Academic journal article The Journal of the American Oriental Society

The First Islamic Legal Theory: Ibn Al-Muqaffa' on Interpretation, Authority, and the Structure of the Law

Academic journal article The Journal of the American Oriental Society

The First Islamic Legal Theory: Ibn Al-Muqaffa' on Interpretation, Authority, and the Structure of the Law

Article excerpt

I. 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. …

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