Discovering the Law without a Coherent Legal Theory: The Case of the Council of Islamic Ideology

Abstract

In the post-colonial world, scholars – Muslim and nonMuslim – have generally found it better to mix up the views of the jurists belonging to various schools of Islamic law under – the presumption that the various schools of Islamic law followed a ‘common legal theory’ and differed in minor details only. This paper highlights the problems in the methodology of modern scholars, and for this purpose focuses on the Council of Islamic Ideology, the constitutional body for making recommendations to the Parliament for the purpose of Islamization of laws. It shows that while criticizing the works of the Muslim jurists on Islamic criminal law, the Council has not been able to develop a comprehensive and internally coherent legal theory, and has instead relied on a mix of principles of various schools joined haphazardly without resolving internal inconsistencies. It concludes that the modern critics of Islamic criminal law, by breaking their links with valid legal sources, are left with reason as their sole guide in addressing legal problems – an extremely pure form of naturalism that deems reason as a complete source of law and accords too much room to discretion and ‘independent’ reasoning.