4. Law, Sharīʿa, and Human Reason

As Tymieniecka points out, every investigation of human reason, carried out by means of reason itself, necessarily ends up being an investigation concerning “not the mind per se, human reasoning and rational powers, but reality, life, world and the role of the mind in the unity of living beings” (Anna-Teresa Tymieniecka, “Toward the Manifestation of Reason in the Edifice of Life”, in Manifestations of Reason. Life, Historicity, Culture, part 2, Phenomenology in the Adriatic Countries, ed. Anna-Teresa Tymieniecka, Springer Science-Business Media, Dordrecht 1993, p. xi). Therefore, even my analysis will focus on the role of reason in conceiving and systematizing a legal order, with major consequences on the comprehension of society and justice.

“So out of the ground the LORD God formed every animal of the field and every bird of the air, and brought them to the man to see what he would call them; and whatever the man called every living creature, that was its name. The man gave names to all cattle, and to the birds of the air, and to every animal of the field; but for the man there was not found a helper as his partner”. Genesis, II, 19–20 (trans. The New American Bible, ed. United States Conference of Catholic Bishops, Washington 2002).

On the creative power of the word in the Judeo-Christian culture, see Whitney Shiner, Proclaiming the Gospel. First-Century Performance of Mark, Trinity Press International, Harrisburg 2003, pp. 191–192. It is worth recalling the words of Schepis, according to whom in the “Hebrew paradigm the importance of the word (dabar) is central. The existential, cultural and political heritage of a nomadic people is rooted in it. The dabar, unlike the logos that clarifies thought in the demonstration of concepts, is a limit-place, coexistence of contradictions, of blurred meanings; it is not a point of arrival, but a starting point” (Maria Felicia Schepis, Colui che ride. Per una ricreazione dello spazio politico, Franco Angeli, Milan 2011, pp. 107–108). Moreover, while explaining the crucial role of symbols, Alleau underlines the importance of language, because it is by naming objects and creatures that man gives them significance and meaning, in what the author refers to as logosphere. Cf. René Alleau [1976], La scienza dei simboli. Contributo allo studio dei principi e dei metodi della simbolica, Sansoni, Florence 1983, p. 166.

The Gospel according to John, I, 1 (trans. The New American Bible, cit.). It is worth mentioning the Stoic idea of the λόγος σπερματικος (Logos spermatikòs), or ratio seminalis, which was later reinterpreted and incorporated by Christian theology, emphasizing the creative power of the λόγος and its “seeds” in human reason. See Maryanne Cline Horowitz, Seeds of Virtue and Knowledge, Princeton University Press, Princeton 1998, p. 49.

According to Bertocci, “God is the creator of co-creators, for man does not create outright - that is, the very possibilities of creation. But man is co-creator with God; and God is implicated in the creations, the good and the bad creation of man. Likewise, man as co-creator with God has to accept the consequences of the order within which God must work if man’s creativity is to exist at all” (Peter A. Bertocci [1970], The Person God Is, Routledge, London 2002, p. 312).

“Vergine madre, figlia del tuo figlio”. Dante [c. 1321], Paradiso, XXXIII, 1. The English translation comes from Divine Comedy, Paradiso, trans. Henry Wadsworth Longfellow, Ticknor and Fields, Boston 1867, p. 217.

“Tu se’ colei che l’umana natura / nobilitasti sì, che ‘l suo fattore / non disdegnò di farsi sua fattura”, Ibid., XXXIII, 4–6. “Thou art the one who such nobility / To human nature gave, that its Creator / Did not disdain to make himself its creature”. Paradiso, trans. Longfellow, cit., p. 217.

For the contextualization and meaning of the term Theotókos, see Frederic M. Jelly, o.p., Madonna. Mary in the Catholic Tradition, Wipf and Stock Publishers, Eugene 1986, pp. 90–99.

While this point appears more evidently in visual arts, the philosophical traces of this conception can be found even in literary production, with special regard to the notions of fantasy and fantastic, which greatly developed in the Western world. In his academic production on literary criticism, Tolkien describes the artistic act in the genre of fantasy as “sub-creation”. According to the author, who is implicitly referring to the Western and Christian tradition, the human faculty of shaping new worlds in artistic forms reflects the very nature of man, to be considered both as a creature and as a (co-)creator. “Fantasy remains a human right: we make in our measure and in our derivative mode, because we are made: and not only made, but made in the image and likeness of a Maker”. John R. R. Tolkien [1947], “On Fairy-Stories”, in The Monsters and the Critics and Other Essays, ed. Christopher Tolkien, Harper Collins, London 1997, pp. 139 ff., 145.

The system of the sources of law in Roman time was rather complex and multifaceted, with various changes taking place over the various phases of the life of Rome. However, it is possible to recognize a fil rouge in the acknowledgment of men’s power in creating regulations. Cicero, Gaius, and Justinian list three main sources of law, every one of which referred to humanmade rules and norms: legislation, resolutions of the Senate, and edicts of the magistrates. From the second century A.D. it is possible to add imperial enactment as a source of law, following the acquirement of a de facto legislative power by the Caesars. For an in-depth analysis of the makers of Roman law in the framework of the sources, see O. F. Robinson [1997], The Sources of Roman Law. Problems and Methods for Ancient Historians, Routledge, London-New York 2006, ch. 1; Paul du Plessis [1994], Borkowski’s Textbook on Roman Law, Oxford University Press, Oxford 2010, pp. 27–62.

While popes and emperors were undoubtedly enabled with the juridical faculty of creating law, this legislating function is not to be interpreted in the modern or contemporary sense. As Grossi observes with regard to temporal power, the legislative production of early medieval legislators heavily relied on customs, with the political authority manifesting the lex non scripta of custom with a lex scripta (see Paolo Grossi [2007], A History of European Law, trans. Laurence Hooper, Wiley-Blackwell, Chichester 2010, pp. 13–14).

The compilation of the Corpus Juris constituted the very basis of Western law for centuries, at the point of being considered as the major achievement of the reign of Justinian, who is even generously praised by Dante in his Paradiso (canto VI) for it. From this point of view, “the writing of the Corpus Juris Civilis expressed Justinian’s obedience to his divine call to rule Christendom after God’s design. The emperor, under God, was the font of justice. And, while the emperor’s will was law, he was yet under the law, for the law granted him his authority. His rule must reflect God’s perfect justice” (Craig A. Stern, “Justinian: Lieutenant for Christ, Legislator for Christendom”, in Regent University Law Review, vol. XI, n. 1, 1998–1999, p. 157). With regard to what will be noted on the Islamic perspective, it is interesting to notice that in Islam the legislating function of the transcendent divinity prevents human authorities—even the highest—from being legislators, while in the Christian perspective it may be said that authorities exercise a legislative function because so does Christ, as mediator between heaven and earth.

On Christ as legislator the thought of John Mair is particularly important. On this point, see J. H. Burns, The True Law of Kingship. Concepts of Monarchy in Early-modern Scotland, Clarendon Press, Oxford 1996, p. 49.

As it has been observed, “the likeness of God seen in man is a precondition for revelation because it institutes a compatibility between divine Logos and human logos. Man is a creator and a poet as long as he resembles God, or, precisely speaking, Christ” (Bogumil Jarmulak, “Theology of Beauty in Evdokimov”, in The Glory of Kings. A Festschrift in Honor of James B. Jordan, eds. Peter J. Leithart, John Barach, Pickwick Publications, Eugene 2011, p. 277).

The importance of the judicial power and its role in the respective legal orders will be discussed in a paragraph dedicated to the idea of enforceability, in Chap. 5.

It is worth considering the position of Thomas Paine, who expressly pointed out the correlation between the homo creator, or homo faber, being created in God’s image and thus participating to his creative activity and lawmaking. Man’s activity as a creator, according to the author, cannot but be reflected in his activity as a lawmaker. With regard to this, see Jack Fruchtman jr., The political philosophy of Thomas Paine, The Johns Hopkins University Press, Baltimore 2009, pp. 47–55.

Allāh is described in the holy text of Islam as “the Creator of all things” (VI, 102; XIII, 16; XXXIX, 62; XL, 62) and “the Creator of the heavens and the earth” (XIV, 10; XXXIX, 46; XLII, 11). The divinity, when addressing directly man with regard to the human seed, testifies his faith in his creative power, by asking: “Is it ye who create it, or are We the Creators?” (LVI, 59). In the known dispute against the so-called associators (mushrikūn), who associate Allāh in his omnipotence to other beings and therefore put in question the tawḥīd, the Qurʼān states: “Do they indeed ascribe to Him as partners things that can create nothing, but are themselves created?” (VII, 191). This latter point is particularly significant because the act of creating is regarded as the real distinguishing characteristic of the divinity, while the idols associated to Allāh are to be considered as his creatures, thus fundamentally deprived from the divine power of creating. The aforementioned excerpts follow the translation of Ali, respectively, at pp. 324, 592, 1198, 606, 1194, 1248, 1414, 400.

“In relation to the acts of creation, He is styled as al-Khaliq (Creator); al Bari’ (maker of soul); al-Mufawwir (Fashioner of shapes) and al-Badi’ (wonderful originator)”. Muḥammad ʻAzīz Aḥmad, The Nature of Islamic Political Theory, Maʻaref, Karachi 1975, p. 96. Cf. Yasin T. al-Jibouri, Allah. The Concept of God in Islam, vol. I, AuthorHouse, Bloomington 2012, p. 216.

“And He taught Adam the names of all things; then He placed them before the angels, and said: ‘Tell Me the names of these if ye are right.’ They said: ‘Glory to Thee: of knowledge we have none, save what Thou hast taught us. In truth it is Thou who art perfect in knowledge and wisdom.’ He said: ‘O Adam! tell them their names.’ When he had told them, Allah said: ‘Did I not tell you that I know the secrets of heaven and earth, and I know what ye reveal and what ye conceal?’” Qurʼān, II, 31–33, trans. Abdullah Yusuf Ali [1934], The Meaning of the Holy Qurʾān, Amana Publications, Beltsville 2004, pp. 24–25. This excerpt is particularly significant because of the exclusiveness of the power of naming things, which is not shared with man as in the corresponding biblical version but seen here as something inherent to the transcendent nature of God, to whom nothing and nobody can be associated or compared.

The prohibition of representing Allāh follows the affirmation of the total transcendence of the divinity, which cannot be limited by any plastic representation or intellectual exhaustive comprehension. As for the human figure, the Qurʼān does not explicitly forbid its artistic reproductions, but for the aforementioned reasons and because of what is related in some ʼaḥādīth, depicting human imagery is discouraged when not forbidden. On the complex issue of the relationship between Islam and images, see Titus Burckhardt, L’art de l’Islam. Langage et Signification, Sindbad, Paris 1985, pp. 65–77.

As Schuon argues, the Islamic restriction on the human images, “by eliminating certain creative possibilities, intensified others, the more so since it was accompanied by the express permission to represent plants; hence, the capital importance of arabesques, and of geometrical and botanical decorative motifs” (Frithjof Schuon, “Islamic art”, in Voices of Islam. Voices of art, beauty, and science, vol. IV, ed. Vincent J. Cornell, Praeger, Westport-London 2007, p. 1). On Islamic aniconism, see also Hunt Janin, The Pursuit of Learning in the Islamic World, 610-2003, McFarland & Company, Jefferson-London 2006, pp. 184 ff. For an analysis of the relationship between Islamic and Judaic aniconism, see the classic text of Tryggve N. D. Mettinger, No Graven Image? Israelite Aniconism in Its Ancient Near Eastern Context, Almqvist & Wiksell International, Stockholm 1995, pp. 69–80.

Ibid.

It is not to be forgotten that the Greek word μυστήριον (mystḗrion) does not simply refer to an unknown object but to a revealed secret, that is to say to something unknown but that is in some way detectable. The word also refers to ancient cults of initiation, where sectarian rituals served the purpose of introducing the new candidate into a new knowledge. Moreover, it is not to be forgotten that μυστήριον, properly reinterpreted, was used to refer to the Christian Sacraments as well. On its meaning in the initiation rituals, see David Torevell, Liturgy and the Beauty of the Unknown. Another Place, Routledge, London-New York 2007, ch. 5.

With regard to the legislators as individuals concretely operating on norms, especially in the thought of Aristotle, see Dario Ventura, Giustizia e costituzione in Aristotele, Franco Angeli, Milan 2009, pp. 80–81, 105–117.

Another possible translation is “household management”, furtherly emphasizing the normative dimension of the Greek suffix -nomíā, denoting something inherent not just to the domain of God but to the concrete managerial skills of humans as well. On this term and on its possible meanings and usages, see Giorgio Agamben, Il Regno e la Gloria. Per una Genealogia Teologica dell’Economia e del Governo, Neri Pozza, Milan 2007, pp. 31–64.

For the juridical implications in the tragedy of Antigone, see François Ost, Raconter la loi. Aux surces de l’imaginaire juridique, Odile Jacob, Paris 2004, pp. 162–203; Giovanni Magrì, “Giustizia”, in Luoghi della filosofia del diritto. Idee, strutture, mutamenti, ed. Bruno Montanari, Giappichelli, Turin 2012, pp. 70–76.

Ibid., I, 1.

“Est igitur, quoniam nihil est ratione melius, eaque <est> et in homine et in deo, prima homini cum deo rationis societas. Inter quos autem ratio, inter eosdem etiam recta ratio [et] communis est: quae cum sit lex, lege quoque consociati homines cum dis putandi sumus”. (“And therefore, since there is nothing better than reason, and it is found both in humans and in god, reason forms the first bond between human and god. And those who share reason also share right reason; and since that is law, we humans must be considered to be closely allied to gods by law”.) Marcus Tullius Cicero [c. 52 BCE], De Legibus, I, 23, English excerpt from On the Commonwealth and On the Laws, ed. James E. G. Zetzel, Cambridge University Press, Cambridge 1999, p. 113.

On this point, see Etienne Gilson, John Duns Scotus. Introduction to His Fundamental Positions, trans. James Colbert, T&T Clark, London-New York 2019, pp. 479 ff. In the words of Duns Scotus, “some general laws that dictate correctly are pre-established by the divine will, and not indeed by the divine intellect as it precedes an act of the divine will” (John Duns Scotus [c. 1300–1308], Ordinatio I, d. 44, q. un., translation from, Selected Writings on Ethics, trans. Thomas Williams, Oxford University Press, Oxford 2017, p. 96).

Duns Scotus, Ordinatio I, d. 44, q. un., trans. from Selected Writings on Ethics, cit., p. 96.

Saint Thomas addresses this issue in his treatise on law in Summa Theologiae [1265–1274], where he states that “law is a rule and measure of acts that induces persons to act or refrain from acting. For law [Lat.: lex] is derived from binding [Lat.: ligare] because law obliges persons to act. And the rule and measure of human acts is reason, which is the primary source of human acts, as is evident from what I have said before. For it belongs to reason to order us to our end, which is the primary source regarding our prospective action, as the Philosopher says. And the source in any kind of thing is the measure and rule of that kind of thing (e.g., units in numbers and first movements in movements). And so we conclude that law belongs to reason” (Thomas Aquinas [1265–1274], Summa Theologiae, I-II, q. 90, art. 1). Thomas remarks the point, highlighting that “law in the strict sense primarily and chiefly regards ordaining things for the common good. But ordaining things for the common good belongs either to the whole people or to persons acting in the name of the whole people. And so lawmaking belongs either to the whole people or to a public personage who has the care of the whole people. For also in all other matters, ordaining things for ends belongs to those to whom the ends belong” (Summa Theologiae, I-II, q. 90, art. 3). The translations come from Treatise on Law, trans. Richard J. Regan, Hackett Publishing Company, Indianapolis-Cambridge 2000, pp. 1, 4–5. For a commentary on the Aquinas’ conception of the nexus law-reason, see Brendan F. Brown, “The Influence of St. Thomas Aquinas on Jurisprudence”, in The Catholic Lawyer, vol. III, n. 4, art. 11, Queens, Autumn 1957, pp. 356–364.

“Et sic ex quatuor praedictis potest colligi definitio legis, quae nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata”. Thomas Aquinas, Summa Theologiae, I-II, q. 90, art. 4. The translation comes from Treatise on Law, cit., p. 6.

Stating that human reason actively participates to the reason of God doesn’t mean that the rationality of men simply derives his prerogatives from the divine one, but that human reason is per se legitimated to develop an autonomous narrative. With regard to law, and as exhaustively explained by Coughlin, “Thomas held that positive law based on human reason participates in the divine law present in the mind of God” (John J. Coughlin, Law, Person, and Community. Philosophical, Theological, and Comparative Perspectives on Canon Law, Oxford University Press, New York 2012, p. 65).

It is interesting to compare this point to Thomas’ view on determinism. As it has been observed, according to the Aquinas, “Nature has laws, and God is their source; they are created and furnished with things. The determinism of laws is providential” (Patrick Halligan [1988], “The Environmental Policy of Saint Thomas Aquinas”, in Aquinas and Modern Law, eds. Richard O. Brooks, James Bernard Murphy, Routledge, London-New York 2016, p. 497). Similarly, man is created in God’s image, and his rationality is capable not just of understanding but also of establishing an autonomous level of law, determined by its condition as a rational creature. However, given man’s free will, determinism cannot be accepted at the point of depriving man of its capacity of regulating society, with all the consequences this implies. On the Aquinas’ view on determinism and free will, see James F. Keenan, s.j., Goodness and Rightness in Thomas Aquinas’s Summa Theologiae, Georgetown University Press, Washington 1992, pp. 45 ff.

Hugo Grotius [1625], De jure belli ac pacis libri tres, I, 1, X. According to Grotius, “Natural right is the rule and dictate of right reason, shewing the moral deformity or moral necessity there is in any act, according to its suitableness or unsuitableness to a reasonable nature, and consequently, that such an act is either forbid or commanded by God, the author of nature”. The translation comes from The Rights of War and Peace, trans. Jean Barbeyrac, ed. Richard Tuck, Liberty Fund, Indianapolis 2005, pp. 150–151.

With regard to this it is worth remembering that the very nature of Catholic canon law “reflects the nature of the Church: it is truly human because the Church is a human community; it has an affinity with the divine because it is an integral part of the Church as sacrament. In the law itself, human prudence blends with divine wisdom in a close union but without confusion. This complex nature gives to canon law its incarnation character” (Ladislas M. Orsy, s.j., “Theology and Canon Law”, in New Commentary on the Code of Canon Law, eds. John P. Beal, James A. Coriden, Thomas J. Green, Paulist Press, New York-Mahwah 2000, p. 2).

The concept of Christ as mediator between the reason of man and the reason of God, although not specifically referred to the legal field, has been exhaustively approached by Ratzinger in his reflection on Christian faith and reason. According to Ratzinger, “the faith of the Church has always insisted that between God and us, between his eternal Creator Spirit and our created reason there exists a real analogy” (Joseph A. Ratzinger [H. H. Benedict XVI], “Faith, Reason and the University. Memories and Reflections”, lectio magistralis given at the Aula Magna of the University of Regensburg, September 12th, 2006, published in Islamic Studies, vol. XLV, n. 4, Islamic Research Institute, International Islamic University, Islamabad 2006, p. 599).

Edward Coke [1628], The First Part of the Institutes of the Laws of England, vol. I, J. & W. T. Clarke et al., London 1832, p. 97b.

The qualifications of sharīʿa as being transcendent and immutable are shared by Salim as well (Arskal Salim, Challenging the Secular State. The Islamization of Law in Modern Indonesia, University of Hawai’i Press, Honolulu 2008, p. 12). However, while his definition of fiqh as mutable is entirely sharable, the qualification of the same concept as temporal can be misleading, for the reasons that will be explained in the next chapter of this book.

The exclusive authorship of Allāh in creating and establishing the “laws” of sharīʿa is common to Shīʿa Islam as well, notwithstanding its different approach to human mediation. With regard to Allāh being the only origin of law from the perspective of Shīʿa, it is possible to recall the words of Ayatollah Khomeini, who stated that “in Islam the legislative power and competence to establish laws belongs exclusively to God Almighty. The Sacred Legislator of Islam is the sole legislative power. No one has the right to legislate and no law may be executed except the law of the Divine Legislator”. Ruhollah Khomeini [1970], Islamic Government. Governance of the Jurist, trans. Hamid Algar, The Institute of Compilation and Publication of Imam Khomeini’s Works, Tehran 2002, p. 53. Moreover, it is worth noting that in Islam “there is no authority – person or assembly [personal or institutional] invested with the power to create a juridical norm; in fact, not even to simply modify a rule [which is] in force since ten centuries. The idea of law, in its Western sense is unknown here” (Y. Linant De Bellefonds, “The Formal Sources of Islamic Law”, trans. M. Khalid Mas’ud, in Islamic Studies, vol. XV, n. 3, Autumn 1976, p. 189).

As it has been stated, “Sharia is the law itself whereas fiqh is the knowledge of that law” (Niaz A. Shah, Islamic Law and the Law of Armed Conflict. The Conflict in Pakistan, Routledge, London-New York 2011, pp. 12–13).

It could be argued that the process by which fiqh is derived is actually a process of lawmaking and legislative production. However, in the Islamic view, the only origin of law is to be considered Allāh and the only straight path to follow the sharīʿa. While from a practical point of view we can state that elaborating fiqh means producing jus, it is not equivalent to creating lex. In my work, I will focus on the Islamic perspective of the juridical phenomenon, that is to say how the Islamic tradition conceived its idea of normativity to shape a comprehensive legal order. The point is highlighted by Khadduri, according to whom fiqh represented the answer to the practical need of other rules and norms that were not contained in the Qurʼān, however without contradicting the premises of Allāh as the sole legislator. The necessity of bringing about further juridical responses to the pragmatical exigences of the community, therefore, did not cause the introduction of a human and autonomous level of legislation, but the elaboration of fiqh, with the aforementioned philosophical implications, which could not be considered as a contradiction to the divine authorship of law (on this, see Majid Khadduri [1955], “International Law”, in Law in the Middle East, vol. I, Origin and Development of Islamic Law, eds. Majid Khadduri, Herbert J. Liebesny, The Lawbook Exchange, Clark 2009, p. 352). Therefore, and precisely for the different theorization of human reason in its relationship with the legal order, any conceptual equation between fiqh and (Western) law (for instance, Salim, Challenging the Secular State, cit., p. 12) is not sharable.

In the words of al-Shāfiʿī, in summarizing the roots and the attitude of human reason toward them: “Certain traditions have come from the Apostle on these matters for which there are no specific texts in the Qur’an, but the Apostle has specified on God’s behalf the meaning intended by Him, while the Muslims provided a number of derivative rules on which the Apostle laid down no specific sunna” (Muhammad ibn Idrīs al-Shāfiʿī, al-Risāla fī Uṣūl al-Fiqh (Treatise on the Foundations of Islamic Jurisprudence), trans. Majid Khadduri, Islamic Texts Society, Cambridge 1997, p. 149). For a comprehensive analysis on the process of derivation of legal norms from the sources, see Serdar Kurnaz, Methoden zur Normderivation im islamischen Recht. Eine Rekonstruktion der Methoden zur Interpretation autoritativer textueller Quellen bei ausgewählten islamischen Rechtsschulen, EB Verlag, Berlin 2016.

I specify here qualified interpreter, because the performance of this rational effort presupposes the ability of performing it correctly, thus a certain knowledge in the Islamic legal field. However, in classical Islam the debate was particularly vivid as for who could be considered entitled to the right of exercising ijtihād. On this last point, see Taha Jabir Al-Alwani, Issues in Contemporary Islamic Thought, The International Institute of Islamic Thought, London-Washington 2005, pp. 102–106.

It should be noted that, following Schacht’s pioneering opinion, in literature a recurring statement is that “the gates of ijtihād are closed” since the tenth century, due to the number of legal opinions produced in the past and to the non-necessity to give innovative and different interpretations to cases that are to be considered already solved. For an in-depth analysis on this concept, see Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, Oxford 1964, pp. 69–75; Intisar A. Rabb, “Ijtihād” (voice), in The Oxford Encyclopedia of the Modern Islamic World, vol. II, ed. John L. Esposito, Oxford University Press, Oxford 1995, pp. 179 ff.; more briefly, see Cyril Glassé [1989], The New Encyclopedia of Islam, Altamira Press, Walnut Creek-London 2002, p. 209. The view regarding the closure of the gates of ijtihād has been however challenged by some scholars such as Hallaq (Wael B. Hallaq, “Was the Gate of Ijtihad Closed?”, in International Journal of Middle East Studies, vol. XVI, n. 1, March 1984, pp. 3–41). In contemporary societies, liberal thinkers refer to ijtihād to justify evolutive interpretations and innovative conceptions, even in the interactions between sharīʿa and the constitutional State. On the use of ijtihād in the contemporary Muslim contexts as an instrument of legal innovation, see the work of L. Ali Khan, Hisham M. Ramadan, Contemporary Ijtihad. Limits and Controversies, Edinburgh University Press, Edinburgh 2011, especially pp. 80 ff.

This rational effort cannot be applied in the presence of a clear provision present in the Qurʼān or in the sunnah but represents a possible resource only in case of silence of the main roots. Therefore, an essential dimension of ijtihād relies in its usage aimed at understanding an unknown object, which only Allāh knows. Thus, the extremely close relationship between ijtihād and analogy emerges. Again, in the words of al-Shāfiʿī “one is under an obligation to exercise ijtihad only in the search for an unknown object. If one does so, he would be right by doing what he was obligated to do. This is right for him on the basis of the literal meaning [of the text]; only God knows the implicit meaning” (al-Shāfiʿī, al-Risāla, cit., p. 300).

For a reflection on proper and improper use of ijtihād, see Said Shabbar, Ijtihad and Renewal, The International Institute of Islamic Thought, London-Washington 2008, p. 11. While not anybody is considered entitled of engaging in ijtihād, the Islamic legal tradition usually regards positively a jurist performing ijtihād in good faith, although coming to wrong legal conclusions. This last position, however, is not univocally recognized.

Regarding this, the concepts of muʿāraḍa (opposition, contradiction) and tarǧīḥ (consideration, measurement) are emblematic, highlighting the juristic necessity of adapting the rational effort to a changing reality. On this last point, see Ulrich Rebstock, “Abwägen als Entscheidungshilfe in den „uṣūl al-fiqh“. Die Anfänge der „tarǧīḥ“-Methode bei al-Ğaṣṣāṣ”, in Der Islam. Zeitschrift für Geschichte und Kultur des islamischen Orients, vol. LXXX, n. 1, 2003, pp. 110–121.

Reason is considered here to be a gift from Allāh but once again aimed at understanding an objective reality from a subjective viewpoint and not at creating new rules and norms in the absence of indications. To summarize, “God, Glorified and Praised be He, has endowed men with reason by which they can distinguish between differing viewpoints, and He guides them to the truth either by [explicit] texts or by indications [on the strength of which they exercise ijtihad]” (al-Shāfiʿī, al-Risāla, cit., p. 302).

Literally meaning “considering something good”, istiḥsān refers to a juridical operation by which a Muslim jurist, in the understanding of sharīʿa, chooses a (derivative) rule among various possibilities, departing from previously derived rules and even against the principle of analogical deduction. As evident, it represents a particular use of human reason, in which the subjective judgment is particularly involved. Therefore, this possibility is considered something to deal with in an extremely cautious way, avoiding the risk of expressing “creative” positions not supported by any evidence in the roots of fiqh. The exercise of istiḥsān, aside from the various positions admitting or rejecting it, aims in any case at understanding the superior reality of sharīʿa, thus not producing law as in the Western perspective. Notwithstanding the flexibility of this idea, some classical jurists, like al-Shāfiʿī himself, expressed extremely critical positions about the use of istiḥsān, considering it like being wandering without a guidance: “ijtihad should not be exercised except for a specific object, and the object must be something definite that can be determined by means of evidence or resemblance to an established object. Thus, it should be clear that it is unlawful for anyone to exercise istihsan whenever it is not called for by a narrative, whether the narrative is a text of the Qur’an or a sunna, by virtue of which an [unknown] object is sought” (al-Shāfiʿī, al-Risāla, cit., p. 304). For a monographic study on this concept, see Saim Kayadibi, Istiḥsan. The Doctrine of Juristic Preference in Islamic Law, Islamic Book Trust, Kuala Lumpur 2010, especially pp. 30–33, 57 ff. On this concept as an innovative instrument in the Islamic legal tradition, with a marked character of flexibility, see Haim Gerber, Islamic Law and Culture, 1600–1840, Brill, Leiden-Boston-Köln 1999, pp. 92–104. In literature, istiḥsān has sometimes been compared to equity (cf. Rakesh Kumar Singh, Textbook on Muslim Law, Universal Law Publishing, New Delhi 2011, p. 41); however, Makdisi correctly puts in light the inconsistency of this equation, based on the inexistence in the Islamic legal tradition of concepts such as natural law, on whose ground the idea of equity has been built (see John Makdisi, “Legal Logic and Equity in Islamic Law”, in The American Journal of Comparative Law, vol. XXXIII, n. 1, Winter 1985, pp. 63–92). Somehow close to the concept of istiḥsān are the controversial concepts of istiṣlāḥ, based on the idea of public interest (maṣlaḥa), and istidlāl, based on juridical inference. However, and notwithstanding their importance, the analysis of these instruments of comprehension, and of the debates surrounding their possible use, falls outside of the scope of this work.

Heyd’s definition of this concept, that is to say a “law of human origin”, highlights the distinction between it and sharīʿa with specific regard to its origin, rather than to its substantial content. See Uriel Heyd, “Ḳānūn and Sharīʿa in old Ottoman criminal justice”, in Proceedings, vol. III, n. 1, Israel Academy of Sciences and Humanities, Jerusalem 1967, pp. 9–10.

I will come back to this point in Chap. 5, providing an overview of the various ways in which sharīʿa can be incorporated in contemporary constitutional systems.

The most relevant case is the Saudi legal system, where the equivalents of Western laws are called niẓām (pl. ʾanẓima), because the very basis of Saudi legal model is said to be the Islamic sharīʿa, as stated in its de facto constitution, known as Basic Law of Governance (1992). Therefore, the Saudi system cannot enact properly nominated laws, but only royal decrees, considered to be administrative acts somehow conceptually comparable to the ancient qānūn in its relationship with sharīʿa. The same be said about the already mentioned Saudi Basic Law, which is a form of supreme niẓām, but cannot be considered as a constitution. A similar situation is present in the sultanate of Oman, with regard to the royal decrees functioning as laws, however without being addressed to as such.

The same could be said with regard to the State-based political paradigm and a factual abandonment of the universalistic inspiration which characterized the ummah of the believers, notwithstanding the formal preservation of the universal idea of the caliphate up to 1924.

With reference to the Roman element in qānūn, Peters correctly points out that its distinctive dimension, in opposition to sharīʿa, relied on the fact that the “emperor’s will was one of the ‘roots’ of Roman law – the primary one in its latest stages of development”. The author continues by highlighting that “the Ottoman sultans from Mehmed II onward did not hesitate to make such enactments, not, as they understood it, in contradiction of the sharia, but as its implementation” (Francis Edward Peters, The Monotheists. Jews, Christians, and Muslims in Conflict and Competition, vol. II, The Words and Will of God, Princeton University Press, Princeton-Oxford 2003, p. 122). An-Na’im describes eighteenth-century qānūn as “enacted state law […] under European influence” (Abdullahi Ahmed An-Naʿim, Islam and the Secular State. Negotiating the Future of Sharīʿa, Harvard University Press, Cambridge 2008, p. 183).

“The systematic usage of kanun, along with Sharīʿa, by the Ottomans reflected a long tradition of state authority as the lawmaker, which can be traced back to the pre-Islamic Turkish culture that some historians argue underlies Turkey’s modern secularism”. An-Na’im, Islam and the Secular State, cit., p. 190.

Mallat suggests that the use of this rather new form of manmade legislation represented a precursor to the process of Westernization of the Ottoman empire and a first importation of Western legal elements in the Muslim juridical discourse. With regard to this, see Chibli Mallat, Introduction to Middle Eastern Law, Oxford University Press, Oxford-New York 2007, p. 121. On the contamination between the Ottoman legal system and the Western juridical tradition, in the context of the latest period of the sultanate, An-Na’im, Islam and the Secular State, cit., pp. 191–196.

As Ergene points out, the introduction of qānūn by the Muslim leaders was not derived from the Islamic legal vision but on the contrary represented a response to a pragmatic necessity. In the words of the author: “According to Islamic jurisprudence, canonical standards […] regulate the entirety of public and private life. Thus, technically, political leaders do not possess any legislative authority but are responsible solely for enforcing the divine will as reflected in jurisprudential principles. In reality, however, Muslim rulers and their representatives often played important roles in shaping fiscal, administrative, and penal regulations. It is these legislative activities that constitute the basis of qanun legislation” (Ergene, Qanun and Sharia, cit., p. 109).

As in the case of caliphs’ authority in legal matters, see Nimrod Hurvitz, “The contribution of early Islamic rulers to adjudication and legislation: the case of the mazalim tribunals”, in Law and Empire. Ideas, Practices, Actors, eds. Jeroen Duindam, Jill Harries, Caroline Humfress, Nimrod Hurvitz, Koninklijke Brill, Leiden 2013, pp. 135 ff.

The distinction between manmade regulations, intended as mere political and administrative tools, and sharīʿa, intended an expression of the supreme Islamic normativity, is described by March as a pragmatic distinction of competences between jurists and rulers. On this, see Andrew F. March, “Modern Islamic Conceptions of Sovereignty in Comparative Perspective”, in The Oxford Handbook of Comparative Political Theory, eds. Leigh K. Jenco, Murad Idris, Megan C. Thomas, Oxford University Press, Oxford 2020, pp. 549–551.

Analyzing the contemporary legal system is Saudi Arabia, this point is highlighted by Frank E. Vogel, “Saudi Arabia. Public, Civil, and Individual Shariʿa in Law and Politics”, in Shariʻa Politics. Islamic Law and Society in the Modern World, ed. Robert W. Hefner, Indiana University Press, Bloomington-Indianapolis 2011, p. 58. March describes qānūn as siyāsa law, highlighting its political nature (March, Modern Islamic Conceptions of Sovereignty, cit., p. 550).

As Eaton argues, man “is by definition a knower and by destiny a chooser; but, in the Islamic view, he does not have the capacity to make laws for the conduct of society. The belief that God is the sole Legislator flows directly from the Muslim confession of faith, lā ilāha illa ʾLlāh, which, in this context, can be interpreted as meaning ‘there is no legislator but the Legislator’. The message embodied in the Qurān – and the laws derived from it and from the Sunnah of the Prophet – bind the community together; no exterior pressure is required to make this binding effective” (Charles Le Gai Eaton, Islam and the Destiny of Man, State University of New York Press, Albany 1985, pp. 163–164).

See Muhammad Khalid Masud, “Fatwā. Concepts of Fatwā”, in The Oxford Encyclopedia of the Modern Islamic World, cit., p. 8.

It is interesting to consider what Hallaq suggests about the cultural context of the Near East at the time of the rise of Islam, in which the faculty to legislate had been previously attributed to gods. In the words of the author: “It was most natural in this Near Easter milieu for a god to legislate. And it was equally natural that both the Prophet and the Qurān should have taken this tradition for granted. […] In the Qurān, and for Muhammad and the vast majority of people who lived then and long afterwards, God, every god, legislated. The question was which god was the true god, the True Law-giver” (Wael B. Hallaq [2009]. “Groundwork of the moral law: a new look at the Qurān and the genesis of sharīʿa”, in Islamic Legal Theory, vol. I, ed. Mashood A. Baderin, Routledge, London 2014, ch. 4, par. 5). In the words of Crone, “As the ruler of the universe, God issued laws. Adam had received a set of them; so had later prophets, most recently Muhammad, whose version was final. Living in accordance with God’s law was the essence of religion. In the early centuries it was practically all there was to religion” (Patricia Crone, God’s Rule. Government and Islam, Columbia University Press, New York 2004, p. 8). Crone suggests that the exclusive attribution of the legislative power to Allāh finds a reason in the absence in Islam of the concept of natural law inscribed in men’s conscience, provided that only the divinity can freely assign moral value to actions, and in the acknowledgment of the lack of sufficient intellectual resources in human beings to enact just laws with respect to sharīʿa (ibid., pp. 263–266).

In medieval Christendom, monarchs were also considered as custodians and guardians of the legal order, as well as supreme iudices of the community, but at the same time they could enact new regulations, and were therefore vested with a legislating faculty, to ordain society and to regulate social life. This last prerogative is absent in the caliphal world, except with reference to the already mentioned concept of qānūn.

The caliph ruled over the ummah without any formal legislative power. In order to answer the basic needs of the community, the caliph took care of the administrative issues, which, by that time and in that specific context, were not regarded as law at all and therefore were not considered as a part of the juridical conception of Islam. The legal prerogatives of the caliph are to be considered executive but never legislative. Hurvitz explains that the legislative activities of the caliphs in the administrative field were not perceived by Islamic legal literature and should be considered as a de facto legislating activity. For the aim of this work, I focus here on the Islamic view, according to which the caliph could not be considered a legislator, notwithstanding its administrative prerogatives that today could be considered part of a branch of (Western) law. Taking this into consideration, however, would result once again in a forced imposition of Western juridical categories upon a Muslim context. Cf. Hurvitz, The contribution of early Islamic rulers, cit., pp.135 ff. One the non-legislative nature of the caliphal authority, it is necessary to recall the words of Hallaq, according to whom the caliphate “was by no means a distinct or a comprehensive source of law. No edicts regulating law are known to have come down from caliphs, no constitutions, and certainly no legal codes of any kind. Even when no class of legal specialists had yet appeared, neither the caliphs nor their viziers or provincial governors made any effort to control or appropriate the sphere of law, which was largely customary and Quranic” (Wael B. Hallaq, An introduction to Islamic Law, Cambridge University Press, Cambridge 2009, pp. 39–40). Crone and Hinds seem to disagree with the aforementioned position, stating that the caliphs, in the field of adjudication, could be regarded as a source of holy law (Patricia Crone, Martin Hinds [1986], God’s Caliph. Religious Authority in the First Centuries of Islam, Cambridge University Press, Cambridge 2003, pp. 43–57). In this position, however, the conception of law implicitly reflects the Western idea, while the consideration of Hurvitz seems more convincing having regard to the specific context.

The views of Kelsen and Schmitt on this fundamental issue that have been mentioned above fall outside the aim of my work and won’t be analyzed in detail here. However, on Kelsen’s legal formalism it is possible to see Gustav Bergmann, Lewis Zerby, “The Formalism in Kelsen’s Pure Theory of Law”, in Ethics, vol. LV, n. 2, January 1945, pp. 110–130, as well as Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainments of Legal Rules, Oxford University Press, Oxford 2011, pp. 48–51. On Schmitt’s position on this matter, see Paul Hirst, “Carl Schmitt’s Decisionism”, in Telos, vol. VII, n. 72, July 1987, pp. 15–26, as well as Martin Loughlin, “Politonomy”, in The Oxford Handbook of Carl Schmitt, eds. Jens Meierhenrich, Oliver Simons, Oxford University Press, Oxford 2016, pp. 570–591. On the debate between Kelsen and Schmitt in the context of Weimar constitutionalism, see Lars Vinx, The Guardian of the Constitution. Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, Cambridge University Press, Cambridge 2015.

For an exhaustive reflection about form and substance of law, see Robert S. Summers, Form and Function in a Legal System. A General Study, Cambridge University Press, Cambridge 2006. As Summers suggests, the distinction between form and substance dates back to Aristotle and the ancient Greeks (ibid., pp. 134, 159 ff.), and can be thus considered as a Western legal conception, regardless of the various theories about it. About Summer’s position on the matter, see Philip Soper, “On the Relation between Form and Substance in Law”, in Ratio Juris, vol. XX, n. 1, March 2007, pp. 56–65.

Implicitly referring to the Western conception of law, Summers grasps the functional meaning of form in legal phenomena. According to the author, “form is highly important in practical terms. Without the requisite forms, legal phenomena could not even exist. We could not have legislatures, courts, statutory rules and other species of law, interpretive methodologies, sanctions and the like. Those phenomena consist of more than non-formal elements. Forms are required to define and organize these phenomena, non-formal elements and all, into functional wholes” (Robert S. Summers, “On Giving Legal Form its Due. A Study in Legal Theory”, in Proceedings of the 21st IVR World Congress, Lund (Sweden), August 12th–17th, 2003, part 2, Law and Practice, eds. Svein Eng, Franz Steiner Verlag, Stuttgart 2005, p. 118). The tacit premise of Summers, however, is that law is a product of human rationality and has therefore to be organized from a functional and practical perspective.

Summers, in his aforementioned monography, explicitly refers to the role of form in identifying legal phenomena both from an objective and from a subjective point of view. See Summers, Form and Function in a Legal System, cit., p. 134.

Cf. Gernot Biehler, Procedures in International Law, Springer, Berlin-Heidelberg 2008, pp. 61–62. It is worth noticing that, as in Summers, when analyzing the international legal system Biehler moves from the tacit premise of the validity of Western juridical and philosophical categories, such as the distinction between form and matter expressed by the Philosopher in Physics. Therefore, this view should be termed as a Western conception, which cannot be superimposed on other cultural contexts.

In the words of the Aquinas, “laws are imposed on others as rules and measures, as I have said. But rules and measures are imposed by being applied to those ruled and measured. And so laws, in order to oblige persons, as is proper to law, need to be applied to those who are to be ruled by the laws. But the promulgation leading them to knowledge achieves such application. And so promulgation is necessary for laws to be in force” (Thomas Aquinas, Summa Theologiae, I-II, q. 90, art. 4, trans. Treatise on Law, cit., p. 6).

Ibid., art. 4, resp. to obj. 1.

In literature, attention must be paid as for what is intended by Islamic procedural law. Usually, with this term authors refer to the Western-based legal procedures in force in the States of the Muslim world and not of a procedural aspect in Islamic legal tradition. Therefore, it is common to find articles and texts dealing with forms and procedures of courts enforcing sharīʿa or on sharīʿa-based family law in modern States, but it is unlikely to find literature on what can be properly termed as form and procedure of sharīʿa. This latter point is a consequence of what I will explain in this paragraph.

I use the word potentially because this is true in principle, although from a practical point of view, as evident, not all of the verses of the Qurʼān are eligible to be transposed in rules of conducts. Indeed, and having regard to their substantive content, a strict minority of verses of the Islamic holy book are inherent to legal matters, although every verse is perceived as vested with the highest authority being directly revealed by the divinity. On this, see Abdullah Saeed, Interpreting the Qurʼān. Towards a Contemporary Approach, Routledge, London-New York 2006, pp. 65–66.

With regard to fiqh and to its roots, it is important to notice that the process of derivation of sharīʿa is in no way to be regarded as constitutive of it. As it will be later shown, the human participation in the Islamic legal order regards essentially the act of deriving and deducing concrete provisions from sharīʿa: therefore, it is to be considered as a recognizing and declaratory activity, and by no means a legislating—thus constituting—act. This is a fundamental point because of its immediate consequence: no formal or procedural requirement is necessary for what is to be termed as a mere recognition, declaration, deduction of a norm that has already been laid down before the birth of man. I will examine in further detail the issue of fiqh and its roots in the next paragraph.

Legal procedures in enforcing sharīʿa-derived provisions are particularly evident in the field of criminal law, as observed by Mohamed Seli El-Awa, “Confession and other methods of evidence in Islamic procedural jurisprudence”, in Criminal Justice in Islam. Judicial Procedure in the Sharīʿa, eds. Muhammad Abdel Haleem, Adel Omar Sherif, Kate Daniels, I.B. Tauris, London-New York 2003, pp. 111–130.

Cf. Heinz Mohnhaupt, “The object of interpretation: legislation and competing normative sources of law in Europe during the 16th and 18th centuries”, in Interpretation of Law in the Age of Enlightenment. From the Rule of the King to the Rule of Law, eds. Yasutomo Morigiwa, Michael Stolleis, Jean-Louis Halperin, Springer, Heidelberg-London-New York 2011, pp. 88–89. On the authorship of law, it is to be noted that the “advocates of codification shared the conviction of the natural law lawyers – as they themselves also often were – that man was capable of formulating a legal system that was complete, consistent, clear and comprehensible to all” (Randall Lesaffer [2009], European Legal History. A Cultural and Political Perspective, trans. Jan Arriens, Cambridge University Press, Cambridge 2012, p. 453).

As Dahlén concisely observes, while “Islamic law possesses a normative and established structure, it nevertheless resists codification of any kind as a potential unfolding of the revealed sources” (Ashk P. Dahlén, Islamic Law, Epistemology and Modernity. Legal Philosophy in Contemporary Iran, Routledge, London-New York 2003, p. 51).

This is particularly true with reference to the historical process of Westernization of Islamic legal systems following European colonization, where codification has been adopted as a tool of juridical predominance aimed at containing the influence of the Islamic traditional ways of delivering justice and controlling the territory. On this, see Hallaq, Can Shariʿa Be Restored?, cit., pp. 22–23.

The idea of taqlīd refers to the act of accepting rules of fiqh “based on understanding texts as interpreted by early members of a chosen guild” and “accepting the view of a recognized leading jurist without scriptural proof of its correctness” (Russell Powell, Shariʿa in the Secular State. Evolving Meanings of Islamic Jurisprudence in Turkey, Routledge, London-New York 2016, p. 27). From this point of view, it can be considered as the “opposite of ijtihād” (Joseph Schacht [1955], “The Schools of Law and Later Developments of Jurisprudence”, in Law in the Middle East, vol. I, cit., p. 74). As evident, the tension between taqlīd and ijtihād is closely related to the asserted closure of the gates of ijtihād and to the conditions at which it is possible to propose new legal interpretations.

For the reforms and the Edicts, see Coşkun Çakır, “Tanzimat” (voice), in Encyclopedia of the Ottoman Empire, eds. Gábor Ágoston, Bruce Masters, Facts on File, New York 2009, pp. 553–555; in the same volume, Cemil Aydin, “Reform” (voice), pp. 484–486. Cf. Stanford J. Shaw, Ezel Kural Shaw [1977], History of the Ottoman Empire and Modern Turkey, vol. II, Reform, Revolution and Republic. The Rise of Modern Turkey, 1808–1975, Cambridge University Press, Cambridge 2002, pp. 55 ff.

As Stanford and Ezel Shaw observe, during “the nineteenth century the Ottoman empire witnessed a sustained effort of reform that saw the long-preserved and honored institutions of the classical Ottoman state replaced by new ones, inspired by an increasing knowledge of European thought, society, and government and modified to satisfy Ottoman needs and conditions. In the process the scope of government was extended far beyond the limits imposed by the traditional Ottoman way into every aspect of life, overwhelming the autonomous religious, economic, and social groups that had survived for so long as the substrata of Ottoman society. A new, modern, westernized ruling bureaucracy replaced the old Ruling Class, extended its power throughout the empire, and created a highly complex system of government that ruled with an autocracy unmatched in traditional times” (S. Shaw, E. Shaw, History of the Ottoman Empire and Modern Turkey, cit., p. vii). With regard to the process of Westernization of the Ottoman empire, see Selcuk Aksin Somel, “Westernization” (voice), in Historical Dictionary of the Ottoman Empire, The Scarecrow Press, Lanham-Oxford 2003, pp. 322–323. Cf. the already mentioned work of An-Na’im, Islam and the Secular State. cit., p. 191–196.

Regarding Ottoman codification, which according to Rubin leads to the so-called Ottoman legalism, see Avi Rubin, Ottoman Rule of Law and the Modern Political Trial. The Yildiz Case, Syracuse University Press, Syracuse 2018, pp. 23–58. Mallat observes that the process of legal codification “was also tied closely to the phenomenon of ‘reception’ of European laws. It was a process directly associated with colonization, and the Middle East was no different from other parts of the non-Western world in this respect” (Mallat, Introduction to Middle Eastern Law, cit., p. 121).

With the progressive establishment of legal schools, the corpus of fiqh grew considerably, and its organization in collections and compilations was something acquired to the traditions of the madhāhib. However, the essential difference between the concept of fiqh and the Western idea of law prevents us from equalizing fiqh compilations and Western legal codification. Therefore, it is not possible to agree on the definition of fiqh as “codification of sharīʿa” (as in Ahmad, The Nature of Islamic Political Theory, cit., pp. xv, 183, 192). Regarding the activity of collecting fiqh, see Muhammad Amanullah, Habibur Rahman, “The Origin and Evolution of Fiqh Codification. A Preliminary Analysis”, in Journal of Islam in Asia, vol. XIII, n. 1, June 2016, pp. 194–219. This last article offers a historical survey on the process of systematic organization of fiqh compilations and collections. However, it is not possible to agree with the authors when stating that codification “simply means the process of forming a legal code” (ibid., p. 192): codification, on the contrary, is not to be regarded as a neutral process but a way of understanding legal systematization from a precise philosophical and juridical perspective, which is not superimposable to the one typical of fiqh.

For the distinction between origin and source, and for the concept of source as a juridical category of comprehension and interpretation, see Giovanni Bombelli, “Momenti di una normatività giuridica complessa. Da Esiodo ai presocratici”, in Il Diritto tra Testo e Immagine, eds. Carla Faralli, Valerio Gigliotti, Paolo Heritier, M. Paola Mittica, Mimesis, Milan-Udine 2014, pp. 125–128.

“His enim explicatis, fons legum et iuris inueniri potest”. (“Once we have explained these things, we can find the source of laws and of justice”) Cicero, De Legibus, I, 16 (English excerpt from On the Commonwealth and On the Laws, cit., p. 110).

Referring to the XII Tables, Livy stated: “Eas leges habiturum populum Romanum quas consensus omnium non iussisse latas magis quam tulisse videri posset. Cum ad rumores hominum de unoquoque legum capite editos satis correctae viderentur, centuriatis comitiis decem tabularum leges perlatae sunt, qui nunc quoque, in hoc immenso aliarum super alias acervatarum legum cumulo, fons omnis publici privatique est iuris” (“The Roman people would have the kind of laws that their unanimity might seem not only to have passed but also to have proposed. When the laws seemed to have been sufficiently amended in accordance with the comments made about each section, the Laws of the Ten Tables were passed in the Comitia Centuriata. Even now, amid the great pile of statutes heaped one on top of another, they are the fountainhead of all public and private law”) (Livy [27 BCE-14 AD], Ab Urbe Condita, III, 34, English excerpt from The History of Rome, books 1–5, trans. Valerie M. Warrior, Hackett Publishing, Indianapolis-Cambridge 2006, pp. 204–205).

It is difficult to provide a univocal definition of source of law. In this book, I will focus on the eligibility of the source to the material production of legal provisions. From this perspective, various authors can be recalled to stress this peculiar and fundamental conception. According to Boer, for instance, a source of law “is anything that can be conceived of as the originator of legal norms” (Alexander Boer, Legal Theory, Sources of Law and the Semantic Web, Ios Press, Amsterdam 2009, p. 80). According to Guastini, in “a material sense every act that produces norms constitutes a source of law: whatever be its name, its process of formation, and the organ from which it descends” (Riccardo Guastini, Le fonti del diritto. Fondamenti teorici, Giuffrè, Milan 2010, p. 46). The most interesting definition is however provided by Kelsen, who underlines the ties between the idea of source and the creation of law. According to the jurist, the metaphor “is used not only to designate the different methods of creating law but also to characterize the reason for the validity of law, and especially the ultimate reason. But, in a wider sense, every legal norm is a source of that other norm the creation of which it regulates. It is a characteristic element of law in general, and hence also of international law, that it regulates its own creation” (Hans Kelsen [1952], Principles of International Law, The Lawbook Exchange, Clark 2003, p. 303).

In literature, the translation of Islamic jurisprudence is common and recurring. However, in this book I will maintain the Arabic word fiqh, in order to preserve the original meaning without imposing on it a fundamentally Western concept such as jurisprudence, which implies a unique and own way of theorizing the role of man and reason in the process of lawmaking.

For instance, the Ḥanbalī school generally looks cautiously to qiyas, because of its excessively subjective character, and restricts the use of ijmāʿ, admitting the normative dimension pf the consensus expressed by Muḥammad’s companions (ṣaḥābah), while rejecting the one referred to the consensus expressed by later generations of Muslims.

I already mentioned the edition translated and edited by Khadduri. For a commentary, see Joseph E. Lowry, Early Islamic Legal Theory. The Risāla of Muhammad ibn Idrīs al-Shāfiʿī, eds. Ruud Peters, Kevin Reinhart, Brill, Leiden-Boston 2007. The importance of the Risāla, to be considered as a milestone in the evolution of the Islamic legal theory and methodology, is highlighted by Khadduri himself: “During that time Islam expanded rapidly and absorbed new elements of culture and tradition. As a result, the Muslim world abounded in legal doctrines, the advocates of each vying for supremacy over the others. It was Shāfiʿī who provided in the ninth century of the Christian era a systematic legal method by which to synthesize the various legal doctrines into a coherent system” (Khadduri, Preface to al-Risāla, cit., p. vi).

Without questioning the academic value of relevant studies, it is nevertheless necessary to point out the improper use of the terminology, which might lead to miscomprehension of some structural characteristics of the Islamic legal view. For instance, some authors use the definition “sources of Islamic law”. In this paragraph, I will show the reasons why this terminological choice is not sharable. Correctly, Mallat speaks about “so-called ‘sources’ of Islamic law” (Mallat, Introduction to Middle Eastern Law, cit., p. 108). For miscellaneous examples of the use of this terminology, see Daniel W. Brown, A New Introduction to Islam, Wiley-Blackwell, Chichester 2009, p. 158; Shahid Ashraf, Judicial culture in Islam, Anmol Publications, New Delhi 2006, p. 55; Mohammad Hashim Kamali, “Law and Society. The Interplay of Revelation and Reason in the Shariah”, in The Oxford History of Islam, ed. John L. Esposito, Oxford University Press, Oxford 1999, p. 107; John Burton, The Sources of Islamic Law. Islamic Theories of Abrogation, Edinburgh University Press, Edinburgh 1990; Nighat Amin, Some Salient Features of the Islamic Law and Constitution, Pakistan Institute of Arts and Design, Karachi 1970, p. 5.

Despite the objective difficulty in defining fiqh, whose essential elements have already been mentioned in my introduction, it is necessary to recall at least two of them, which underline its essential character. A concise definition that is worth remembering is provided by Kamali, according to whom fiqh “is defined as knowledge of the practical rules of the Sharīʿa, which are derived from detailed evidence in the sources” (Mohammad Hashin Kamali, “The Sharīʿa: Law as the Way of God”, in Voices of Islam, vol. I, Voices of Tradition, ed. Vincent J. Cornell, Praeger, Westport-London 2007, p. 150). Again, from this perspective, it can be termed as “a system that forms the basis for normative interpretation of the revelation, the application of its principles and commands to the field of human acts” (Muhammad-Basheer A. Ismail, Islamic Law and Transnational Diplomatic Law. A Quest for Complementarity in Divergent Legal Theories, Palgrave Macmillan, New York-Basingstoke 2016, p. 51).

By this point, it is necessary to highlight the relationship between these two concepts: “From an historical perspective the relationship between shariah and fiqh can be summarized by saying that the shariah developed as the paradigm or model of the Islamic way of life, whereas fiqh, the application of the shariah to specific cases, developed as the paradigm of Islamic reasoning. In these two concepts, one normative and ideal and the other hermeneutical and practical, a true complementarity between theory and practice is achieved” (Vincent J. Cornell, “Fruit of the Three of Knowledge. The relationship between faith and practice in Islam”, in The Oxford History of Islam, cit., p. 91).

Ibid.

As already mentioned, the concrete provisions derived by means of the roots may change in dependence of time and place, of the legal school, and of the comprehension of the jurist. However, while the understanding of Allāh’s sharīʿa can change, sharīʿa itself cannot. Therefore, every change in fiqh is not to be considered as a new law or a new rule but as a new understanding of the same, immutable sharīʿa. To sum up, “jurists consider the shariʿa as immutable” but “they acknowledge the diverse body of fiqh opinions as the product of human engagement with the textual sources of authority in Islam. In this dichotomy, God is infallible, but human effort to know God’s Will with any degree of certainty is imperfect and fallible” (Tamir Moustafa, Constituting Religion. Islam, Liberal Rights, and the Malaysian State, Cambridge University Press, Cambridge 2018, p. 35). Cf. Faisal Kutty, “Blasphemy and apostasy laws in the Muslim world: a critical analysis”, in Research Handbook on Islamic Law and Society, ed. Nadirsyah Hosen, Edward Elgar Publishing, Cheltenham-Northampton 2018, pp. 244.245; Louay Fatoohi, Abrogation in the Qurʼan and Islamic Law. A Critical Study of the Concept of “Naskh” and its Impact, Routledge, London-New York 2013, p. 236.

As Bhala points out, the etymology of the word fiqh is eloquent as for its nature of knowledge, comprehension, understanding. According to the author, the term “literally means ‘understanding’. It is derived from the verb ‘faqaha’, which means ‘to understand’. Used in the context of the Sharīʿa, fiqh refers to the totality of human comprehension of the perfect, immutable, and Divine law as revealed in the Qurʼān and Sunnah, and as explained, elaborated, and interpreted by Islamic legal scholars” (Raj Bhala, Understanding Islamic Law. Sharīʿa, Matthew Bender & Co., Newark 2011, p. 289).

The terminology in use in certain European countries is eloquent in indicating the productive and dynamic nature of the idea of source of law, such as in the Italian case, where the terminology fonte di produzione has been acquired to the juridical lexicon. In Spanish, the same concept is expressed through the equivalent periphrasis fuentes de producciòn, and in German through Rechtsgeltungsquellen.

Once again, and as already explained, Kelsen argues that law regulates its own creation. See Kelsen, Principles of International Law, cit., p. 303.

For an interesting reflection about the self-sufficiency and self-referentiality of law in the Western view, it is possible to analyze Teubner’s theory of autopoietic law, which explains in detail the aforementioned characters. See Gunther Teubner [1987], “Introduction to Autopoietic Law”, in Autopoietic Law. A New Approach to Law and Society, ed. Gunther Teubner, De Gruyter, Berlin-New York 1988, pp. 1–11. Also, on the same issue cf. Niklas Luhmann, “The Self-Reproduction of Law and its Limits”, in Dilemmas of Law in the Welfare State, ed. Gunther Teubner, De Gruyter, Berlin-New York 1988, pp. 111–127.