Unless deep thinking is done on the issue we would continue to have much heat and little light in debates on Islamic law. It means philosophers and social scientists should be part of the team of iftah on most issues where deeper understanding of new situations is required and social science provides needed insights. Iftah on more significant issues needs to be a team rather than an individual work and we might get, in many cases, effective Ijma thanks to modern communication facilities. Currently we find not even a remote probability of arriving at a consensus on many issues that shouldn’t have been dividing us so sharply – perhaps Muslim jurists and social scientists need to learn from the theory of communicative rationality and dialogue as developed by theorists such as Habermas.
For appreciating possibilities of more creative ways of addressing certain long standing issues in classical fiqh scholarship on inheritance, we may read especially Shahrur who has argued for using mathematics in a better way, especially in a better mathematically grounded view of the notion of hudood and inheritance shares. For the problem of takfeer, diverse viewpoints from Ghazzali to Gahmidi and Farhad Shafti show difficulty of binary logic or sharp judgments. For the analysis of riba we may read the debate from Mufti Muhammad Abduhu to Maulana Jaleel to Maulana Moududi to Muhammad Umar Chapra. For appreciating/synthesizing diverse fiqh schools, read Ibn Rushd’s Bidahat al-Mujtahid. For women’s issues read Riffat Hassan.
“Fiqh is open-ended — all of us, including laymen, are invited to exert ourselves in choosing decisions so that God’s intention is fulfilled. There are situations where no manual comes to our help, and we stand naked before God and conscience.”
In fact we find the earliest instances of dialogue in the classical age being close to this ideal – everyone, not just the 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 muharram 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? From the day Muhammad Abduhu declared interest in modern banking legal and Egypt government later fixed 7% interest as legal to this day we find debate on riba (and its supposed identification with interest) and arguments for Islamic interest free banking continuing with little clarification for the State to consider what to do/could be done.
Without a deeper understanding of what is economics in theory (of most influential economists who are not taught in Madrasah curriculum) and practice (in scores of banking/investment options that range from mostly shariah compliant to few noncompliant forms) we can’t sideline much shoddy thinking that has been our bane. The practice in certain countries/ individuals of factoring in inflation for doing justice while making repayment of principal amounts needs cognizance. Forgotten chapter of extending qard hasan (there is an opinion to consider it obligatory in view of leaving no option but bank based finance to those who seek but aren’t given as people keep money locked in fixed deposits or other interest based products. But an equally important point of ensuring Islamic ethical prerogative to return qard in a beautiful way or with some unspecified gift would have avoided the need to resort to bank interest based finance. However neither Ulama nor Muslim movements emphasize this point resulting in almost universal involvement in interest based financing.
Without deep exploration of philosophy of politics/state (one notices, for instance, in thinkers from Plato and al-Farabi to Arendt and Voegelin), the question of Islam’s view of the Caliphate/Islamic state today would suffer from much shoddy thinking and thus erroneous reactions on the part of both conservatives and liberals. Without good art historians/theorists to guide us, we can’t arrive at a satisfactory understanding of Islam’s position regarding such things as painting/music/housing design. Within the mainstream traditional setting we find, especially lately, some attention to this problem and thus we find likes of Shibli, Abdul Bari Nadvi, Taqi Usmani, Majid Daryabadi, Manazir Ahsan Gilani and number of scholars from Iran who had been more open to modern debates, contributing their bit to illuminating a host of philosophical, theological and legal issues.
God has sent shariah and as such it has never been debated by any Muslim school/sect. What has been debated and continues to be debated is this or that interpretation of Shariah. 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 – all of us including laymen are invited to exert themselves 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 liberating to note how Islam’s theory of limits, worked insightfully in Muhammad Sharur 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 of the West, certain old controversies in hudood/inheritance laws get reframed and 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.” Leaving a critical discussion of Sharur for some other occasion, I First refer to some questions, as an illustration and then conclude with a few references to history for us to meditate upon.
Some Questions
- Are we obligated to establish Islamic State and its dominance in the world? Not at all, according to great number of great classical and modern scholars. Can we enjoy light music? Yes and no depending upon which jurist you ask. The same yes and no apply to scores of FAQs on Islam and women’s rights. Whether aamin should be said loudly or tarawih has 20 rakat or one can wipe over socks or needs to wash feet, a Hanafite can or can’t marry a Shafiite or Sunni Shia, celebrate Milad, if God is at all concerned with length of shalwar and beard or whether routine shaping of brows amounts to cursed mutilation or qualifies one as nams, taking meals from certain other sects/religions, whether burqa/hijab is obligatory on pain of otherworldly punishment.
Concluding Reflections and Responses
On almost all questions one might ask, there are many answers available and one can follow the most satisfying one – the one that satisfies our conscience and understanding – in fact we can choose different views for the same question on different points of time in a given situation when the context changes. We need to note that
- “Originally, individuals were free to select and follow the school of ijtihad they preferred. They could even combine it with preferred parts of the jurisprudence of other schools. As the State grew more powerful, such choices were increasingly taken out of the hands of individuals. Ultimately, the State took choice away from Muslim citizens altogether in many areas of the law by selecting the jurisprudence of one of the schools as the law of the land.”
- There have been not just fuqaha but philosophers and Sufis and poets who have engaged with the problem of law in their own way, especially in debates on principles and objectives. Iqbal dismissed tendency of legalism (that Jesus, Sufis, poets fought against) thus “teri tarz-e-ada faqeehana ho to kya kahyaey.”
- Thanks more to political than religious reason, effective sidelining of philosophers in the mainstream juristic thinking – we find jurists such as Al-Mawardi and his Ordinances of Government and juristic manuals such as Hedaya rather than philosophers such as Al-Farabi and works such as Virtuous City at the centre of attention and more influential – has been a development that is now difficult to maintain due to severity of new challenges in the secularizing world. And we know new impulses for thinking today we owe primarily to philosophers. It is philosophers like Iqbal and Fazlur Rahman who fundamentally contributed to new thinking on Muslim law. Dozens of contributors to Muslim legal thought now invoke these two and the Muslim world, in practice, has already embraced many new ideas in formulating laws/constitutions.
- We have rather a small corpus – around 200 (some stretch it to 500 or 600) Quranic verses and less than 3000 (or arguably around 1500 only) prophetic traditions that have legal import – as basic source to think about (although every verse and tradition is important as background/context). Various notions in the debates on fiqh including qiyas, ijma, custom, public interest, juristic preference, maqasid etc are requirements/fruits of meditations on this corpus.
It has been a singular achievement of Islamic cultures that it has maintained the living connection with the Sacred through fiqh formulations. It has built such an impressive structure that the mach of time has not been able to affect it. Of late it has been under attck from many quarters but it is pssoble to argue that such attacks are within the tradition. Taking modern jurists, modernist jurists and reformists in general, it is clear that the basic premises and most of ket concepts stand. The question is do we need to do away with the institution, its largely agreed basic structure or we can easily adapt it to address key issues.
“The true faqīh is he who does not make people despair of the mercy of God, and does not make them lose hope in His gracious spirit. Jurists who send people to hell for imagined transgressions, and fail to link their rulings to overarching mercy, are not to be trusted.”
Ask any question and the answer that would be forthcoming by a judicious review and appropriation of classical ideas would be one that is both rational and scriptural and one which would emerge after the best consultation in secular contexts as well. Since the aim is to ascertain as far as possible 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. Every legislation observes certain limits. Pass any judgment we feel is not rational enough in the name of Islam through the following qualifying filters/authenticity tests.
- Fiqh is not ideally needed to begin with – if there were saintly disposition or what Taoist texts speak of no corruption, it would not be needed. If there were no others and only one man existed, most of it would be inapplicable. It is a means and not an end. It has changed through our history and changes even today as well with the application of Ijtihad. The only unchanging thing in it is the moral law that is universally primordially affirmed. Whether some textual injunctions (concrete applications of moral law in particular period of history) too are absolute or unchanging despite change of contexts is a matter of debate.
- The true faqīh is defined as ‘he who does not make people despair of the mercy of God, and does not make them lose hope in the gracious spirit of God.’ It is in this sense that Ibn Arabi who thought his mission was to declare the vastness of mercy of God may be read as true faqih. Jurists who end up sending people to hell for their imagined or real transgressions of this or that manual and who fail to link their formulations or opinions to overarching mercy here and hereafter are not to be trusted.
- The intention of Sharia has been to minimize intervention. Ideally the Prophet would hgave given us far less injunctions than he has given because questions were asked and it is even possible to argue that many Quranic injunctions too wouldn’t have come. Due to persistence of certain limitations and negative attitudes in the community many issues arose and the Prophet was required to respond.
- It is beyond dispute that the Quranic and Prophetic injunctions kept changing in response to different situations, contexts and he even endorsed divergent views simultaneously. Hijab verses wouldn’t have been revealed if the issue hadn’t arisen.
- Wide divergence in Meccan and Medinan injunctions can only be explained as local response to local issues and what is informing that response remains, at certain higher or deeper level, invariable.
- Even if we don’t recognize certain extreme ideas such as those of Tufi and many moderns, and choose from more acceptable seven schools and major jurists, we arrive at a very short list of problematic opinions. We are bound to accept what? Neither ahad, nor companions opinions, nor ijma of past scholars (accepting a few historical decisions like Quran compilation. certain things are very clear Quranic verses and not, very few issues classical sources. What are the clear and decisive texts of the Quran and Sunnah over which disagreement would be unacceptable. Here one can again apply many filters to reduce them to the minimum.
- We need to settle nazm, naskh, synonyms in the Quran, since sometimes both literal and metaphorical meanings may be conveyed by the texts (as Kamali asserts).
- There is absolutely minimum/ no naskh in the Quran.
- . Then there is no reason for its disapproval unless there is a predicament in one’s mind and it is deeply seated in one’s heart on account of throwing doubt by the opponent.
Some most often asked questions regarding permissibility or not concern with issues regarding which the Quran is silent and sometimes sunnah as well is silent. It is usually on the basis of solitary reports akhbar-i ahad that some stipulation may be there and we know there is a debate on their legal import and it is hard to invoke otherworldly consequences regarding them. Given it is ultimately grace and not actions that save, we need to emphasize relative value of legal stipulations and avoid fixation with too rigid formulations. Whenever one is in doubt, one should consult the heart, as advised by the Prophet (S.A.W). Law is made for us and not vice versa, as was told by Jesus. Mercy has the last word.
Comments are closed.