1. What’s the solution? Codification and the centralization of state power has been the dominant force in legal theory since the 1700s, and it seems like it’s going to stay that way for a while, and there seems to be no viable alternative.

I would also question whether this pluralism exists because Muslim jurists developed it this way, or because of the historical reality that it was impossible in Egypt for example to apply a unified law system in the outskirts of Cairo, much less in villages. I think that the justification given by many Islamist groups would be that today we can apply this Shari’a in a uniform fashion because we have the methods (technology, media, etc.) to do so.

2. Codification removes much of the diversity in legal opinions, yes, however codes can be interpreted by the judicial powers and codes can change just like anything else can as the interpretation of the text changes, albeit with much more difficultly than traditional case-by-case interpretations.

Also, returning to older interpretations for application in a later period was a common practice throughout the Sunni legal tradition and can be seen through any later text in a fiqh school. In Egyptian history, for example, throughout the Mamluk Period judicial references were commonly made to the rulings of Qadi Khan, even in non-Maliki courtrooms. The same would be done to Al Qaddouri, with a number of Shafi’ judges actively quoting him hundreds of years after his death.

And finally, there is on the other hand the common law system, never really applied in Muslim countries but something that seems closer to the past Islamic reality. Does this system have the same form of restrictions of pluralism or does its reliance on precedent and more judicial freedoms give the answers that are necessary?

We’re glad you both enjoyed the piece and thank you for these good questions. We are especially encouraged that you both are asking about the real-life implications (past and present) of Islamic legal pluralism. This is very much the direction we would like conversations about sharia to take, so we are happy to engage with a few more details here. A full answer is, of course, beyond the scope of this forum, but we offer the following as a beginning.

Mr. Casper asks about whether fiqh legal pluralism was actually recognized in real-life adjudication, given that many Muslim governments tended to favor a particular school. He suggests that this favoritism stifled (or, practically speaking, eliminated) the fiqh pluralism that otherwise existed in theory. Actually, it did not. While it is true that most Muslim governments had a favorite fiqh school, Muslim rulers nevertheless often appointed a variety of judges (belonging to different fiqh schools) corresponding to the schools most popular in each geographic location. It was also common for judges of the government’s favored school (and, granted, there were more of them than of the unflavored schools) to take judicial notice of fatwas (nonbinding legal opinions) from fiqh experts of other schools, usually presented by one of the parties as part of a request for adjudication according to that school. Judicial treatment of these requests were of course not uniform, but the important point is that it was considered relevant, and sometimes dispositive. In this sense, the reality of fiqh-pluralism was a bottom-up, versus a top-down, process. So, yes (using your terms), a citizen of X fiqh school could request an X-based ruling, even if the ruler favored Y fiqh school – either by the existence of a judge of school X for the X Muslim population residing in the area, or by presenting to a judge of school Y a fatwa based on school X. It is also important to realize that, while schools were largely geographically-organized, they were not exclusively so. There were many areas featuring Muslims of more than one school, especially some large cosmopolitan cities. Finally, it is important to note that there was not only pluralism across the different schools of fiqh jurisprudence, but also within those schools as well. Even if one fiqh school was dominant in a particular geographic area, there was considerable variability.)

Mr. Weisbard asks about the present – namely, how fiqh pluralism could work with the practical realities of legal and political systems today. This is a large focus of my (Asifa’s) current book project. It is a large topic with lots of room for different manifestations to take into account to the individual needs and realities of each country. Nevertheless, the argument that I will make is that the idea of individual-driven resolution of legal disputes according to fiqh schools is not one that is unworkable, or novel. This is true even in modern western countries. For example, the practice of alternative dispute resolution (ADR) in the United States is an example of a method by which legal disputes can be (and are) resolved by criteria other than the uniform law of the land. Modern Muslim governments could likewise allow a robust parallel legal realm through which individuals could consent to adjudication of their legal disputes according to a selected fiqh (or other religious) legal authority. You point out potential complications with legal relationships that cross-denominational or religious lines – like marriage. I imagine parties could avoid jurisdictional complications by, among other things, a choice-of-law clause in the initial contract similar to those used by international entities around the world today. There are, of course, complex legal questions where issues get messy between the lines, but overall, this is generally dealt with through creative crafting of legal and administrative rules, rather than rejecting choice-of-law clauses altogether. I will argue in future writings that the benefits of fiqh pluralism are, likewise, worth the effort.

Thanks again for a great discussion.

Asifa Quraishi-Landes and Tamir Moustafa

You also note: “Contrary to the impression created by many contemporary Islamists’ focus on codification, “legislating sharia” is not what makes a country Islamic. Pre-modern Muslim rulers enjoyed sharia legitimacy for their lawmaking on the premise that they served the public good, not because they were selecting and enforcing a preferred interpretation of scripture. In fact, it was their early attempts to do the latter that led to the separation of fiqh and siyasa legal realms in the first place.” I think Islamists like the MB can be more subtle on this question than they are sometimes given credit for – there is lots of debate on the ways in which sharia can serve the public good and the argument for the Islamic minhaj as derived from but not limited to sharia, is key to the MB argument for sharia as a comprehensive social and economic project. The problem of course is the risk of radical flanking and challenges to moderates from those who would accuse them of neglecting God’s law for treating sharia as a set of principles. But the Brothers and their allies have long insisted that they did not want to simply codify and apply fiqh…

If not, then isn’t this practical codification, even if the diversity of schools held in theory? Thanks for a worthy article.