The idea of codification, in its modern sense, was an essential demand of the pioneers of the Arab Renaissance. Rifa'a al-Tahtawi called for it in Manahij al-Albab al-Misriyya, Khayr al-Din al-Tunisi advocated it in Aqwam al-Masalik, and Abd al-Rahman al-Kawakibi discussed it in Umm al-Qura. The concept of codification, its components, and objectives also occupied a significant space within the school of Imam Muhammad Abduh. He outlined its features in his famous report on reforming the Sharia courts in the late nineteenth century, and his students took up this cause both theoretically and practically. Among the most prominent of these were Muhammad Mustafa al-Maraghi, Taha Habib, Ahmad Ibrahim, and Faraj al-Sanhouri.
Furthermore, several French professors at the Royal School of Law in Egypt encouraged codification, most notably Édouard Lambert, who managed the school for several years. The extensive attention given to codifying our Islamic jurisprudence affirms two key points:
- Islamic Sharia is a living and applicable system in all times and places due to its flexibility, dynamism, and adaptability. It allows for deriving rulings for new life developments based on the fixed principles, general rules, and objectives of Islamic Sharia. This is the essence of dynamic, reality-based jurisprudence.
- Islamic Sharia is the source of our legislative independence—an independence that is essential for preserving the identity of the Ummah and its unique civilization. No nation can claim true sovereignty while replacing its timeless Sharia with imported laws.
The Islamic jurisprudential mind will not escape its current crisis except through three lifeboats: complete adherence to definitive texts, increasing reliance on Ijtihad (independent legal reasoning), and a conscious respect for reality.
Historical Roots of Codification in Islamic Sharia
The term “codification” has been ambiguous since its emergence, leading to varied interpretations among scholars. Some jurists and legal experts trace its origins to the writings of Abdullah Ibn al-Muqaffa', as well as to Caliph Harun al-Rashid's attempt to make Imam Malik’s Muwatta the obligatory legal reference. The distinguished scholar Muhammad Abu Zahra, however, traces codification back to the era of the Rightly Guided Caliphs, citing the legal letter sent by Caliph Umar ibn al-Khattab to his judge, Abu Musa al-Ash'ari, as evidence.
In my view, simply compiling the dominant opinions within a particular school of thought for use by judges, jurists, and legal scholars—even if arranged into articles—does not constitute codification. Codification is not merely about classification, numbering, or summarization. It is a science, a formulation, and a legal obligation.
Codification, as a science, requires scholars to study Islamic jurisprudence holistically or within the dominant legal school of a particular country. In this process, the legal mind seeks the most appropriate rulings for safeguarding the interests of society through a methodology based on the strength of evidence and the weight of argument. This process does not ignore contemporary realities, and it necessitates the involvement of specialists beyond jurists, including reputable scholars in sociology, politics, and economics. This is because legislative discourse extends across all these fields.
In codification, legal material is classified according to the branches of law. It is also a process of formulation, as the ultimate goal of Islamic legislation—like any sound legal system—is to protect key societal interests and regulate life’s interactions.
Every legislative text, regardless of its source, is fundamentally a discourse directed at rational beings, containing two essential components. The first component commands and prohibits, representing the ruling aspect of the legislative rule. The second component regulates and holds accountable, constituting the punitive aspect of the same rule. Legislative discourse, as an expression of an organized society or the system within a society, must be framed in a linguistic form that allows the addressed individuals to read or hear it and comprehend what is required of them and from them without excess or deficiency.
Drafting in this manner is an art governed by precise rules and methodologies, for the book of legislation is the world of human affairs in its moral, economic, and political dimensions. Legislative discourse consists of finite texts that govern infinite realities. The formulation of legislative texts is the principal tool for ensuring their proper understanding and interpretation, and consequently, their effective implementation and application.
Codification also entails legal obligation because a legislative rule is incomplete without an enforcement mechanism. Compliance with the law cannot rely solely on voluntary adherence; it requires enforcement through judicial mechanisms. This obligation functions in both ascending and descending directions:
- Ascending Obligation: The legislative authority is bound by two fundamental conditions:
- It must not alter definitive Sharia rulings or introduce provisions that Allah has not authorized, for there is no obedience to a created being in disobedience to the Creator.
- It must not contradict the fundamental and essential interests of the community, as the authority of the ruler is conditioned upon serving the public good.
- Descending Obligation: The legal rule is binding on all who fall under its jurisdiction, regardless of differing jurisprudential opinions or school-based interpretations. Once the ruler selects a ruling, it eliminates the dispute.
Defining Codification in Islamic Sharia
Codification, therefore, refers to the selection of Islamic legal rulings in matters of transactions for a specific place and time, organizing them into legal branches, numbering them as articles, and issuing them as a formal legislative text. This text must be adhered to by judges and used as a reference by litigants.
In codification based on Islamic legal foundations, the drafting process does not operate in a vacuum but is constrained by a decisive collective and individual belief system, falling into two categories:
- Permanent rulings derived from texts that are definitive in both transmission and meaning. The authority of legislation with regard to these rulings does not extend to the domain of command and prohibition, nor to the domain of retribution and punishment. Rather, its role is confined to formulation that does not alter the ruling and classification that distinguishes between civil, commercial, and criminal law, among others. In fact, legislative authority often adheres not only to the essence of the ruling but also to its exact wording and terminology as found in the texts of the Quran and the Sunnah.
The definitiveness of these texts does not preclude procedural flexibility, allowing for varying degrees of litigation and accommodating practical regulations that ensure the application of the abstract text to specific cases when they correspond. This is a meticulous process that begins with describing reality and ends with framing it within the appropriate text so that the judge may issue a ruling accordingly. It is a process in which one must not conflate the certainty of the judge—which is, by necessity, relative—with the absoluteness of the permanent text, which is, by its nature, definitive.
- Ijtihadi Rulings (independent legal reasoning) that are subject to change. These may be selections from the rich legacy of Muslim jurisprudence across different eras or entirely new rulings deduced from primary sources. Such a process requires great caution and collective scholarly effort, as it is a domain where misinterpretations are possible. However, all juristic interpretations must remain within the framework of Islamic principles, primary sources, overall objectives, and its regulating rules for the jurist’s mind.
The Distinction Between Legal Renewal and Ijtihad
Here, it is important to highlight the distinction between renewal, which occurs within systems and structures and involves specialists from various fields, and ijtihad, which is the exertion of effort to derive a presumptive practical ruling. Ijtihad can only be exercised by those qualified for it, ensuring its proper application. It is the sole responsibility of the jurist and the ruler, who must also engage in social consultation, as society plays a role in identifying interests and accurately describing realities—both essential for the jurist in deduction and for the ruler in decision-making and enforcement. Oversight in this regard is twofold: a moral oversight that qualifies them to safeguard the religion and a communal oversight that ensures they govern worldly affairs justly.
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Source: This paper was presented at the Symposium on the Development of Islamic Jurisprudence, held in Muscat, Oman, from April 5–8, 2008.