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Authority and Legitimation

By:
Knut S. Vikør
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Authority and Legitimation

The purpose of a law is to make members of a society follow an established set of guidelines for behavior. This can only happen if the law is based on an authority that is linked in one way or another to a power relationship between those who define and enforce the law and those who are to follow it. While an authority based on pure coercion is possible, most established societies seek to legitimize the law through norms acceptable to the members of society.

The mechanism for such legitimate legal authority is most often the state, and the offices of law are normally seen as state apparatuses. The association of the coercive force of law with the state was perhaps best expressed by Weber’s observation that the state is the body that has a monopoly on the legitimate use of force. The construct of Islamic law can in many ways be seen as an exception to this rule, as parts of the legal field are delinked from the state and rest on different sources of authority and legitimation: a religious establishment independent from state power.

This led to two different types of challenges in terms of establishing the authority of the law. One concerns the formulation of a specific set of rules and guidelines as “the law” in opposition and in contrast to alternative potential rules. The second concerns the application of this authorized law—how to make the members of society abide by the agreed-upon rules. In societies where the formulation and application of the law both emanate from state power, these are purely political questions relating to how that state power is set up; it is the state or its ruler that authorizes the formulation of the law and also guarantees its application through its repressive apparatus.

In the classical Islamic state, this was made more complex for two reasons. One was that the religious scholars were successful in preventing the caliph or any other ruler from having a legitimate influence on the formulation of law writ large. The other was that these scholars, at least in the majority Sunni Islam, did not establish any alternative hierarchical structure that could make a decisive choice between competing legal views, be it in a collegiate form or through any single “pope” or patriarch. The question of “who can decide what is the correct legal view” was therefore left open.

The answer to this question came, in two different ways, to be based in concepts of competence and knowledge. The legitimacy to work on formulating legal rules (aḥkām, sing. ḥukm) came from the scholars’ knowledge of the sources for the law (which came to be the texts of divine revelation; the Qurʾān and Sunnah) and competence in the acknowledged methodologies for deriving rules from these texts. This was known as ijtihād (here roughly, “the efforts of legal formulation,” the person performing it is a mujtahid). This concept was contrasted with the obligation of lower-level scholars and laymen without such competence to follow, or “imitate,” the decisions reached by the mujtahid. The acceptance of another’s authority in law is known as taqlīd.

From Individual to Consensus

The rules produced by ijtihād could gain legitimacy when the competence of the mujtahid and the authority of the revealed sources he used were recognized. However, with the multiplication of scholars performing such ijtihād, there quickly arose many different and opposing interpretations of various legal issues developed by rivaling mujtahids. At a theoretical level, to give all of these an equal status would make it impossible to transform the scholarly conclusions into social practices. If two parties to a conflict each could turn up in court with an equally valid ijtihād supporting their respective claims, then it could not work as law. So, a method of selecting the “more correct” ijtihād over the “less correct” was necessary.

As there was no single, formal body either outside or inside the scholarly community to make such a selection, the authority to make such selections was devolved to the scholarly community at large (epitomized in the ḥadīth “The religious scholars [in common] are the heirs of the prophets,” (Abū Dāwūd, ʿIlm, 1) and thus heirs to Muḥammad’s legal authority). Instead of one leader, the legitimate authority of the scholarly community was vested in the consensus, ijmāʿ, of the community: what the scholars agreed to be the correct interpretation was what society must follow. The legitimacy of the individual mujtahid was transferred to the larger community of scholars, either through the agreement of the actual mujtahids among them or the application of properly founded taqlīd by the others.

Although the principle of legitimacy through ijmāʿ was generally accepted by the late second/eighth century, this did not solve all problems. A total consensus among all scholars, living or dead, could only be achieved if there was no disagreement in the first place, and was thus of little use in settling conflicting ijtihāds, except in retrospect: if there had been established unquestioned ijmāʿ on an issue at an earlier stage (a previous generation), then that issue was closed to further discussion. But such unquestioned consensuses were often difficult to demonstrate.

The community therefore came to be divided into a number of groups—madhhabs, or “schools of law”—and the ijmāʿ authority for a positive rule was further devolved from the community at large to each madhhab. Once a rule had achieved consensus within a school, it was authorized for those who followed that madhhab, but had no relevance for others. There was thus not one legal authority, but (ultimately) four in Sunni Islam and more for the Shia. The distribution between these legal systems was in principle based on each scholar’s personal choice of madhhab and not on political boundaries, even though a geographical distribution of madhhabs did appear in the course of time.

The Formation of Madhhab Authority

The history of this development is heavily contested, not least because the legitimacy of a school’s authority is precisely linked to its history. To challenge the established chronology or dispute the process of formation often means to challenge the authority of the rules within the school for its adherents. A universally accepted description of the development therefore cannot be given. However, it is clear that the legitimacy of a school’s authority came to be linked to the personal status of the founder, as can be seen with the four established Sunni schools, those of Abū Ḥanīfa (d. 767), Mālik b. Anas (d. 795), Muḥammad b. Idrīs al-Shāfiʿī (d. 820), and Aḥmad b. Ḥanbal (d. 855). The accepted history within each school was that the school founder gained acceptance in his own time as the most knowledgeable both in fiqh and in ḥadīth in his city, and that groups of ʿulamāʾ came to gather around him, study with him, and transmit his views to succeeding generations.

Some historians argue that the consecration of these four school founders (the four imāms) as absolute authorities was a more protracted process. It does seem that groups of scholars started to form around particular sets of viewpoints in law at least from the middle of the eighth century onwards. These groups were probably fairly fluid and may have connected scholars from different regions, but often with a stronger base in one particular city, such as Kufa or Medina. They were not, however, apparently linked to any particular person or name. If contemporaries did refer to such groupings, they would call them “the people of Kufa” (even though no one group may have dominated in that city), or “the people of such and such a view.”

Thus, when arguing the legitimacy of any particular rule over competing alternatives, these early scholars referred to the authority of “practice.” Thus, in a debate a proponent would argue that such and such is the way “we” (the pious community) do it. When there were disagreements between scholars and scholarly groups, however, such legitimacy could easily be challenged by opponents of the rule: Why should we believe that “your” practice is better than how we have been doing it? This competition between different viewpoints, which was thus a competition over legitimacy, seems to have been the motor that drove the development of scholarly organization in the field of law; “established practice” in a Muslim community was not in itself sufficient to counter arguments from those who disagreed.

A possible fixed point of reference in this competition was the shared basis in Revelation. This could be found by prioritizing the practice of Medina (in what developed into the Mālikī school) over other cities, as it represented the continuity from the exemplary period when the revelation was alive. Later, in the cumulative process of finding better and better sources for the authority of one’s own view, it came to focus on the Prophet himself and his Sunnah. At this point, then—which may have been reached sometime in the ninth century—the “practice” of the community came to be replaced by or strengthened with references to ḥadīth.

But clearly, many and competing ijtihāds could be supported by ḥadīths, and the evaluation of individual ḥadīths was itself an area of contestation between the scholars. So, in the continuing competition over legitimacy, some authority had to be found that could establish that one particular interpretation and rule represented the correct way of understanding the Prophetic example. In this search, legitimation became personalized and linked to the perceived authority of scholarly predecessors.

It follows that in the ensuing discussions, where the preference of one school’s view over another was linked to the authority of the scholar who was deemed to have pronounced it, it was beneficial to emphasize and elevate the authority of that scholar as much as possible. This led to a cumulative concentration on fewer scholars, and eventually on a single early scholar in each madhhab. Their perceived standing in their own time became ever more exalted. They were, as has been expressed, torn away from their own chronology as students and colleagues in a timeline, to be presented as singular unassailable paragons of knowledge and understanding (Hallaq, 2001, p. 25). This had the further consequence, in addition to supporting the madhhab’s view against competing madhhabs, of providing a fixed framework for authority within each madhhab. As the originally loose groups coalesced over time into more structured and institutionalized systems formed around adherents of the founder’s legal views, any acceptable legal rule had to be anchored in one way or another in the founder’s teachings.

These imāms thus became the authorities that provided legitimacy within the school, and over time their status reached such a level that some scholars claimed the four imāms had received their authorization directly from the Prophet, having consulted with him in visions. Thus, later generations could not possibly challenge a rule that had been enunciated by the school’s founder. In contrast, reformists (especially after the eighteenth century) who challenged the absolute authority of established ijmāʿ within the schools, spread counter stories of how each of the four imāms had rejected this and said, “I may make mistakes; if you find something I said that contradicts a ḥadīth, then leave what I have said and follow the ḥadīth”—that is, treat me as just another scholar like yourself (Vikør, 2006, “Shaykh as Mujtahid”, 370). For these latter-day reformists, then, legitimacy of the law in the authority of the four imāms was misplaced; the authority could only be in the actual revelation itself; and each competent scholar could only legitimize his ijtihād by referring directly to Qurʾān and Sunnah.

The Legitimation of the Repressive Apparatus

The madhhab system thus provided an authoritative framework for developing the law. But it did not have the physical power to enforce the application of it. This could only be provided by the Islamic state, having at its head a just and pious ruler, be he caliph, sultan, or amir. So, in the ideal model, the scholars formulated the law and the sultan applied it. The meeting point for the two was the Sharīʿah court, presided over by the qāḍī. The judge had a dual source of authority and legitimacy: as a scholar knowing the law, and as an appointee of the sultan with the state’s repressive apparatus (police, prisons etc.) at his side. These two aspects could evidently come into conflict, but also provided the qāḍī with the opportunity to play one against the other, or they could be used against him: the sultan could at any time remove a qāḍī and deprive him of his livelihood, but the ruler also needed the religious legitimacy of the qāḍī and other scholars. If more than one madhhab was present in his territory, he could also play on the differences and rivalries between them to further the decisions he wanted. The qāḍī could, on the other hand, strengthen his scholarly legitimacy by supporting himself on independent (or semi-independent) muftīs (jurists offering expert opinions), but also play on his position with the state to counter rivals in the scholarly community.

In the historical development of the court, it is clear that there was always a competition between these two sources of legitimate authority. The scholars were torn between an ideal of remaining aloof from the worldly rulers, whose practices were almost by definition categorized by the pious scholars as ẓulm, oppression, and society’s need for a legitimate judiciary.

On the other hand, the rulers could not rely on the scholars and the Sharīʿah courts alone in legal practice. Thus, they erected parallel courts or councils with the power to sanction unacceptable behavior, with names such as maẓālim, majlis, shurṭa, and city courts of various kinds. In these, the ruler had greater powers than the qāḍī had in the Sharīʿah courts and could settle matters that the Sharīʿah’s strict rules of procedure were unable to touch. The authority was thus here clearly drawn from the political strength of the ruler. But the legitimacy of these courts was still drawn from the Sharīʿah and the revelation. Thus, the lines between authority and legitimacy were more tenuous here than in the Sharīʿah courts proper. The maẓālim courts were in theory supposed to apply God’s law as it was expressed in the Sharīʿah, but they did so in such cases where the limitations of our imperfect world did not allow the actual Sharīʿah court to do its job, such as when the application of the formal Sharīʿah rule would cause a greater harm than it prevented.

The ruler thus reinforced the legitimation of his own courts by drawing elements from the Sharīʿah system into it, having qāḍīs or muftīs attend his sessions, listening to their advice, or asking them to approve of his decision at least in the more important cases. Thus, the boundaries between Sharīʿah court and maẓālim court were far from watertight, but the authority that each was based on was still clearly distinct. The Ottoman introduction of qānūn laws and integration of the office of muftī under the state in the form of the shaykh al-islām only continued this linkage of state authority with religious legitimacy, but again increasingly favoring the state’s preponderance over the independent scholars, at least in the central regions of the empire.

Modernity and Sharīʿah Authority

With the coming of the modern period with colonialism and Western influence, the balance between religious legal authority and that of the state began to shift even more decisively in favor of the state. New laws were implemented that made no reference to the Sharīʿah but were inspired or copied from European laws. Even in the field where Sharīʿah-based rules remained dominant, laws of family and personal status, most Muslim countries codified these in the pattern of European law.

This led, again, to increased separation between authority and legitimacy. Codified family laws found their clear authority in the political power of the state; they were formulated and implemented by state organs, whether elected, appointed, or dictatorial. The choice of which interpretation or possible ijtihād was to be selected for positive law was no longer left to religious scholars or their ijmāʿ. The classical problem that no single authority existed to make such choices had disappeared: each nation-state was now such a single authority and made the choice independently for each country.

But the states still sought at least some partial legitimation for the laws in the Sharīʿah, just as the medieval sultans’ maẓālim courts had done. This was done in different ways in each country. At the most elementary level, a constitution or basic law could say that “the laws of the country are based on the principles of the Sharīʿah,” or “cannot contradict” such principles, or similar constructions.

The strengthening of state authority can perhaps most easily be seen in the modernization of family laws that took place in most Muslim countries in the twentieth century. While many of these appear to have adapted to normative changes, in particular improving the legal status of women, their effect is almost always to move areas of personal status from the private arena to the public, requiring, for example, that a ṭalāq divorce, originally a private matter between husband and wife, must be registered in court and often also justified to the judge, with the court deciding the important economic consequences of the ṭalāq. Thus, the state and court increased its authority at the expense of the private application of the fixed rules of the madhhab-based Sharīʿah (rules that were, admittedly, often ignored in the social practice in premodern times).

At the turn of the millennium, then, there are still two sources for legitimation of laws in Muslim countries: one inferred from the legitimacy of the state as an expression of popular sovereignty, and one inferred from the laws’ expression of moral imperatives of the Sharīʿah. In most countries, the possible contestation between these two sources of legitimation is most pronounced in the area of family law, where the legal arena is perhaps most in contact with every individual’s personal sense of morality, but it may also stretch to other areas of law.

This contestation of legitimacy is played out within an acceptance of state authority over the law. Thus, most Islamists who argue for a “return to” or “reintroduction of” their conception of Islamic law do so in the framework of a codified state law, where their Islamized rules are also not only imposed by the Islamic state’s repressive apparatus but also defined by the revolutionary state’s organs; the state becomes the collective mujtahid, which can thus dispose of established ijmāʿ-based rules that are not to the revolutionaries’ likings.

On the other hand, individual Muslims (especially in the West) are beginning to make their own normative readings of the religious sources, making their personal or collective ijtihāds that may challenge both the ijmāʿ of the formalized scholars and the political fiqh of the revolutionaries. This may become a new source for religious legitimacy, which may find its expression through conceptions of popular sovereignty, that is, in the political field.

The relation between authority and legitimation has thus always been contested in Islamic history, both within the religious community and in relation to state authorities. Although the state seems to have decisively won the battle over who has the authority over the legal field, it still has to contend with conflicting sources of legitimacy for its laws, between the religious source, which today may or may not be represented by formal ʿulamāʾ, and the political legitimacy of popular sovereignty of the modern state.

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