The first Islamic legal theory: Ibn al-Muqaffa' on interpretation, authority, and the structure of the law.

• Author: Lowry, Joseph E.
• Position: Essay

1. INTRODUCTION

   Disorder in the law is a recurring concern in legal systems. Premodern Islamic legal systems are no exception, and indeed we find concerns about disorderly jurisprudence expressed even in the formative period of Islamic law, as we shall see below. Commitment to the rule of law is a commitment to orderly jurisprudence, sometimes in the name of orderly governance. But, of course, anything as complex as a legal system is by nature disorderly. Conceptualizing the ordering of a legal system therefore invariably involves an ideological move in which some spheres of the law are imagined as well ordered (whether or not they are) and others portrayed as potentially more fluid. Obviously, the distinction between settled law and law requiring interpretation, reform, and so on, involves questions of epistemology and authority, especially interpretive authority, issues that are closely linked in premodern Islamic legal thought. (1) We find precisely such a distinction, driven by concerns about epistemology and interpretive authority, at the dawn of Islamic legal theory, in the Risala fi-l-sahaba of 'Abdallah Ibn al-Muqaffa' (d. ca. 757). (2)

   In two extended passages in his Risala, Ibn al-Muqaffa' deals with the relationship between caliphal authority and the Shari'a. He offers a careful explication of the conditions of validly exercised legal interpretation, generating an account of caliphal authority, competence, and legitimacy that depends logically on the way in which he conceptualizes legal interpretation. In order to conceptualize legal interpretation, he must imagine the law's structure in such a way that interpretation appears as a legitimate activity.

   Indeed, Ibn al-Muqaffa' was the first Muslim legal thinker to draw a careful and deliberate distinction between a sphere of law that is settled and unproblematic and a sphere of law that requires interpretation. He imagines the law as a two-part structure in which the two parts correspond to two different degrees of interpretive engagement. His account of the law--even though driven by concerns about caliphal legitimacy and legal diversity in the context of a revealed law administered by a centralized political authority--anticipates two central issues of later Islamic legal theory: what in the divine law's structure justifies interpretation, and who has the right to interpret the law? It is Ibn al-Muqaffa's imagining of the law as a space structured by concerns about interpretation and authority that should be counted as his major contribution to early Islamic legal thought.

   Previous scholarship has most often understood Ibn al-Muqaffa's remarks on law as aimed at endowing the caliph with the authority to legislate in order to resolve instances of legal disagreement. In general, however, Ibn al-Muqaffa' is regarded as having failed in his project to secure for the caliph the legislative authority that would remedy the supposed problem of legal-doctrinal disunity. Here, I shall shift the emphasis from the "problems" of caliphal authority and inconsistent legal doctrines identified by Ibn al-Muqaffa to the fact that Ibn al-Muqaffa', in order to tackle those issues, had to confront head-on the principal epistemological problem of Islamic legal theory, namely, the relationship of indeterminacy to interpretive authority within the context of a revealed law. In this regard, I view Ibn al-Muqaffa' as the first Islamic legal theorist--or at least as the earliest Muslim thinker from whom we have a coherent statement of the central theoretical problem in Islamic law and a solution. His success as a legal thinker (concededly a gifted amateur) who articulated at a very early point what was to become characteristic about Islamic legal thought is significant.

   In what follows I will first consider some previous assessments of Ibn al-Muqaffa's views on law and then offer my own account of the significant features of his discussion of law in his Risala fi-l-sahaba. Finally, I shall consider what Ibn al-Muqaffa' has to tell us about the early history of Islamic law. I will dispense with a recitation of Ibn al-Muqaffa's personal details as these have been dealt with elsewhere and bear only indirectly (if at all) on the points I wish to make. (3)

2. BACKGROUND

   That Ibn al-Muqaffa's Risala fi-l-sahaba, a memorandum on imperial government, is relevant to Islamic legal history has long been recognized. (4) Joseph Schacht rightly sees in Ibn al-Muqaffa' "the most important outside witness for the development of Muhammadan legal theory," but by this Schacht meant that Ibn al-Muqaffa' used the terms sunna and ra'y in ways that reinforced Schacht's own conclusions about the development of prophetic hadith and their function in legal argument. (5) More usually Ibn al-Muqaffa' is lauded for perceiving what modern scholars have considered a serious problem attending the earliest period of Islamic legal history: the development of divergent doctrines of positive law, whether along regional or methodological lines. J. D. Latham argues that Ibn al-Muqaffa' was hyper-conscious of the "problem of legal diversity," and N. J. Coulson, too, grants to Ibn al-Muqaffa' the perspicacity to have perceived "the dangers inherent in such diversity." (6) Goitein was astonished by Ibn al-Muqaffa's "detailed treatment of the necessary reforms of Muslim law." (7) Some scholars have drawn graver consequences from the failure of a centralized legislative authority to assert itself in Sunni Islam. (8) Notwithstanding the fact that it is precisely the diverse body of private jurists and their divergent doctrines that are characteristic, perhaps uniquely so, of Islamic law, and that this diversity is one of the features of Islamic law that has enriched it as an intellectual tradition, I think that Ibn al-Muqaffa's perspicacity lies elsewhere.

   There is no doubt that Ibn al-Muqaffa' did see legal-doctrinal diversity as an impediment to efficient imperial administration. (9) But in articulating the justification for caliphal resolution of this doctrinal diversity, and in his more general remarks on caliphal authority, Ibn al-Muqaffa' bad to sketch out what has been called an "economy of certainty," though perhaps "economy of uncertainty" would be more apt. Cognoscenti of usul al-fiqh will recognize this phrase as coming from the title of a work that helped inaugurate the modern study of Islamic legal theory, Aron Zysow's doctoral dissertation entitled "The Economy of Certainty: Introduction to the Typology of Islamic Legal Theory." (10) Zysow divided Islamic legal theories into two kinds which he labeled "materialist" and "formalist." In very general terms, the two theories approach the problem of achieving certain knowledge ('ilm) of the sacred law differently, either by manipulating the boundaries of an authoritative corpus of texts, or by allowing for the functional validity of legal reasoning practiced on a non-authoritative body of texts, respectively. (11) Variations in these economies of certainty (or of uncertainty) occur in regard to the proportion of the law that is properly subject to interpretation by the human mind and the proportion that, because of its brute authority, or transparency, or both, requires no such interpretation.

   Although Ibn al-Muqaffa's ideas about law are not necessarily genetically related to either of these approaches, his own account of the law's structure is very much in the spirit of the formalist approach. Ibn al-Muqaffa' thus engages precisely in the all-important project of Islamic legal theory in general--of structuring the law according to a dichotomy between what is and what is not subject to interpretation. This structuring necessarily involved a concession to interpretive uncertainty, namely, by creating a realm in which human interpretation can validly function. However, this sphere in which interpretation is necessary--the part of the law in which some inherent uncertainty is built in--can be rendered functionally or provisionally stable by granting to specific interpreters the right to make absolutely authoritative interpretations. This strategy allows control over that part of the law acknowledged as potentially subject to variable interpretations to be regained.

   In classical usul al-fiqh, it was the jurists who granted themselves the right of authoritative interpretation, in their capacity as the sole authorized practitioners of legal interpretation (ijtihad). This made for increased certainty for individuals (muqallids) bound by the authoritative interpretations of mujtahids, but not, of course, for doctrinal uniformity. In Ibn al-Muqaffa's Risala fi-I-sahaba, it is the caliph, it is argued, who enjoys the sole right to engage in authoritative interpretation. This proposal made, at least in theory, both for certainty for those subject to the law and for doctrinal uniformity. However, in his conspicuous concern with legal epistemology and interpretive authority, Ibn al-Muqaffa emerges as the earliest exponent of a legal theory that is, in its broad outlines, characteristic of much if not all subsequent Islamic legal thought.

3. IBN AL-MUQAFFA'S LEGAL THEORY

   Ibn al-Muqaffa sets forth his ideas on legal theory in two passages in his Risala. In the first, in the context of a discussion of the Khurasani army, he deals with theological aspects of obedience to the caliph, especially the implications of the phrase la ta'a li-makhluq fi ma siyat al-khaliq. In the course of discussing this phrase and related issues, Ibn al-Muqaffa delineates with considerable precision those areas of law that are subject to human (i.e., caliphal) interpretation and those that are not. In the second passage, which occurs in the course of a discussion of Basra and Kufa, Ibn al-Muqaffa gives an account of the causes of legal disagreement and proposes a procedure whereby the caliph could unify disparate legal doctrines.

   I propose to read these two passages together and to...