Baber Johansen

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IX.
Conclusion
The fiqh thus legitimizes contingent decisions on all levels of the law.
The concept of contingent religious norms is already present in the
QurÞānic reference to God’s abrogation of QurÞānic verses (2: 106). The
jurists develop this reference into a theory according to which God
revealed norms with temporary validity to his prophets. Therefore, the
norms revealed to the prophets differed from each other. It is only at the
death of the Prophet MuÎammad that God ended this practice of
abrogation. Therefore, the norms contained in the QurÞān at the death of
the Prophet MuÎammad will remain forever unchanged.
Fiqh recognizes that changing customs and social conditions require new
rules (ikhtilāf al-ahkām bi-khtilāf al-azmān). It thus refers explicitly to
the temporary character of an important part of its norms. The contingent
character of judicial decisions is discussed by all major jurists in great
and sometimes luxurious detail. The contingent character of the decisions
that form the object of the law, that is human acts, can be traced back to
the central term through which the law defines the capacity to act: free
choice (ikhtiyār). A free choice always presupposes that the act is not
determined and could have been different. A strong element of human
self-assertion is, therefore, part of fiqh, the Muslim system of ethical and
legal norms. 97
Fiqh’s insistence on the contingency of an important part of its norms
and of human acts in general opens, on the one hand, a large field for the
adaptation of legal norms to changing social conditions and could be a
means to assure the flexibility of the legal system. On the other hand, the
reference to contingency serves—in all pre-modern systems of thought—
as a proof of the existence of an essential, substantial, eternal, true and
living reality that guarantees the existence of contingent beings. In
Islamic philosophy this reliance of contingent beings on non-contingent
reality is best brought out in Fārābī’s Ideas of the Inhabitants of the
Virtuous City, 98 which opposes the necessary first being to the possible
beings of the sublunar world. Fiqh’s insistence on the contingency of
norms and acts sets the same mechanism into action: the more the jurists