Baber Johansen

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use their legal reasoning (ijtihād) to establish legal norms. Such rules do
not oblige those jurists who do not approve of the reasoning that led to
their formulation. In other words, jurists can produce norms only in those
fields on which they cannot reach consensus and the norms thus
produced remain objects of dissent. Fiqh is, therefore, characterized by a
high degree of dissent and normative pluralism between the schools of
law and within each of them and by a continuously growing field of
embattled norms that enlarge, in turn, the realm of ijtihÁd. The control
that the jurists of different schools and opinions exert over each other’s
norm suggestions fulfills at least two functions: on the one hand, it puts
into place a system of checks and balances, the purpose of which is to
prevent individual scholars from claiming the authority of the divine law
for their individual opinions and imposing them on other jurists; on the
other, it keeps alive a constant debate about the religious meaning of the
precepts and ordinances of the law. This debate is a constant resource of
the renewal of religious meaning of institutions, customs and practices.
Epistemological skepticism also determines the status of the judiciary’s
judgment. The judge’s decision can never claim to represent the truth of
the facts because the judge can be deceived by the witnesses or the
parties. His reasoning does not protect him from error. The authority of
the judgment rests entirely on the judge’s observation of the prescribed
procedure, not on the material aspects of his decisions. The Muslim
jurists, therefore, develop, in the eighth century of the common era, the
distinction between the exterior and the interior forum. The judge cannot
take God’s place. He cannot impose his erroneous judgment as a
religious truth on the condemned person. The truth is a matter that is
decided between the believer and his Lord (baynahu wa-bayna rabbihi),
the qāÃī’s judgment enjoys only a technical, procedural and judicial
authority and does not bind the believer’s conscience. 96