Abdal Hakim Murad - The Cambridge Companion to Islamic Theology

246 Umar F. Abd-Allah
During the formative period of Islamic law, ra’y was a broad,
speculative manner of reasoning associated with ijtihad. A number of
pragmatic instruments of jurisprudence developed from it, such as
analogy (qiyas), equitable discretion (istih san), preclusion (sadd
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al-dhara’i‘), and general necessity (al–mas alih al-mursala). 35
_ _
Shafi‘ı’s well-known rejection of legal sources such as istih san, _
sadd-al-dhara’i‘ and al-mas alih al-mursala, and his emphasis on
_ _
explicit texts, including the controversial ‘‘solitary hadith’’ (ah adıth _
al-ah ad), offer, indeed, an interesting parallel to the voluntarism
_
underlying the Ash‘arite doctrines of free will and the nature of good and
evil. 36 But none of his positions was taken up by the other Sunnı
schools: even H anbalism, for all its emphasis on textual deduction,
_
continued to subscribe in limited fashion to Malikı andH anafı instruments
of ra’y. Although arguably the most formalistic of the four Sunnı
_
schools, the Shafi‘ıs espoused a textually based doctrine of specific
public interest (istis lah ) (as opposed to the non-textual mas alih mursala
_ _ _ _
of the Malikıs). 37 Like other Sunnıs, the Shafi‘ıs elaborated much of
their positive law in a pragmatic spirit. In the course of Islamic intellectual
history, Shafi‘ı jurists proved themselves to be pioneers in the
genre of legal maxims, arguably the epitome of Islamic legal realism. 38
The rationalism implicit in ra’y and its later derivatives must not be
confused with the metaphysical rationalism of classical Islamic theology.
As Abrahamov observes, ‘‘rationality turns to rationalism when
reason is prior to revelation’’. 39 This was not the case with the rationality
of early ra’y or its ancillaries in the Malikı and H anafı schools.
_
Their adamant adherence to pragmatic realism was, to take an expression
from Abrahamov, a type of ‘‘informal dynamism’’. 40 It derived its
strength from a non-formalistic legal induction and pragmatic intuition
based on a general understanding of the law and its well-established
precepts and legal rationales. 41
The historical relationship between Islamic legal theory and positive
law has yet to be carefully studied. Sherman Jackson asserts that classical
legal theory had little to do with positive law: ‘‘In the end, however, legal
theory remains standing as a monumental but fairly empty ruin whose
authority can only be sustained through a reliance upon a never-ending
series of ‘ad-hoc adjustments’ and ‘makeshift apologies’.’’ 42 The theologically
informed speculations of Islamic legal theory had little effect on
the positive law of the schools, even among jurists who readily subscribed
to rationalistic theology and its application to legal theory. Indeed, the
influence of legal theory on positive law was so limited that some insist
that it is irrelevant to the study of the law’s substantive content. 43
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