Openness and Rigidity of Islamic Law: Jurists' Motives for Change Within the Islamic Legal System

Hania Abou Shamat (University of Florida)

Abstract: Studies of change in Islamic law tend to be exclusive: Islamic law is either rigid as its jurists are limited to the application and explanation of the law as laid down in the formative centuries of Islam, or flexible due to the availability of various reasoning tools (ijtihad). Looking at its long development, however, change in Islamic law is incremental, leading to slow adaptation and, in some cases, stagnation. This paper develops an analytical framework that explains both rigidity and change in Islamic law. It argues that while tools of interpretation are necessary for Islamic law to adapt, they are not sufficient to initiate change. Willingness of jurists to utilize these tools should coexist. The framework, accordingly, focuses on the agents operating the system, their incentives and motives, and the dynamics of their interactions. These agents are jurists who interpret the law (muftis), judges (qadis), and regular Muslims as seekers of legal opinion or litigants. The dynamics of three markets within the Islamic juristic system in the pre-modern era are analyzed: the job market muftis and qadis faced, fatwa shopping, and judicial review. Jurists’ and judges’ manuals, fatwa collections, and judges’ decisions are consulted to reconstruct each market. While the interactions of these markets created opportunities for adaptation and change, the individualistic structure of Islamic juristic institutions, lack of central organization, and the legitimization process jurists faced provided incentives to conform, limiting the frequency by which jurists flexibly resorted to ijtihad tools. Innovative attempts were left individualistic and uncoordinated, limiting the scale of change.