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Islam & Philosophy

Islamic Law, Reform & Philosophy

Oliver Leaman looks at philosophical problems related to basing law on religion.

Islam has a long and intricate legal history, and this has led to important arguments in the Islamic world about what law rests upon and how far it may be changed. Sunni Islam is divided up into four major legal schools, and there are a variety also in the Shi`i tradition. There are often different approaches to ritual and punishment, and in particular, in how to judge cases. Some schools accept analogy and precedent, others do not, or at least are cautious on straying from the letter of the law. After all, in the Islamic world, the source of law is ultimately the word of God as recorded in the Qur’an, and also in the traditional sayings of the Prophet and his companions called the Hadith. Yet however distinguished these sources may be, they are not unambiguous. The scripture itself may be interpreted in a number of different ways, and the (many volumes of) sayings of the Prophet and his companions are subject to debate as to their authenticity as well as their scope and interpretation. The origins of these texts are quite distant in time from us now, and so their relevance to modern times is also debatable.

The question of law reform is a question for all legal traditions, of course. Generally laws change as times change; but there is a particular issue for religious law, in that, when God establishes the rules, they’re not supposed to be only a temporary guide to how to live. Rather, God is our creator and so knows what is in our interests, and when he establishes rules of conduct they represent the rules for all time and every place. And since they come from God they’re therefore perfect rules, and so it seems difficult to change them if they look inconvenient or out of place in modern times. Some philosophers of law in the Islamic world argue then that nothing can be changed, and the rules that were established at the beginning need to be maintained regardless of social and economic changes since. They base this position on an early debate in the Islamic world, which started around the eighth century CE, about objectivism or subjectivism in law and morality. Is the law right because God has established it as right; or did God establish it as right because it is independently right? (In the West this is often called the Euthyphro Dilemma, after the Platonic dialogue in which it was expressed.) The objectivist view makes it look as though God needs to find out what law ought to be – as though the rules of morality are objectively independent of Him and He is morally required to follow them. Meanwhile, the subjectivists argued that what is moral is whatever is established by God, and there is no independent way of finding out what that is. There is no other source of moral, and so legal, authority. Therefore, one has to obey what God has specified as the law, without questioning or changing it.

This was a heated debate in early Islam, and continues to have a significant impact on jurisprudence, the philosophy of law, in Islamic cultures. In the past the subjectivists (the Ash`arites) tended to win out against the objectivists (the Mu`tazilites); but today this has been reversed in many jurisdictions.

Artwork © Bea Ysolda 2025. For more art by Bea please visit bea_ysolda on Instagram.

The Intention of the Law

In any case, a lively debate is taking place about how far Islamic law can be changed and according to what principles. This is not essentially a legal debate, but more of a philosophical one, having to do with what the basic principles of law are and where authority to legislate resides. Philosophers who have argued for seeing Islamic law through the eyes of its intentions (maqasid al-Shari`a) include al-Shatibi and Shah Wali Allah in the past, and in modern times, Fazlur Rahman, Jasser Auda, Tariq Ramadan, and Adis Duderija. There is also a maqasid al-shari`a research unit in Saudi Arabia, called the Maqasid Center. This clearly is also not just a modern debate, but arose from the early centuries of Islam, and was first explored in detail by al-Shatibi (14th century CE). It has become a more discussed issue in modern times though, since there are a number of modern governments that call themselves Islamic and so wonder how Islam should be reflected in their legislation. There are other governments that call themselves Islamic in their constitution that have to balance a fairly secular jurisprudence with religious elements. In particular, there are modern attempts to change longstanding laws based on religion, and a need for a justification of how to proceed. Where laws are secular there is little problem in changing a law if it’s seen to have become outdated or out of line with the public mood. But divine law does not go out of date or need updating, and so there is a problem in changing it, so one needs some principle based in religion to carry out changes to religion-based law. This involves trying to work out what the purpose of the law is in the first place, and asking whether changing the interpretation of the law might be a better way of realizing that purpose in contemporary conditions.

This might seem to be a tall order, for who can understand the purposes of God? On the other hand, the Qur’an does refer to reasons for laws in general terms: that laws are for our welfare and happiness. So if the existing law no longer looks as though it contributes to human welfare and happiness, then it looks like we could replace it with something else that does, and we would then be better off going along with the intentions of the law.

The first thing that needs to be said here is that reason is required if we are to think about the purpose of law and the nature of legislation, since we should not do something just because it’s what has been done in the past, or because it’s what we have been told to do. And there are many Qur’anic passages that praise thinking and argument, and also ones that encourage justice and discourage oppression and exploitation. So we should think rationally then about what rules truly promote justice and peace, and fight against laws that do the opposite. The new rules might go against what already exists as part of legislation; but there is no reason to rely on extant laws just because they are well-established and traditional. The Qur’an itself frequently challenges traditions at the time of Muhammed (c.570-632 CE) and seeks to replace them with better ways of thinking and acting.

Yet this is a complex issue especially because Islam has often adopted `urf, the customs of a community, if there’s nothing objectionable about them. Also, these days, Muslims often live as minorities in countries with different ways of doing things, and they’re urged by some leaders to adopt those customs if they do not violate Islam, since they represent the customs of the community. They should then within limits seek to integrate into civil society and become citizens when they can. They remain distinct to a degree as Muslims, but they should aim to join civil society and adapt their laws and customs to that society. Indeed religious law is often thought of as harsh and inflexible, but on the contrary, the fact that it has survived so long must mean that it is capable of changing with the times. Otherwise it would not still exist today.

Another main problem with basing legislation on the intentions of Islamic law, is that they are either so general that they do not point in any particular direction, or are so specific that they are obviously linked to some influential group’s particular interpretation of the texts. Take the ban on charging interest on loans, which is quite clear in the Qur’an. It might be taken by some moderns to be a ban on exploitative interest rather than on interest as a whole, since the modern global economic system is based on interest-bearing securities and all that devolves from that, and it is to the advantage of all that we live in a modern economy. There are also legal ways around the ban on interest, such as replacing interest with profit-sharing (which is how many Islamic banks work). However, the percentage of profit shared always bears a remarkable similarity to prevailing market interest rates on loans. This method is vouched for by a panel of Islamic legal experts, who judge that it does not flout the rule against interest. So we’re told that the intention behind the ban on interest is satisfied with the use of a financial device to sidestep the ban, but is it? Is it not rather a way of redescribing interest so that it appears not to be interest, though in reality it is? This is not the place to discuss the institution of Islamic banking in detail, but this does give us an idea of some of the problems with the idea of looking to the intentions of the law as a guide to legal reform.

Another rather more serious issue is whether it is acceptable to ask what God was thinking when he established the law. What for example did He have against eating pigs? Plenty of people eat pork and do not appear to suffer as a consequence, yet Muslims are forbidden from doing this, and many other things also. Perhaps some rules are not so important in themselves but in their roles in distinguishing one group from another. And as it often says in the Qur’an, it can be impertinent to expect to understand why God insists on certain things: He knows, and there is no reason to think that we should know in every, or perhaps any, case.

Reformers of Islam will continue to argue that we can work out what the point of a religious law is and use that knowledge to consider changes to fit Islamic law into the modern world. The argument here is that we should exercise caution before going off in this direction. Being finite creatures, perhaps human beings should be hesitant to claim that they know how God thinks.

Oliver Leaman is a professor of philosophy. He’s interested in Islamic, Jewish, and Asian philosophy.