Baber Johansen

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even more radical principle of exclusion, one that is based on a scholarly
form of division of labor only. He writes:
As to those who are not qualified for independent legal reasoning
on matters of legal norms, such as the ordinary men, the
theologians and the scholars of uÒÙl al-fiqh, their voice does not
count in the consensus. Some of the theologians said: the voice of
the ordinary men has to be heard in the consensus. Some of them
said: the voice of the theologians and the scholars of the
methodology of law has to be heard. This [claim] is incorrect,
because the ordinary men do not know the methods of
independent legal reasoning, so they are like children. As far as
the theologians and the scholars of legal methodology are
concerned who do not know all methods [to develop] legal norms,
their voice will not be taken into consideration, much as that of
the scholars of applied law, if they do not know the methodology
of the law (idhÁ lam yaÝrifÙ uÒÙla l-fiqh). 86
In the eleventh century, jurists of the Íanafī and ShafiÝÐ schools of law,
and at least Ibn ÝAqÐl among the ÍanbalÐs, do so explicitly when they
exclude the theologians—and the traditionists—from those whose
opinion counts in the consensus of the jurists, arguing that theologians do
not know how to handle the methods of legal norm derivation.
Even those who do not exclude the theologians from the consensus of the
community of legal scholars implicitly separate the law from theology in
their presentation of the cult. As mentioned before, every law book
begins with a presentation of the five pillars of Islam: the testimony of
the existence of God, ritual purity, the five obligatory prayers, fasting, the
alms-tax, and the pilgrimage. It is striking to see that there is no chapter
on the first pillar of Islam, the shahāda. To testify that there is no God
but God and that MuÎammad is God’s prophet is the first and the most
fundamental "pillar of Islam" that, according to theological reasoning,
not only precedes all other cultic obligations but—as an expression of
belief in God and His Prophet—also is, according to all jurists and
theologians, the condition for their valid performance. The fact that the