’, are acknowledged by Islamic law either at the level of a specie (naw‘) or at the level of a genus (jins). Ghazali explains that qiyas is nothing but extending the law to a new case on the basis of an interest acknowledged at the level of specie. He further explains that the law can be extended to some new cases on the basis of an interest acknowledged at the level of genus, calling it maslahah mursalah, provided three conditions are fulfilled:
That the new principle does not conflict with any text (nass) or modifies its implications;
That the new principle does not conflict with the general propositions of the law, i.e., the existing principles and rules of the system; and
That the new principle is not alien (gharib) to the system, i.e., it finds a basis in the system.
An alien principle cannot be accommodated in the legal system, unless it fulfills three further conditions:
- It is related to any of the five primary objectives of the law (darurat), i.e., it must aim at preserving and protecting religion, life, progeny, intellect or wealth;
- It is definitive (qat‘i), i.e., it must certainly lead to the preservation and protection of the above-mentioned objectives; and
- It is absolute (kulli) i.e. it must concern the whole of the Muslim ummah and not be limited to a certain group or individual.
Hence, it is impossible to pick at will concepts and principles from other legal systems and ‘transplant’ them in the Islamic legal system. The compatibility test is necessary.
These conditions clearly show the limits of personal opinion and discretion in Islamic law. This issue also leads us to examine in a little detail the approach of those advocating reason untied to legal text, a pure form of naturalism manifest in the work of many of the contemporary Muslim scholars, including those who drafted the Report of the Council.
The Naturalist Argument
The analysis in the previous Section establishes that modern Muslim scholars, including the drafters of the Council’s Report, have not followed the legal theory of a particular school, nor have they come up with a coherent theory of their own. They have, instead, chosen those principles from various schools which they consider helpful in giving more room to discretion. This section explains how this approach, directed at Islamic criminal law, draws from the ‘naturalist’ argument. It calls for considering ‘reason and nature’ (‘aql-o-fitrat) as the basis for ijtihad and, thus, wants to get rid of the stringent conditions laid down by the jurists. If accepted, this approach will demolish the whole edifice of the legal system developed by centuries of legal scholarship and will leave everything to the unbridled discretion of the modern ‘sovereign’ state.
Commonsense, Nature and Ijtihad
Those calling for reforms in Islamic law generally, and critics of Islamic criminal law particularly, come up with the ‘naturalist’ argument when they talk of ijtihad. The call for the use of ‘commonsense’, ‘reason’ and ‘natural instincts’ for discovering the rules of Islamic law or for extending the law to the new cases is, in fact, based on the concept of natural law. Javed Ahmad Ghamidi (b. 1951), an exponent of this approach who headed the Council’s legal committee when it deliberated on reforming the hudud laws, writes:
The shari‘ah concerns itself only where reason has erred or is liable to err; such as the few laws relating to economics, politics, society and etiquettes. There are only five crimes of hudud and ta‘zir for which a fixed penalty has been determined. Everything else has been left to human reason.
Defining the scope of ijtihad, Ghamidi says: ‘This [ijtihad] means that where the Qur’an and the Sunnah are silent, reason and nature (‘aql-o-fitrat) should be consulted. This is what is really meant by ijtihad’. Amin Ahsan Islahi (d 1997), teacher of Ghamidi, better known for his peculiar thesis of coherence in the Qur’an (nazm-i-Qur’an), explaining his position that ‘the most obvious realities of nature’ (badihiyyat-i-fitrat) are part of the Divine law, says:
[The verse of the Qur’an] ‘You may approach them [your wives] in the manner as Allah commanded you’ (Al-Quran 2:222), makes it clear that all the most obvious realities of nature fall within the commands of Allah and form part of the shari‘ah, even though these have not been expressly stated. For example, we have not been ordered to take our food through our mouths and neither through our noses or eyes, but this is something that has been decreed by Allah as He has fashioned us in such a way. One going against this [not expressly stated] ordinance, goes against Allah’s clear, or rather most manifest, law and will be liable to His punishment. We have called it as ‘most manifest’ because Allah has left such matters solely to our nature, which is needless of any guidance respecting them.
This is exactly how the ‘religious’ naturalists approach this issue.
Religious Naturalists and the ‘Neo-Mu‘tazilah’
John Austin (d. 1859), the famous English jurist of the nineteenth century, sums up the thesis of the proponents of this view:
Of the divine laws, or the laws of God, some are revealed or proclaimed, and others are unrevealed. Such of the laws of God as are unrevealed are not infrequently denoted by following names and phrases: ‘the law of nature’ ‘Natural Law’; ‘the law manifested to man by the light of nature or reason’… Paley and other divines have proved it beyond a doubt, that it was not the purpose of revelation to disclose the whole of these duties. Some we could not know, without the help of revelation; and these the revealed law has stated distinctly and precisely. The rest we may know, if we will, by the light of nature and reason; and these the revealed law supposes or assumes. It passes them over in silence, or with a brief and incidental notice.
The Mu‘tazilah in the early Islamic history approached Islamic law in a similar way, asserting that goodness or badness is an inherent quality of acts which can be discovered by reason. The ‘neo-Mu‘tazilah’, as they should be called, have the same view. Thus, Islahi asserts: ‘It would be incorrect to think that difference between the good or evil of a thing is merely an acquired characteristic, and does not have any reasonable, ethical or natural grounds. To consider such is nothing less than sophism’.
The vast majority of Muslim scholars, however, have historically supported the opposing view; that the good or evil of something is not to be determined by reason but through the dictates of the shari‘ah; as reason is liable to err in recognizing good and evil, it cannot be taken as a standard. Even if it is admitted that reason can identify the goodness or badness of an act, the question remains: how does a declaration of reason in a particular case acquire the status of law? To put it in the shari‘ah terminology, how does it become a hukm shar‘i. It is for this reason that jurists explicitly defined the hukm shar‘i as the address of the Lawgiver.
The same debate is found among Western legal philosophers. The positivists take the view that the ‘positive law’ is valid and binding irrespective of the moral considerations about its goodness or badness, while the naturalists take the view that an immoral law is no law as it violates the superior natural law. For Oliver Wendell Holmes, the famous judge of the US Supreme Court, arguing on the basis of the dictates of nature is nothing but ‘ominous brooding in the sky’.
Where the Law is Silent
A question arises here: if the naturalist argument is rejected, how are the gaps in the law to be filled? How is the law extended to novel cases? Muslim jurists discuss an interesting aspect of this issue by framing the question: what was the rule for various acts before the advent of the revelation? Ghazali asserts that at that stage acts were legally neither permissible nor prohibited. This is because permissibility and prohibition both are forms of hukm shar‘i, which requires the address from the Lawgiver. Hence, the rule, according to Ghazali, was tawaqquf, i.e. waiting for revelation. After the advent of revelation, it alone is the standard for determining the goodness or badness of an act. But what is to be done for matters where the shari‘ah outwardly seems silent? Obviously, tawaqquf is no more the option.
Ronald Dworkin (d. 2014), the famous American jurist, calls such issues as hard cases. These are cases where the law is apparently silent or where the rule apparently violates an established principle of law. Dworkin has shown, with considerable force, that for hard cases, the judge relies on the general principles of law rather than his own discretion. The same is the approach of Hanafi jurists. Nyazee, explaining the position of Hanafi jurists, asserts: ‘Once revelation has come, such laws may only be discovered in the light of revelation, because revelation does not pass them over in silence; it indicates them through general principles’. For covering new cases, newer principles can be formulated, provided it is done in accordance with the standard procedure for ensuring the compatibility of the new principles with the existing legal norms. This is what the Hanafi methodology is all about.
Conclusions
Critics of Islamic criminal law have generally relied on the naturalist argument presuming that human reason may singly be used as a source for judging the goodness or badness of an act. While this approach may have led to moral criticism of the positive laws in the West, it has certainly caused serious problems for those who believe in the divinity of Islamic law, as it results in a conflict between reason and revelation. Critics have also found it better to take help from some principles of the various schools of Islamic law which in their opinion created room for discretion. They have also been trying to distinguish between ‘shari‘ah’, which is Divine, and ‘fiqh’ which is human effort, and then asserting that ‘very few’ issues have been touched by revelation, which has left the rest of the issues to reason. Thus marginalizing and undermining the rich legal heritage of fourteen hundred years, these critics have called for what amounts to demolishing the whole legal edifice of Islamic law. Serious students of Islamic law need to elaborate the approach of the jurists who negate the basic presumptions of the ‘neo-Mu‘tazilah’.
