Dr. Muhammad Maroof Shah
Another related point complementing the point on ease and open-endedness is attitude of humility advocated in the tradition. Instead of saying what does Islam say we should ask what do Muslim scholars say on this or that point say Caliphate/Islamic State, rights of religious/sexual minorities/women, freedom of belief/disbelief, triple talaq, qurbani, permissibility of music, compatibility of modern banking with Islam, dress code and grooming/hair code.
To claim that Islam says this or that about issues that are often debated (we don’t debate invariant value/ethical coordinates), is, generally speaking, problematic. We can only strive to know (to make best approximations) what Islam says/God really means/intends on questions usually asked – on other questions that are more foundational we usually don’t need to ask and do not need to be told what Islam says as we know what our fitrah demands or what aql-isaleem requires or what conscience allows. And jurists differ in their conclusions on almost all these questions.
They don’t differ in matters of worship to significant extent and that explains why none including Muslim modernists/reformists asks for reconstructing them. In transactions (mua’malat) they are bound to differ and long back they have agreed to disagree (thus, as has been remarked by a modern scholar, synthesizing two apparently opposite traditionally rehearsed teachings “My community will not agree on error” “Difference of opinion in my ummah is a mercy”).
It means Shariah in practice becomes open ended and we can’t close the debate that this or that is the Islamic view of it and hence uncontested. Before one can go for it or for any rigid polemics for and against the host of legal opinions that are hotly debated (our sermons and book shops are stuffed with this polemics on issues that God hardly minds and that require/invite divergent legitimate responses – and one wants to laugh at the anxiety to suppress difference), one needs to consider the following qualifiers or filters that force us to recognize essentially tentative nature of our views and give benefit of doubt to other opinions.
In fact we find the earliest instances dialogue in classical age being close to this ideal – everyone, not just majority, often, agrees on the solution proposed after discussion. Isn’t it sad to note that the issues of democracy, mixing of schools of fiqh, many modern economic and social institutions, travel without mahram relative, women drivers/heads of larger institutions including state, burqa/hijab imposition, views on philosophy and Sufism, supposed innovations in popular piety/devotion, divorce etc. violently divide us to this date?
Fiqh is the attempt to think and concretize Shariah and it differs not just from school to school but even from jurist to jurist. Since God wants to save all souls or make the world livable for everyone who agrees not to destroy it for others, and people differ from region to region, from time to time, from stage to stage of their lives, fiqh adapts accordingly. Fiqh is open ended – we are invited to exert ourselves in choosing their decisions so that God’s intention is fulfilled – there are situations where no fiqh manual comes to our help and we stand naked before God/conscience.
It is interesting to find all kinds of opinions within the prescribed limits entertained by Muslim jurists and we find upbringing, politics, theology, considerations of public good etc. impacting on them. Regarding the much debated hudood ordinances in Islamic law, it is noteworthy how Islam’s theory of limits, as framed in Muhammad Sharur (whose reception has been much affected by some of his controversial views and simplistic reductionist view of mysticism) in contemporary times, makes man free to choose from one end of the spectrum to the other without incurring any sin.
Applying mathematical notion of limit (to the Quranic notion of hadd) developed by mathematicians, certain old controversies in hudood/inheritance laws get reframed and appear almost resolved. He has argued that “Allah set the limits for the law whose upper and lower boundaries encompass the scope of legislation that human societies are allowed to explore freely.”
Since it is very hard to ascertain the precise meaning/intention of the author of Sharia and one can’t, ordinarily, vouch for one’s interpretation as the final one, one can’t delegitimize other possible interpretations. There is so much freedom to legislate and all we have been given is limits that must not be transgressed. The dialogue must go on while we keep striving for knowing the meaning intended by the Canon.
Principle of Crossing Over
This point complements several other arguments for the idea of talfeeq – choosing amongst several opinions of legal scholars according to demands of reason and conscience or time and space. Much commented hadith – in the disagreement of Ummah is mercy – appropriated by proper application of talfeeq methodology – developed in Ibn Arabi who has elaborated extensively ontology of mercy and defended the idea that choosing easier option is not yielding to lust but to primordial nature or fidelity to divine constitution of man oriented towards expansion of spirit provide ample basis for mercy centric fiqh.
· Given how little is specified in the Canon and how wide open the world of undetermined, we see mercy in operation. One is usually comfortable with the custom and Islam canonizes custom, so to speak. It is no wonder fiqh, especially Hanafi fiqh could adapt to so many continents or cultures and traditionally Muslims hardly felt difficulty in living by it. The Quranic declaration “Take what is given freely, enjoin what is ‘urf(known to be good), and turn away from the ignorant (al-Aʽrâf 7:199)” is readily appreciable as universally applicable liberating praxis for every sane moral person. We are asked to enjoin what is known to be good – this encompasses universal ethic.
From Usul al Fiqh by Abu Tariq Hilal we may note other points that further strengthen the case for mercy-centrism.
· The majority hold that Ijtihad is liable to error. The minority hold that each of the several verdicts may be regarded as truth on their merit. (Shawkani, Irshad).
· As for the practical rules of Fiqh, most of them are from texts which are speculative in meaning (Dhanni dalalah)
Some most often asked questions regarding permissibility concern issues regarding which the Quran/Sunnah is silent. The legal views invoking solitary narrations akhbar-i ahad that some stipulation may be there and we know there is a difference between legal status of the views based on the Quran and what Farahi school calls Sunnah and those based on solitary reports.
Let us not forget that there is no invisible being in heaven commanding and prohibiting. God is Freedom and what one may construe as shackles are summons of freedom; law is, as Iqbal said, ultimately, our own prerogative and one discovers it within. And the greatest law is that of love and when we are in doubt regarding any ruling or have to choose between two different interpretations we have to decide on the basis of this principle: That is to be followed which leads to increase of love of God and love of neighbour.
Certain Applications of Mercy Centric Fiqh
Women’s Rights
· “Harm is ‘probable’ some jurists claimed, ‘when a woman travels by herself,’ and ‘when people use legally-correct contracts with hidden tricks as means to usury.’156 Again, Malikis and Hanbalis agreed to block these means, while others disagreed because the harm is not ‘certain’ or ‘most probable.’ For example, in the name of blocking the means, women are prohibited from ‘driving cars,’ ‘travelling alone,’ ‘working in radio or television stations,’ ‘serving as representatives,’ and even ‘walking in the middle of the road.’’’
· Kecia Ali writes:
The Shafi’I school allows a wife to obtain a divorce on grounds of non-support after as little as three days; the Hanafi school never does, even if the wife is indigent and her husband fails to support her for decades. The Maliki school allows a father to contract a marriage for his never-married daughter over her objections even if she is a 35 year old professional; conversely, the Hanbali school says that the father’s power to force a girl into marriage ends when she turns nine. Virtually all Sunni jurists consider a triple repudiation given at once to be legally effective, if reprehensible; Shi’i law, however, counts such a pronouncement as only a single repudiation. These mutually contradictory positions cannot all be equally correct interpretations of an infallible Divine Will. All, however, are significantly shaped by the patriarchal constraints of their times of origin. Once Muslims recognize this, the need for qualified Muslims to create a renewed jurisprudence should be clear.
Fistful Beard
Let us first state mainstream view. Sheikh Abdul Haqq Muhaddith Dehlwi (Rahmatullahi Alaih) in Ash’atul Lam’aat: “It is Haraam to shave the beard. It is Waajib to let it lengthen to more than a fist-length (hence to cut it less than this is also Haraam).”
It is stated in Durrul Mukhtaar that, “It is Haraam for men to trim/shave their beards. The Sunnat length is fist-length,” (Page 223, Vol. 4). The traditional juristic position and its basis in hadith has been well summarized:
Know that in principle, letting grow the beard is obligatory according to the majority of the scholars of the jurisprudential schools, and among them those of the four schools and others. Ibn Hazm has even reported that there is Ijmâ` (a scholarly consensus) as regards this issue.
However, if we note the position of certain scholars in various schools (constituting minority/marginalized view), we find much more lenient view as well. For many major figures in Shafi school, it isn’t obligatory. Beard has been minimally defined as two-three days hair growth on chin – cheeks and other areas have been excepted by many scholars. Shiite scholarship has endorsed closely cropped beard that is barely distinguishable from stubble. As such various scholars have allowed French cut beards. It has been noted that “There is a difference of opinion because there is no decisive proof about it. A decisive (qata’i) proof does not mean that a hadith exist about that matter, but it mean that there is an undisputed argumentation about this issue, because each school of thought have a different methodology about how to process the main sources of law in Islam.” And “Technically for something to be categorized as Sunnah, it has to be proved that it was actually something the prophet (PBUH) frequently did or something that he had instructed us to do. And then Sunnah isn’t mandatory, until specified.” Accordingly we find, as Qardawai has noted, spectrum of opinions from wajib to sunnah to mustahab regarding beard and the last mentioned position means no sin incurred for shaving. It has also been argued that one may not choose to sport a beard to begin with as in young age more often than not is done today, but if one has decided to grow beard then you are not allowed to cut it off.
The Quran is silent, and the hadith literature provides some probable but not certain evidence regarding its desirability. However the mainstream scholarship’s interpretative jump from desirability to being a sunnah/wajib observing or not observing which might have otherworldly consequences has gaps that many modernists have especially noted. Malik regarded it as an abomination for a Mufti to say that “It is unlawful” in matters of ijtihad that are subject to difference. The jurist should simply say “I dislike.”
· Some acts are originally mubah but their regular performance is makruh. E.g., playing chesss and permissible music and amusement. (Ahmed Hasan, The Principles of Islamic Jurisprudence, p.150). Except grape wine (khamr) which is haram for Abu Hanifa, whatever quantity, intoxication or not, other wines are haram when intoxication occurs. However for general fuqha every intoxicant is khamr and sharab because the Prophet saw said kulli muskarin khamr. The Prophet has said that whose more quantity causes intoxication is haram if in less quantity as well (Tirmidhi). Maulana Khalid Saifullah Rehmani concludes: her nasha awar masroob khawh mikdar ki kilat ki wajah sae ya aadet aur khu ki wajah sae amlen is sae nasha paeda na ho, haram hi oga. This is Imam Muhammad’s opinion and jurists have given fatwa on this opinion.
· Ghazali remarked about fourth kind of makruh whose lawfulness is doubtful, such as the meat of beasts of prey, and a little quantity of nabiddh. But this is open to question, for one whose ijtihad leads him to its lawfulnesss, it is unlawful for him, and one whose ijtihad leads him to its lawfulness, it is lawful. Explaining another important point, Ghazali has also remarked that there is no reason for disapproval unless there is predicament in one’s mind and it is deeply seated in one’s heart on account of throwing doubt by the opponent. The Prophet saw said “Sin is a predicament of the heart.” This creates a universally acceptable standard for humankind. And none can seek mercy against the judgement of conscience. Conscience itself is mercy that prevents damage to the soul as without it we could do abominable things.
· Izz al-din al-Sulami opined that if a murderer repents with the determination of not committing any further murder his repentance is perfect, though he does NOT surrender himself for punishment. This is against Shafite school. He defended tafleeq in clear terms. (Sayyid Rizwan Ali, Izz al-din Sulami His Life and Works p 28-32).
· Jaser Auda in Maqasid :A Beginner’s Guide has listed certain opinions such as the following. If the couple choose not to have children for some reason, perhaps because they are too young or because of what you called “burdens of a complicated family,” Islam is not against that. Whosoever of parents better cares child, child should go with him after divorce and remarriage.
· The book of Hanafi fiqh Bazaiziya distinguishes between purdah of strangers and gaer muharram rishtadar. No need to cover hands and face.
· For Shatibi it is bida to insist on completion of the recital of the Quran in Ramadhan,
· Eating one’s fill is mubah but eating over one’s satiation without any valid reason is haram.
· Aqiqah is mandub “although it is performed by sacrificing a bird” (Mawatta). Shower on Friday is mandub. “On Friday if anyone performs ablution, it is all right; if anyone takes a bath, that is excellent.” (Musnad Ahmed)
· “If the couple choose not to have children for some reason, perhaps because they are too young or because of what you called “burdens of a complicated family,” Islam isn’t against it.
The Article is part of the weekly series titled “Seeking Ease and Mercy in Muslim Law” by Muhammad Maroof Shah. The series aims to explore the compassionate and flexible spirit of Islamic jurisprudence, challenging rigid interpretations and highlighting Islam’s core emphasis on mercy.
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