Baber Johansen

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underline the contingency of their own doctrines and decisions, the more
the elevated rank of the indisputable knowledge (Ýilm yaqīn) conveyed by
the revealed texts becomes apparent. In the MustaÒfā, Ghazālī discusses a
field of non-contingent and unchanging truths that is constituted by the
rational cognition of theology as well as the norms of those parts of legal
methodology and the applied law that are directly based on God’s words.
He opposes this field to the changing, contingent and unpredictable
character of the jurists’ norms on transactional relations between men. To
these, he denies the character of indicants able to prove the veracity of
norms. I quote his evaluation of the relation between these two fields:
What lies beyond [the first field] are the fiqh norms based on
assumptions (al-fiqhiyyat al-Ûanniyya) for no categorical proof
(dalīl qatÝī) is available [for them]. The fiqh norms constitute a
[licit] object of ijtihād. In these norms, according to our judgment,
there is no specific correct solution and no sin is committed by the
mujtahid, as long as he perfects his effort of norm production
through individual legal reasoning and as long as he is qualified
[for ijtihād]. 99
In the twentieth century, norms of Muslim fiqh have been introduced into
the codified law of an important number of Muslim countries. Since the
1970s, the principles of Islamic normativity have been given
constitutional ranking in a number of Arab and Muslim countries. It is
interesting to see that the Supreme Constitutional Court of Egypt in its
continuous jurisprudence since the 1990s has recourse to the classical
contingency model of Muslim fiqh. It distinguishes contingent—and
therefore changeable—norms of the classical Muslim heritage from
unchangeable principles and norms of the revelation. It thus opens the
way to legal change and justifies it, at the same time, through anchoring
this change in the eternal principles of the Muslim revelation. 100 Fiqh, in
this jurisprudence, is no longer accepted as the indisputable
representation of the Islamic religion. The question is whether the
integration of fiqh and the eternal principles of the revelation into state
law and constitutional jurisprudence will not, in the long run, thin out the