How can this interpretational fluidity be reconciled with the formalism of usul al-fiqh? Most muftis would argue that they are following traditional tools of usul, such as istihsan (equity), maslaha (public interest), and sadd al-dhara’i (to block the ways possibly leading to undesired consequences). Maslaha, for example, allows scholars to adopt socially useful rules that may not be explicitly sanctioned by the texts of the Qur’an and hadith. As Masud explains, maslaha is seen as a way of interpreting “existing rules by disengaging the spirit of these rules from the letter; exceptions and extensions are reached which command practical utility and correspond to the fundamental goals of the law.” Like sadd al-dhara’i and istihsan, maslaha is used to avoid undesirable or absurd results of formalistic interpretation.

Because these concepts are seen as tools of usul, they, like other jurisprudential principles, are thought to help the muftis “discover” the true or right ruling. As Sherman Jackson explains, however, this assumption is incorrect. Maslaha, for example, may facilitate the imposition of a mufti’s ideological notions of what is right or what is in the public interest, and it would allow this imposition to occur in the guise of systematic application of the “spirit” of existing laws. The critique offered by Jackson is that of new legal realism—that is, muftis, like common law judges, are purporting to discover the best rule whereas in actuality it is their own ideological presuppositions that are determining which result they reach. Legal formalism is not a value-neutral, mechanical means of deducing the “truth.” Instead, formalism serves to constrain, validate and provide rhetorical force to the decision maker’s presuppositions.

Although the legal realist critique, as applied to Islamic law, does not invalidate the rulings themselves, it does require that muftis acknowledge that they are doing more than merely deducing rules. As Jackson emphasizes, a mufti’s incorporation of socio-cultural and ideological elements into his/her judgments does not necessarily make his/her rulings wrong or fraudulent. Rather, it points to the fact that the ruling may suppress or downplay certain approaches to the problem while highlighting others. Moreover, in many cases, some of the alternative approaches ignored by muftis in their process of deduction may be as legitimate as the approach the mufti in fact uses. Jackson, for example, uses a ruling of Imam al- Juwayni to make this point: “Al-Juwayni availed himself of a rhetorical force supplied by usul al-fiqh and the legal master narrative in order to drown out certain questions, sources and inconsistencies and to engender certain associations in the mind of his reader in order to make his legal cum practical argument stick.”

In “When Women Went to Mosques: al-Aydini on the Duration of Assessments”, A. Kevin Reinhart makes this point more concrete when he discusses the relationship between the ‘illa (effective cause or rationale) of a rule and the hukm (assessment) of the situation at issue. He explains that the “ ‘illa stands at the center of shari’a epistemology” because analogies are drawn between a given, known prohibition and new situations on the basis of a shared ‘illa. For example, the Qur’an prohibits the drinking of wine but does not specify the reason wine is prohibited. Jurists sifted through the various properties of wine and deter-mined that wine is impermissible because of its intoxicating effect. On the basis of this ‘illa, jurists extended the prohibition to other intoxicants, such as another fermented drink called “nabidh.”

As Reinhart points out, however, “there is no objective procedure” for determining which characteristic of wine serves as its ‘illa: “Why should the rationale for prohibiting (wine) be that it is intoxicating and not, rather, that it is a product of the grape? More important, how can a jurist be certain that it is the ‘illa of (wine) that best applies to nabidh, and not the permissibility of water, or the implicit permissibility of things unmentioned in Revelation?”

This uncertainty, however, is not necessarily problematic. The choice among various ‘illa and the relationship between the ‘illa and the duration of any given assessment adds flexibility to Islamic law—a flexibility that can be utilized by both reformers and conservatives. A particular law stays in effect until it is determined that the ‘illa is no longer maintained. The effective cause of a rule justifies that rule until social or other circumstances eliminate that rationale. If wine or nabidh, for example, were to all of a sudden lose their intoxicating effect, they would no longer be prohibited.

Although in Reinhart’s case study (al- Aydini’s ruling on women going to the mosque), the ‘illa of a particular hadith was extended to novel situations in a way that was discriminatory toward women, the potential is there for other, more positive uses of ‘illa. For example, in the case of al-Aydini, the hadith from which he extrapolated other rules “categorically condemned interference with women’s attendance at the mosque.” In other hadith, the Prophet allows menstruating women and other “young, vulnerable or unmarried women who ordinarily are kept from public view” to attend the Islamic liturgical events as long as they stayed away from the place where other women prayed. This latter hadith suggested to the founders of the Sunni and Shi‘i madhahib that because women’s attendance to religious events was restricted “during their periods of ritual disorder,” the restriction could be extended “to women who might be occasions of public disorder.” “A later generation of scholars” further extended this ‘illa and “banned all women of whatever age from mosques on the grounds of possible ‘deleterious consequences’.”

In light of changing perceptions and roles of women, this ‘illa is clearly outdated and reflects Jackson’s concern about a mufti’s imposition of his/her ideology on his/her fatwas in the guise of formalism. A reevaluation of the effective cause of this rule and other rules that from human rights or other modern perspectives may seem highly problematic may go a long way in reforming Islamic law. The legitimacy of this reform project is underscored by the fact that what is being reexamined in each case is not a mechanically deduced “truth,” but instead a socio-cultural presupposition that shaped the process of ‘ifta.

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ASMA UDDIN is Associate Editor of Islamica Magazine.

References: Jackson, Sherman. “Fiction and Formalism: Toward a Functional Analysis of Usul al-fiqh.” Studies in Islamic Legal Theory. Ed. Bernard Weiss. London: Brill, 2002; Masud, Muhammad Khalid. Shatibi’s Philosophy of Islamic Law. New Delhi: Kitab Bhavan, 1997; Masud, Muhammad Khalid. Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge: Harvard University Press, 1996.