Legalism vs Value=Orientation
Dr. Mohammad Omar Farooq
Associate Professor of Economics and
Finance
Upper Iowa University, USA
October 2006
[Draft in progress: Feedback welcome]
Abstract:
Shariah is a common Islamic term, but
widely misunderstood and misinterpreted. A society cannot be without
some laws or a legal framework. Since Islam’s guidance is in a
social context, Islam has some explicit and specifically mandated
legal precepts and injunctions. The Qur’an is to serve as the
primary and divine source for such guidance. However, Islam is not
all law, as life itself can’t be defined and dictated in merely
legal terms. Historically, legalism emerged as the dominant mode of
thinking and approach among Muslims, where form took precedence over
substance and spirit. Due to such legalism, the goals and values
related to Islamic guidance gradually faded to the background to the
extent that Islam has been reduced to a shell of codes, devoid of
spirit, substance and dynamism. In this essay, the traditional
(mis)understanding of the term Shariah is explored in depth, and the
desired value-orientation is contrasted with the prevailing legalism.
A set of values and principles derived directly from the Qur’an is
also presented.
I. Introduction
Historians often have wondered at the
remarkable success of Islam and the Prophet Muhammad in forming a new
society. The pace of consolidation of this society and its evolving
into one of the greatest of civilizations also has been
mind-boggling. An American historian, even with an overt racist bias,
acknowledged this fact of history.1
“The rise of Islam is perhaps the
most amazing event in human history. Springing from a land and a
people previously negligible, Islam spread within a century over half
the earth, shattering great empires, overthrowing long established
religions, remoulding the souls of races, and building up a whole new
world - the world of Islam. …
The closer we examine this development
the more extraordinary does it (Islam) appear. The other great
religions won their way slowly, by painful struggle, and finally
triumphed with the aid of powerful monarchs converted to the new
faith. …
Christianity had its Constantine,
Buddhism its Asoka, and Zoroastrianism its Cyrus, each lending to his
chosen cult the mighty force of secular authority. …
Not so Islam. Arising in a desert land
sparsely inhabited by a nomad race previously undistinguished in human annals, sailed
forth on its great adventure with the slenderest human backing and against the heaviest
material odds. Yet Islam triumphed with seemingly miraculous ease,
and a couple of generations saw the Fiery Crescent borne victorious
from the Pyrenees to the Himalayas and from the desert of Central
Asia to the deserts of Central Africa.”2
As confrontation and challenge of the
existing powers provided the context for the new society to expand
the territories under its control, in two other respects, the size of
the Muslim community and its influence continued to grow at a rather
astonishingly brisk pace. First, representatives of the Muslim
community, inspired by the call of Islam to propagate the message to
the rest of the world, reached distant parts of the world. Also, the
Arabs originally were a trading community, and under Islam, with
trade and business considered a virtue and thus emphasized, many
Muslims built trade contacts across the lands and seas and even
settled in other parts of the world. Indeed, trade and propagation
were often inseparable. Second, as the Islamic polity took shape and
achieved consolidation and even dominance, people of other faiths and
from other parts of the world often migrated to the broad Islamic
polity in search of peace, security and prosperity. The new
universalist polity, not racially Arab any more, attracted people
from many parts of the world: Bilal (a slave from Abyssinia, now
Ethiopia), Salman from Persia, Shoaib from Rome, and so on.
Despite all the ups and downs through
internal and external tensions and conflicts, the pluralistic
orientation of the Islamic polity continued. The Islamic rule in
Spain provides an illustrative example of Islam’s ability and
success to be pluralistic and dynamic. Three of the greatest
personalities of the three Abrahamic faiths relate to this period and
environment: Averroes (Ibn Rushd; Islam), Maimonides (Judaism) and
Thomas Aquinas (Christianity).
“Averroes, Maimonides, and Aquinas
lived during a time of unprecedented and reciprocal spiritual
intellectual and cultural exchange between Islam, Judaism, and
Christianity, specially during the so called “Golden Age of Muslim
Spain” that continues to inspire, both by its high level of
civilization and its tolerance.”3
The Islamic rule in Spain was an
attraction for Europe on account of both economic and intellectual
reasons. European scholars and learners used to come to the
institutions of higher learning there, which was instrumental later
in the renaissance in Europe.
Gradually, the fate of the entire
Islamic civilization changed, as the western civilization emerged,
and in the confrontation between Muslims and the West, the Muslim
world succumbed to the slippery slope of decadence, while the West
prevailed as victorious and dominant.
Now the center of human civilization
has shifted to the West. While non-Muslims are not generally
attracted to migrate to the Muslim world, Muslims from around the
world are deeply attracted by the West like a magnet.
Indeed, the more a Muslim-majority
country4 is trying to become Islamic from a traditional perspective
through the introduction of Shariah, the more the West and others
seem to be getting scared or concerned, and even many Muslims of
those respective countries are becoming disillusioned and growing
impatient or agitated.
“In the West, the idea of Shariah
calls up all the darkest images of Islam: repression of women,
physical punishments, stoning and all other such things. It has
reached the extent that many Muslim intellectuals do not dare even to
refer to the concept for fear of frightening people or arousing
suspicion of all of their work by the mere mention of the word.”5
Does that mean that the notion of
shariah has lost its relevance or is it better that we avoid it? Not
necessarily. Some people would like to banish the word “Jihad”
from the vocabulary of Muslims.6 If we react in that manner, soon
others might suggest that we banish Islam too from our vocabulary.
Many times a notion can be distorted through misperception,
misunderstanding or misuse. In such cases, the solution is not merely
to discard a notion or term, but to remove the misunderstanding,
clarify the abuses, and ensure that the praxis of faith reasonably
and conscientiously conforms to the claimed ideals.
“It is true that scholars of law and
jurisprudence have almost naturally restricted the meaning to their
own field of study, that dictators have used for repressive and cruel
purposes, and that the ideal of the Shariah has been most betrayed by
Muslims themselves, but his should not prevent us from studying this
central notion in the Islamic universe of reference and trying to
understand in what ways it has remained fundamental and active in the
Muslim consciousness through the ages.”7
While Islam under the leadership of
Prophet Muhammad brought liberation and freedom from human bondage
and ushered in scientific, technological, economic and cultural
progress as part of a dynamic civilization, the Shariah as it is
being presented today seems to do (and probably promise more of) just
the opposite. Why? In this essay, it is argued that one pivotal
problem has to do with some fundamental misunderstanding about Islam
and Shariah. The notion of Shariah has not become irrelevant, but it
is now laden with gross misunderstanding and distortion, which must
be addressed.
II. Shariah vs. Fiqh: Contemporary
“Implementation” Undertakings
To better understand and appreciate the
problems associated with the usage of the term “Shariah”, let us
survey some of the prominent national experiments with Shariah.
In the post-colonial context, the
country that has the deepest and the longest of its background in
so-called Shariah laws is the Kingdom of Saudi Arabia. With its
formative stage beginning in 1750 under Muhammad ibn Saud, and
several phases of consolidation and expansion, the Kingdom took its
current shape in 1932 under King Abdul Aziz. The country,
representing (or occupying the heartland of Islam with two of the
holiest places), emerged under the confluence of (a) the struggle of
Arabs of that part to seek independence from the Ottoman empire of
the non-Arab Turks and (b) the puritanical Wahabi movement that
insisted on the laws of the country be governed by Shariah. The
monarchy and the puritanical religious establishment have worked out
a power sharing arrangement, where matters of Shariah (narrowly
defined, religious laws) are left with the officially organized and
supported religious establishment, and the political and other
authority are vested in the monarchy, which expects to be undisturbed
by the religious establishment. Except a few minor cracks, the
power-sharing arrangement has worked out conveniently for the
alliance and has proven for the Kingdom to be rather stable so far.
Pakistan, since its independence in
1947, has the dubious distinction of being the first Islamic Republic
of modern times. Since then it has become a nuclear power, but has
not succeeded in making a transition to any representative form of
government on a sustainable basis. Every brief period of civilian
government has been interrupted by military coup. During the reign of
General Ziaul Huq, who came to power through a coup in 1977, the
Shariah fervor became strong and soon the country, under dictatorial
rule, was treated with a robust dose of Shariah laws. Earlier, in
1971, to suppress the result of a democratic election and thwart the
legitimate demand and movement for autonomy of East Pakistan, the
military of Pakistan committed one of the worst genocides in history
against its Bangali population, which included victims from the
Muslim majority and Hindu minority.8
In 1983 Sudan began its Shariah
experiment under the military dictator Jafar Numeiri. The Islamic
political groups joined hands with the dictator to facilitate
implementation of shariah. Ever since, the country has been going
through waves of instability. Corruption and abuse of power are
rampant. The country is currently experiencing a genocide, involving
mostly Muslims persecuting Muslims in Darfur. Neither the government
has been successful in resolving the problem, nor has it allowed any
outside intervention to bring the conflict to an end.
At the end of Soviet occupation,
Afghanistan became an Islamic Republic and ultimately the Taliban
movement assumed power in 1996. During its rule till 2001, when it
was removed from power through the invasion by US-led coalition, it
tried to implement one of the strictest and harshest version of
shariah, and earned condemnation of not only the rest of the world,
but also its own people felt hostage under the Talibani chokehold.
Nigeria, another Muslim-majority country, has seen Islamic resurgence
in certain regions, where regional Muslim groups have tried to
implement shariah in their respective provinces/states.
There is a pattern of these projects of
shariah implementation. First, in all four cases mentioned above, it
is associated with dictatorial, authoritarian or hereditary rule of
an individual or a group that is self-imposed on the respective
nation. Second, in case of Pakistan and Sudan, Shariah has basically
meant hudood punishments, where Islam-prescribed punishments of
serious offences, civil and religious, have been meted out in a
society, even though rule of law and independent judiciary are not
present and corruption/abuse of power of law enforcement institutions
is rampant. Pakistan also has implemented one of the most sweeping
reforms to bring the economy and finance in compliance with Shariah
by eliminating interest from the entire system. However, apart from
changes in form rather than in substance, the movement toward
interest-free economy has not improved the economy and the economic
lot of the people.
In case of Saudi Arabia, which claims
to have its laws based on Shariah, it remains one of the worst
violators of human and Islamic rights. There is no independent
judiciary or rule of law. There is no constitutional guarantee of any
defined rights. Women still cannot drive in the country, even though
there is nothing in Islam that prohibits as such. This is all the
more unfortunate and ironic because Makkah, the city of the holiest
place of Islam, was founded by a great woman.9 Wealth in that country
is concentrated in the hands of a powerful few. The shariah laws of
the country can be applied to anyone, other than the royal family.
However, one of the basic principles of Islam is that no one –
absolutely no one – is above shariah or law. Thus, Shariah of Saudi
Arabia is basically Islam turned on its head.
In case of Afghanistan under the
Taliban rule, the strict and harsh interpretation and implementation
of Shariah was imposed on the people in a draconian manner, which
also trivialized Islam by punishing people even for men not keeping
beard or women not covering the ankles, and so on. There was neither
any due process of law, nor any protection against physical assault
or harassment in public by the “virtue”-polices. Of course, the
entire Afghanistan experience, including the Taliban rule, which also
had a vacuum that attracted non-Afghani Muslims to utilize the
country for their own radical agenda, was shaped by both internal and
external factors and power plays of international hegemonic
interests.
The case of Iran is remarkably
different. It has taken the path of representative governance.
Indeed, the revolution came about through popular participation and
sacrifice of the mass. However, in two respects, Iran is still
entrapped in its environment. First, the religious establishment has
been given the ultimate constitutional power that is disproportionate
for a representative form of governance. The power is too much
concentrated in a few “guardian” religious leaders, who have veto
power. Though this may be compatible with Shiite legacy of imamate,
it is serving as a chokehold on the Iranian society. It is important
to understand that “revolutionary” fervors can’t be a permanent
condition. The transition to a normal society must be made.
Sloganeering and rhetoric can’t be substitutes for ensuring
fulfillment of basic needs (and beyond) through adequate economic
development. Yet, Iran is definitely in a much better shape for a
host of reasons, internal and external. Secondly, there are some laws
that are too strict and their implementation too harsh, especially in
regard to women, the minorities and the political or religious
dissidents. Despite these pitfalls, since Iran has upheld and
sustained to date its track of representative form of governance,
there is hope that internal dynamics will facilitate the resolution
of the pertinent matters in the right direction.
The other notable case is Malaysia,
which is unique, in the Muslim world. It is the only Muslim-majority
country to date that has successfully broken away from the
traditional mold. It has achieved the desired economic progress,
without sacrificing its Islamic identity and orientation. It is a
model of pluralism in the Muslim world. It is proud of its Islamic
identity and root, but does not promote the rhetoric or signboards of
Islam like the shariah-enamored countries mentioned earlier. Indeed,
Islamic laws and values are taken seriously in Malaysia, without
compromising its commitment to pluralism or economic prosperity.
Unfortunately, what is championed or
demanded by the Islamic revivalists as Shariah and what is criticized
and shunned by the West as Shariah is not closer to the Malaysian
model, but is identified with those other Shariah-implementing
countries, Saudi Arabia, Pakistan, Sudan, Afghanistan (the Taliban
rule), with draconian penal laws and suppression of some of the basic
human rights. Indeed, in these countries, Shariah has become
synonymous not with Islamic values and principles, but almost
exclusively with harsh penal laws or ordinances of which the most
common victims are people with little or no power in the society. The
case of Hudood Ordinance in Pakistan that has resulted in thousands
of rape victims – yes, rape victims - ending in up in prison and
subject to capital punishment or whipping is illustrative.10
That’s why a better understanding of
the concept of shariah is so important, especially in regard to the
fact that shariah, as mentioned in the Qur’an and Hadith, is much
broader and generic than the sense it is commonly used now.
“If the idea of ‘establishing
rules’ is indeed contained in the notion of Shariah (from the root
sha-ra-a), this translation does not convey the fullness of the way
it is understood, unless its more general and fundamental meaning is
referred to: ‘the path that leads to the spring.”11
Proper understanding of the notion of
Shariah is now even more important than ever because the traditional
view about Shariah is failing to meet Muslims’ expectations of
Islam to guide them and solve their problems as well as harmfully
polarizing the society toward extreme positions.
“The weakness of the traditional
construction of Shariah in meeting social expectations stresses the
need for a fresh quest for the normative basis. Consequently, Muslim
views on the position of Shariah in Muslim polity have become
increasingly polarized between secularist and traditionalist
viewpoints”.12
III. What is Shariah? Perceptions and
Misperceptions
Why does the notion of Shariah have
such a commanding hold among traditional as well as revivalist
Muslims, particularly their religious scholars, establishments and
movements? Well, historically it has been central to Muslim
understanding of the relationship between Islam and law.
“Law is the primary religious science
in Islam. Once committed to Islam, the believer’s overriding
concern and question is ‘What do I do; what is God’s will/law?’
Law is essentially religious, the concrete expression of God’s
guidance (Shariah, path or law) for humanity. Throughout history,
Islamic law has remained central to Muslim identity and practice, for
it constitutes the ideal social blueprint for the ‘good society.’
The Shariah has been a source of law and moral guidance, the basis
for both law and ethics. Despite vast cultural differences, Islamic
law has provided an underlying sense of identity, a common code of
behavior, for Muslim societies. As a result, the role of Islamic law
in Muslim society has been and continues to be central issue for the
community of believers.
For the early Muslim community,
following the Shariah of God meant obedience to God’s continuing
revelation and to His Prophet. Issues of worship, family relations,
criminal justice, and warfare could be referred to Muhammad for
guidance and adjudication. Both Quranic teaching and Prophetic
example guided and governed the early Islamic state. With the death
of Muhammad, divine revelation ceased; however, the Muslim vocation
to follow God’s will did not. Knowledge and enforcement of God’s
law were continuing concerns.”13
Of course, the above view of Shariah
and Islamic law is in a more general sense. The practical experience
has been quite complex. This is particularly due to the fact that
while following God’s guidance in the form of laws and codes is
binding, God’s guidance in its comprehensiveness and
definitiveness, as claimed, is not so clear. God’s revelation, as
contained in the Qur’an, did not come to us as a codified manual of
law. These laws require ascertaining and interpretation by fallible
human beings.
“The literal meaning of Sharia is
‘the road to the watering hole,’ the clear, right, or straight
path to be followed. In Islam, it came to mean the divinely mandated
path, the straight path of Islam, that Muslims were to follow, God’s
will or law. However, because the Quran does not provide an
exhaustive body of laws, the desire to discover and delineate Islamic
law in a comprehensive and consistent fashion led to the development
of the science of law, or jurisprudence (fiqh). Fiqh,
‘understanding,’ is that science or discipline that sought to
ascertain, interpret, and apply God’s will or guidance (Sharia) as
found in the Quran to all aspects of life.”14
While God’s guidance is supposed to
lead to a society that reflects better justice, harmony, and balance,
why has the experience to date of the countries experimenting with
Shariah been rather deplorable? It should be noted here that a
pivotal aspect of implementation of Shariah in the abovementioned
four countries is that it has not been done through popular will, but
through the authority and sheer force of the ruling junta or dynasty.
Thus, it is not accurate to say that the notion carries great weight
with the mass.
What happens is that traditional Muslim
mass is deeply attached to Islam, and rightly so. However, consistent
with human nature, which generally seeks freedom, security, peace,
justice and prosperity, the Muslim mass hardly has any problem with
Islam, which in essence is dynamic, progressive and balanced. Muslim
mass wants Islam, but not as a chokehold on them, and they know in
their heart that Islam can’t be either against human nature or
against their interests and aspirations. Thus, for example, Afghani
people have been deeply religious from a traditional perspective.
Religion and faith are dear to their hearts. However, even such
traditional people found the Taliban rule as an unbearable
encroachment on their fundamental human dignity and rights. Pakistan
has been an “Islamic Republic” since its inception, as its people
is also generally very religious and attached to their faith and
tradition. However, the overall society has become greatly
secularized, and some sections more than others, especially as a
reaction to the fanaticism, aggressiveness and rigidity of the
proponents and self-proclaimed guardians/authorities of Islam. There
is an undeniable reality that the Muslim mass does not have the
appetite for the kind of shariah that is being imposed on them from
the top, especially by corrupt and power-grabbing dictators and
monarchies.
However, it must also be acknowledged
that because the Muslim mass has deep attachment to their religion,
anything that is presented to them as divine and thus binding upon
them makes them psychologically and emotionally vulnerable to
acquiescence or even manipulation.
In this context, the notion that
shariah is divine and immutable has great relevance. If it is divine,
then we are to treat the guidance from Allah as sacred, immutable and
thus binding upon us. If something is from Allah, then it can’t be
treated any other way. However, what exactly is divine and what is
meant by shariah? Once we explore this issue in depth, we find rather
striking anomalies and discrepancies.
It is very common to argue that shariah
is divine and immutable. For a detailed presentation of such common
observations, see my survey "What is Shariah? -
Definition/Description potpourri".
“The Shariah includes both faith and
practice. It embraces worship, individual attitude and conduct as
well as social norms and laws, whether political, economic, familial,
criminal or civil. It may also sometimes be used to imply, in a more
restricted sense, do's and don'ts- the rules and regulations for
conduct and behavior. Lastly, it is also used as the equivalent of
the Islamic laws. The Shariah is thus nothing less than the divinely
ordained way of life for man. To realise the divine will, man must
follow the Shariah. To live in Islam is to live according to the
Shariah. To give up the Shariah or any part of it knowingly,
willfully or deliberately is to give up Islam. A Muslim must
therefore do his utmost to observe and to implement the whole of it,
wherever and in whatever situation he finds himself. Hence the Muslim
insistence, persistence, commitment and passion for it.”15
”THE ETERNAL AND UNCHANGING The
Shariah is for all times to come, equally valid under all
circumstances. The Muslim insistence on the immutability of the
Shariah is highly puzzling to many people, but any other view would
be inconsistent with its basic concept. If it is divinely ordained,
it can be changed by a human being only if authorised by God or His
Prophet. Those who advise bringing it into line with current thinking
recognise this difficulty. Hence they recommend to Muslims that the
'legal' provisions in the Qur'an and the concept of the Prophet as
law-giver and ruler should be 'downgraded' . But, as the
manifestation of God's infinite mercy, knowledge and wisdom, the
Shariah cannot be amended to conform to changing human values and
standards: rather, it is the absolute norm to which all human values
and conduct must conform; it is the frame to which they must be
referred; it is the scale on which they must be weighed.16
“Laws are therefore an important and
integral part of the Shariah and, as we have already noted, it admits
of no distinction between its parts: 'to pray' is as valid,
enforceable, obligatory and sacred as 'to consult in collective
affairs' or to 'prohibit interest' or 'to stone an adulterer'.”17
”In Arabic, Shariah means the clear, well-trodden path to water.
Islamically, it is used to refer to the matters of religion that God
has legislated for His servants. The linguistic meaning of Shariah
reverberates in its technical usage: just as water is vital to human
life so the clarity and uprightness of Shariah is the means of life
for souls and minds.”18
“Finally, when mankind had reached
the stage of intellectual maturity and was ready to receive the last
message from Allah Subhanahu wa Ta'ala, Islam came with its complete,
comprehensive, and eternal Shariah (law) for the whole of mankind.”19
“Therefore, when He issued His law,
the Shariah, He made it suitable for all times and communities.
Otherwise, He would have indicated that this law would be subject to
amendment, and would have outlined the procedure for such amendment.
What all this means is that no legislative, executive or judicial
authority has the power to amend God’s law, which must be
implemented in full.”20
“The Shariah is the divinely ordained
code of behaviour that dictates the way of life for mankind.”21
“Since the Kingdom [of Saudi Arabia]
has adopted Islam, in word, deed and belief, as its mode of life, its
society is based on firmly established principles derived from the
provisions of divine revelation, which still constitute the
cornerstone of Islamic civilization. Its system of government is
based on justice, consultation, equality and a desire to ensure the
proper application of the Islamic Shariah in all its aspects.”22
“While shariah law is sacred and
immutable, fiqh is human science.”23
“ ... Shariah is just another name of
Islam and a pattern of thought and action given by Islam, ... It
should also be clear that there are no versions of Islam. It is a
deen revealed by Allah and a way shown to us by the Prophet (peace be
upon him). It is complete code of life and presents solutions to all
matters and the problems of life. ... Islam provides clear and
unambiguous guidance for life.”24
“Shariah = Islamic Law.”25
This equating of Shariah with Islamic
Law is not limited to the laymen, journalists, or demagogues. That it
is so pervasive is evidenced by even works of high scholarship who
are committed to bring about a transformation in Muslim thought
patterns. For example, Imam al-Shatibi’s Theory of the Higher
Objectives and Intents of Islamic Law is a valuable work, introducing
seminal contributions of Imam al-Shatibi. This timely publication of
from a major Islamic institution that has two noble and grand
objectives.
(1)To reform Muslims’ ways of
thinking and to reorder and reformulate their priorities.
(2)To rebuild the Islamic cultural
scheme and to present modern humanistic and social knowledge from an
Islamic perspective.26
A well-known contemporary scholar, whom
I also respect highly, wrote the introduction to the abovementioned
book, in which he mentioned:
The most important and salient means by
which scholars sought to achieve this goal was that of elucidating
the objectives of Islam, the causes behind Islamic legal rulings as
well as the intentions and goals which underlie the Shari’ah, or
Islamic Law.27
Obviously, the above quotations are
more contemporary to our time. One reason for this is that more often
than not, people’s applied efforts are reflection of their
contemporary understanding, regardless of what may have been the
formulations of the past. Another, even more important reason, is
that the later period of classical Islamic discourse does use the
term Shariah, but without explicating it, almost assuming that
everyone knows and understands what it is and what it entails.
“While the Sharia may be defined in a
variety of ways, no definition that seeks to do justice to medieval
Muslim thought can do without the key concept of ahkam, rendered here
as ‘categorizations.’ The Sharia is, first and foremost, the
totality of divine ‘categorizations of human acts’ (al-ahkam fi’l
af’al, al-ahkam al-‘amaliya). The medieval Muslims were in fact
much more concerned with the explication of the concept of a divine
categorization of an act than with the explication of the concept of
the Sharia as such. Indeed, in many of their most renowned writings
one does not find any discussion at all of the latter concept,
whereas discussions of the former typically take up many pages.
Frequently, rather than speaking simply of the Sharia, Muslim
scholars would speak of ‘Sharia categorizations’ (al-ahkam
al-shar’iya).”28
Weiss’ observation about not having
any discussion about the term Shariah in the earliest of renowned
writings is in the context of his book based on the work of the
eminent jurist al-Amidi. Even though there may not have been any
explication of Shariah as a notion in the earliest of classical
discourse, in our contemporary time, the use of this term is
widespread, and below are some of the main points extracted from the
above-mentioned definitions/descriptions of Shariah.
a)Shariah is divine.
b)Shariah is immutable.
c)Shariah is the same as Islam and it
is “complete code of life”.
d)Shariah is the same as Law; others
say it is not.
e)Shariah is enforceable [without any
distinction between prayer or crimes].
f)Shariah [Islam] provides “clear and
unambiguous” guidance for life.
This itemized list can be helpful to
explore and appreciate the understanding and misunderstanding about
shariah. Let us analyze each of these separately.
Is Shariah “divine”?
Let us first ensure that we understand
the word “divine”. According to Merriam-Webster Dictionary, the
word means: “of, relating to, or proceeding directly from God.”29
Is shariah directly from God? The answer to this question depends on
how we define the scope of shariah. For example, if shariah is
equivalent to Islamic law (fiqh), then it cannot be divine. The
reason is indisputably clear: fiqh or Islamic law in its totality is
mostly human construct. Even though one of the usul (source
methodologies), the Qur’an, is regarded by Muslims as divine, the
other sources – hadith, ijma (consensus) and qiyas (analogical
deductions) – are not divine.
To fully appreciate the relevance of
the preceding statement, it is important to understand and
acknowledge some essential aspects of each of the three non-divine
sources. It is important to know that ijma, even if achieved, is a
human construct. However, more importantly, there is hardly anything
on which there is ijma, including even the definition of ijma. Many
scholars do acknowledge that on most things people claim ijma there
is no ijma.
According to Imam Ibn Taymiyah, "...
many problems about which people think that there is ijma on them,
while in fact there is none. Rather in some cases even the opposite
view is correct and is upheld.30
Also ijma is not a source to derive
laws; instead, it is more for validation of a law that is already
derived or formulated by others. Some scholars have elevated the
status of ijma above hadith. And, there are others who have elevated
ijma, quite unacceptably, above all other sources, including the
Qur’an. However, there are also eminent Islamic jurists, such as
al-Amidi, one of the leading scholars of usul al-fiqh, who had to
recognize the “probabilistic” basis of ijma.
“Amidi seems, when all is said and
done, to belong to the camp of those who saw the Ijma as functioning
as a probable indicator of the law, one that could yield nothing more
than opinion. True, he seems, on the issue of the authority of the
Ijma, to try to straddle the fence between the two camps by affirming
the near conclusiveness of the supporting Qur’anic and Sunnaic
texts, especially the latter. But near conclusiveness is not, from a
technical point of view the same thing as conclusiveness, and Amidi
finds himself constrained in the end to let the absolute authority of
the Ijma rest upon probability. This being the case, he has no choice
but to regard the Ijma as actually operating as a probable indicator
dependent upon the fallible deliberations of the individual
mujtahid.”31
For ijma, please read a duly documented
essay of mine “The Doctrine of Ijma': Is there any Consensus.”
For much of Islamic laws, qiyas has
been the most commonly used source. It is acknowledged even by
Islamic jurists and scholars that qiyas is essentially a method of
human reasoning. Of course, the analogical reasoning is applied in
connection with something available in the two primary sources: the
Qur’an and the Sunnah. However, at the end, it is still a human
construct, and thus not divine. It is no wonder that there is hardly
any agreement among (or even within) various schools of jurisprudence
on many such matters of shariah. Thus, most of the output of qiyas
can’t be regarded as divine. For details, please read another duly
documented essay of mine “Qiyas (Analogical Reasoning) and Some
Problematic Issues in Islamic law.”
Even though hadith is regarded as one
of the two primary sources, I wanted to deal with it last in this
context, because it is one of the most sensitive issues. However, a
Muslim is conscientiously duty-bound to approach any such issue in
light of the guidance of the Qur’an and the Sunnah in an objective
manner. The Qur’an is divine, as we believe that it is direct,
verbatim and unadulterated, final revelation from God. However,
hadith is not at the same level of the Qur’an. It is important to
note that what constitutes authentication of hadith, so that we can
separate the sahih (authentic or sound) ones and also be able to
grade or classify the rest, is a human process. Even the criteria or
methodology of authentication is a human enterprise.
Many Muslims might not know that while
Sahih al-Bukhari is the most highly regarded collection of the
Prophetic narrations (and deservingly so), he did not specify what
criteria he used to evaluate a narration and select certain ones for
his collection. Indeed, the compilers of the six major collections
[sihah al-sitta]32 generally have not specified or disclosed their
criteria. Other scholars later have attempted to identify what might
have been their criteria, in a manner of “reverse engineering.”33
“Most of the authors of six principal
books of hadith did not describe their criteria in selecting the
material, except for a sentence here and there, but it is possible to
arrive at some conclusions from their writings. Hazimi and Maqdisi
studied the subject. They studied the qualities of narrators whose
ahadith have been recorded in those books and tried to find out a
general rule. Hazimi says that those scholars had certain criteria in
accepting a narrator whose hadith they were going to record in their
books.”34
The collection enterprise itself was
undertaken several centuries after the Prophet, involving hundreds of
thousands of people. The compilers themselves did not specify the
criteria of authentication. Indeed, the list of authentication
criteria was not identical among the compilers. That’s why, let
alone other collections, the two most highly regarded collections,
Sahih al-Bukhari and Sahih Muslim, have many hadiths that appear in
one, but not in both.
Moreover, hadiths are graded as sahih
(sound), hasan (good), daif (weak) and maudu (fabricated). While
there is a broad agreement on many hadiths that are regarded as
sahih, there are many about which there is no agreement about their
authenticity. Some hadiths are regarded sahih by some scholars, while
not so by others. Also, Bukhari and Muslim being titled as Sahih does
not mean that all the hadiths in those collections are sahih. Also to
be noted is the fact that the authentication methodology of the
compilers does not scrutinize a hadith in terms of its matn (text),
whether the content of any hadith is consistent with the Qur’an,
other hadiths, or established historical facts, etc.
Thus, while the authentication process
and the noble contribution of the hadith scholars have elevated the
hadith literature at a much higher level of acceptability and
reliability, scholars do recognize that unless mutawatir (narrated in
exactly similar words through numerous chains, as contrasted with
ahad - solitary or simply non-mutawatir), even sahih hadith yields
only probabilistic or speculative knowledge, not certainty.
Therefore, hadith literature is a precious treasure for us to benefit
from as a complementary source of guidance, but the human input is
too high to consider it as a divine source. Since the Qur’an has
only a few and most important injunctions covered (and even that, in
general terms), and most of the shariah (laws and codes) are based on
hadith, where hadith is not divine in the sense the Qur’an is, it
is important to understand why any claim that shariah (in a sense
that it is a complete code of life, covering all aspects of life) is
simply wrong and untenable. Indeed, anyone who claims that shariah –
in the sense that it covers the entire spectrum of life for which
sacred and binding laws and codes are already laid out – is making
an erroneous (or worse!) statement. Such a statement can’t be
supported from an Islamic viewpoint.
“The Sharia is ... the totality of
divine categorizations of human acts. But these categorizations have
not, according to the common Muslim view, been precisely spelled out
for the benefit of mankind. True, God has revealed his eternal speech
– an attribute inhering in his very essence – to mankind through
prophets. But when searches through the repositories of divine
revelation, one does not find an abundance of statements of the form
‘X is obligatory’ (or recommended, disapproved, forbidden, etc.).
Instead, one finds a variety of less precise linguistic forms on the
basis of which human scholars must ascertain to the best of their
ability the divine categorizations and then give precise expression
to them. Statements of the form ‘X is obligatory’ are thus, for
the most part, the result of human scholarly effort; they are not
themselves given. What is given is a plethora of highly interpretable
‘indicators’ (adilla) of the divine categorizations. God in his
wisdom has chosen to engage human beings in the toilsome task of
ferreting out the categorizations from these indicators, of
articulating what he himself has not precisely articulated. In this
way he has afforded them greater opportunity for proving their
devotion to him and for attaining favor with him.”35
So, can shariah be divine in any
particular sense? First, if shariah is understood as the Divine Will,
as in the words of one of the leading Muslim scholars of our time
Khaled Abou El Fadl (“eternal unchanging law as it exists in the
mind of God”),36 yes it can and must be regarded as “eternal”,
“immutable,” “divine,” and “infallible.” However, we are
not enabled to read the “mind of God.” God is Eternal,
Infallible, and whatever laws exist in his mind are immutable. But
that is not the case with us as human beings. Even in regard to the
Qur’an, the Book as the final revelation is divine and thus
immutable, but our human understanding and interpretation of the
Qur’an are not divine or infallible.
Unfortunately, Muslim scholars/jurists
rarely offer their thoughts/views/rulings with the relevant
disclaimer. Mufti Muhammad Taqi Usmani, who is also one of the most
coveted experts in the field of Islamic finance, is not generally an
exception. However, in one of his works, there is a rare candor about
the fact that what is human input is not infallible.
... it needs to be realized that
whereas the laws ordained by Allah and His Prophet are sacred and
there is no room for doubts about it, when these laws are codified,
that code of law represents human effort, which is not infallible,
but susceptible to mistake. The drafting of any law is a very
delicate undertaking. All possible situations have to be kept in mind
and provided for in words. Since human intelligence, being limited,
cannot visualize all kinds of circumstances in advance, there is
always the possibility of flaws and weaknesses in any piece of law.
The Hudud Ordinances are no exception. They may suffer from weak
drafting. They may contain some aspects that are in need of review
and improvement.37
The Qur’an is immutable in the sense
that we are not to discard or eliminate any verse of the Qur’an.38
Any specific and explicit injunction of the Qur’an – in the
general sense – is immutable.
For example, fasting is obligatory on
any able-bodied adult Muslims. However, there are only a few verses
about fasting, without any details, which we learn from the Sunnah,
as reflected in hadith. As soon as we go into the details, we see
that there are many divergent, and even contradictory narrations, on
the basis of which, using ijma, qiyas, whenever relevant, the
scholars have derived further details about the rules. Thus, the
disagreements we see among various madhab (schools of fiqh) are the
result of the human element in the process of extracting and
formulating the rules and laws. In this example, that fasting (sawm)
is fard (obligatory) is immutable. No one can claim any longer that
it is not obligatory on able-bodied Muslims. All other details, not
explicitly specified in the Qur’an or established through mutawatir
hadiths are available on only probabilistic basis. That does not mean
that we can’t use those details. Indeed, we can and must. However,
to claim that anything is “divine”, such as Shariah (actually,
the users of that notion mean Islamic laws), while most of which is
human construct, is elevating the threshold for acceptability of it
to an indefensible level.
The bottom line is: the sense in which
shariah is commonly used in terms of its scope and equivalence with
laws covering the entire spectrum of life, where the details of the
laws are derived not necessarily from divine source, but from
semi-divine (hadith)39 and non-divine (ijma and qiyas) sources, is
NOT divine.
There is one other serious negative
ramification of treating Shariah in its comprehensive legalistic
sense as divine. As explained later in this essay based on the works
of al-Amidi, a noted scholar of the classical period, ijtihad, which
constitutes the basis of bulk of Islamic laws in their details yields
only probabilistic knowledge.40 Furthermore, as the works of Ibn
Khaldun contributed to the repository of knowledge of the humanity in
general, inspired by Islam but based on an inductive method,
indicates that at certain level, seeking knowledge and understanding
can’t be limited to merely sacred texts and deduction as a
methodology. Another noted Islamic scholar, al-Shatibi [d. 790 AH]
applied inductive method to develop better understanding of Shariah
from the perspective of intent [maqasid].41 Unfortunately,
text-oriented deductions from sacred texts gradually led to
reductionist legalism.
Is Shariah immutable?
Once again, one must define Shariah to
properly answer this question. If Shariah is used in the common sense
as it is used, and as being promoted by various Islamic movements and
certain countries that attempted (or are attempting) to “implement”
Shariah, it is definitely not immutable. Indeed, according to
Maududi, one of the leading Islamic personalities of twentieth
century, deen (Islam in the generic sense of submission to our
Creator God) is immutable, as it has been constant throughout human
history. However, shariah is not immutable, as there have been
variations in shariah under different messengers, such as Moses,
Jesus and Muhammad (p).
“Now I shall tell you what Shariah
is. The meaning of Shariah is mode and path. When you have
acknowledged God as your sovereign and accepted His servitude and
have also admitted that the Messenger is the tangible ruler holding
authority on His behalf and that the Book has been sent by Him, it
will mean you have entered Deen. ... After this, the mode in which
you have to serve God and the path you have to traverse in order to
obey Him, is called Shariah. This mode and path has been indicated by
God through His Messenger who alone teaches the method of worshipping
the Master and the way to become pure and clean. The Messenger shows
us the path of righteousness and piety, the manner in which rights
are discharged, the method of carrying on transactions and dealings
with fellow-beings and the mode of leading one's life. But the
difference is this that while Deen always was, has been, and is still
one and the same, numerous Shariahs came, many were cancelled,
several were changed but these alterations did not change the Deen.
The Deen of Noah was the same as that of Abraham, Moses, Jesus,
Shuaib, Saleh, Hud and Muhammad ( peace be on them) but the Shariahs
of these Prophets varied from each other to some extent. The modes of
saying prayer and observing fast were of one kind with one prophet
and of another kind with the other. Injunctions about Halal and
Haram, rules of cleanliness and codes of marriage, divorce and
inheritance somewhat differed from one Shariah to another. In spite
of this, all were Muslims---the followers of Noah, the followers of
Abraham, the followers of Jesus and those of Moses, and we too are
all Muslims because Deen is one and the same for all. This shows that
Deen is unaffected by differences is the rules of Shariah. Deen
remains one though modes of following it differ.”42
The above view is consistent with the
Qur’an.
The same religion [deen] has He
established for you as that which He enjoined on Noah - the which We
have sent by inspiration to thee - and that which We enjoined on
Abraham, Moses, and Jesus: Namely, that ye should remain steadfast in
religion, and make no divisions therein: to those who worship other
things than Allah, hard is the (way) to which you call them. Allah
chooses to Himself those whom He pleases, and guides to Himself those
who turn (to Him). [42/ash-Shura/13]
Thus, often when we come across
assertions that Shariah is immutable or eternal, it is nothing but
vacuous, emotional, unscrupulous and indefensible statements. This
understanding is reflected in the historical development of Shariah
or Islamic law as a rigid body of theological dogmas and legal codes.
“By the tenth century, the basic
development of Islamic law was completed. The general consensus
(ijma) of Muslim jurists was that Islamic law (Islam's way of life)
had been satisfactorily and comprehensively delineated in its
essential principles, and preserved in the regulations of the law
books or legal manuals produced by the law schools. This attitude led
many to conclude that individual, independent interpretation
(iitihad) of the law was no longer necessary or desirable. Instead,
Muslims were simply to follow or imitate (taqlid) the past, God's law
as elaborated by the early jurists. Jurists were no longer to seek
new solutions or produce new regulations and law books but instead
study the established legal manuals and write their commentaries.
Islamic law, the product of an essentially dynamic and creative
process, now tended to become fixed and institutionalized. While
individual scholars like Ibn Taymiyya (d. 1328) and al-Suyuti (d.
1505) demurred, the majority position resulted in traditional belief
prohibiting substantive legal development. This is commonly referred
to as the closing of the gate or door of iitihad. Belief that the
work of the law schools had definitively resulted in the
transformation of the Sharia into a legal blueprint for society
reinforced the sacrosanct nature of the tradition; change or
innovation came to be viewed as an unwarranted deviation (bida) from
established sacred norms. To be accused of innovation-deviation from
the law and practice of the community-was equivalent to the charge of
heresy in Christianity.43
While a good part of the traditional
Islamic segment has elevated Shariah in general to a sacrosanct level
and understood and treated it as immutable, many Islamic jurists also
have recognized the principle that a vast portion of Shariah is
changeable subject to time and place. This principle is: “Rulings
change according to time and place.”44 Indeed, some Islamic jurists
and scholars, even parallel to the regime of taqlid, have always
continued the legacy of ijtihad in their pursuit of keeping the laws
and codes relevant to the contemporary times. Islamic jurists of our
contemporary times, who are in tune with the modern challenges, are
also trying diligently to bridge the gap between the laws and the
reality, where immutability at the broader or detailed level simply
can’t be considered tenable. Indeed, the dynamism of Islamic law
has been the hallmark of even the period of the companions of the
Prophet. At the level of applied details, the sunnah is not
immutability, but just the opposite. Ibn Qayyim shares an
illuminating perspective on this important matter.
“Omar ibn al-Khattab judged [in a
case in which] a woman died and left her husband, her mother, two
full brothers and two half brothers from her father, and decided to
distribute the third of her inheritance between all the full as well
as half brothers. A man said to him [i.e., to Omar] ‘you did not do
the same in the year so and so.’ Omar replied: ‘that [decision]
was according to what we had judged then and this [decision] is
according to what we are judging today.”45
Is Shariah the same as Islam and is it
a “complete code of life”?
Based on what is already presented
here, Shariah is not the same as Islam. Interestingly, the comment
“Shariah is just another name of Islam,” is by Khurshid Ahmad,
one of the protégés of Maulana Maududi. The latter had a different
view, as explained above. According to Maududi, the Deen [Islam] has
been constant for all people; however, Shariah has not been. Thus, in
this statement, Khurshid Ahmad is either disagreeing with Maududi, or
it is just one of those emotional rhetoric without being adequately
careful in one’s articulation.
Is Shariah a “complete code of life?”
Once again, it is important to first determine what such statements
mean.
“Islam establishes a clear system of
worship, civil rights, laws of marriage and divorce, laws of
inheritance, code of behavior, what not to drink, what to wear, and
what not to wear, how to worship God, how to govern, the laws of war
and peace, when to go to war, when to make peace, the law of
economics, and the laws of buying and selling. Islam is a complete
code of life.”46
“There are two major reasons as to
why Islam becomes an easy target for the western media when compared
to other religions. The first reason is that Islam provides a
complete code of life and it is for this reason that every action of
a Muslim is attributed to his religion.”47
“During the seventies, Islamic
Development Bank (IDB) and a number of Islamic banks at national
levels were established in the Islamic world. At home, the Islamic
groups were vigorously working for adoption of Islam as the complete
code of life.”48
“Islam is a complete code of life and
its implications are expanded to all walks of life. It is a belief, a
tradition, acts of worship, as well as a code of socio-economic and
political activities to ensure peace and socio-economic justice for
the Muslims and non-Muslims alike.”49
“The distinguishing factors in the
Muslim context are (a) the frequent resort to religion as
self-evidently valid premises for (usually discriminatory) laws, and
(b) the symbiotic relationship the religion of Islam has developed
with Muslim jurisprudence. This relationship is exemplified by the
common and frequent assertion by Muslims that "Islam is a
complete code of life" to suggest that all legal matters have
already been determined by religion. Clearly neither the basic text
of Islam, the Qur'an, nor even the hadith (practices and traditions
of the Prophet) are legal codes, though prescribed in both are
suggested codes of behavior. As one of the most important disciplines
to emerge in Islamic scholarship, however, jurisprudence has
dominated Islamic scholarship to the point that today a well known
Muslim scholar, Syed Hossein Nasr, can assert ‘The Shariah is the
Divine Law by virtue of accepting which a person becomes a Muslim.
Only he who accepts the injunctions of Shariah as binding upon him is
a Muslim.’”50
What stands out from the above
statements about Islam being a “complete code of life” is that
Islam has guidance for the entire spectrum of life and, in some
cases, it is implied that there is already ready (or easily and
quickly deducible) solutions for every issue, situation, or problem
human beings might encounter. Another implication is that since Islam
is a self-contained, self-sufficient way of life, Muslims must not
turn to any other source for guidance or solutions.
“As Islamic law is a comprehensive
and interrelated unit, the application of its various branches is
subject to a single standards, i.e. Islamic law does not accept the
application of different sets of standards to its different
branches.”51
It should be pointed out that life is
an integrated whole and therefore in dealing with the issues and
problems of life in an integrated fashion, the notion of “complete
code of life” is very appealing, as people can’t simply borrow
capitalism for the economy, democracy for politics, nationalism for
galvanizing a society, etc. as interchangeable components to come up
with our own cocktail ideology or system.52 For the sake of
consistency and balance, Islam does provide the essential guidance to
deal with life as an integrated whole. However, to stretch it that
Islam is an already formulated manual for every problem or issue
Muslims or people may encounter is simply not correct.
Another implication, though often not
stated, is that all the problems and issues are already identified
and the solutions are also specified in the textual sources or have
been worked out by the scholars. From this perspective, there is
neither any need nor any relevance of learning anything from others.
All the social, economic, educational, political problems, or
whatever problem (except scientific, technological, engineering type)
one can conceive of, only thing one needs to do is turn to the
primary Islamic texts (the Qur’an and hadith), or the books of
scholars and jurists, or just contact any fatwa council or hotline,
and the solution would be available.
The reality is not so. One has to
wonder as to why the condition of the Muslim world is so miserable
and deplorable, if both problems and solutions are known or easily
deducible. A fundamental pitfall of Muslim thought has been
text-orientation.53 If we want to understand how God originated his
creation, we are not supposed to turn to and bury our head in the
books. It is the command of God: "Say: 'Travel through the earth
and see how Allah did originate creation; so will Allah produce a
later creation; for Allah has power over all things'"
[29/al-Ankaboot: 20] The commandment is not “read the sacred or the
right books”, but to “travel ... and see”. However, our
so-called Shariah scholars kept us glued to the texts, while the
world of science moved on, leaving us way behind. If we are to
understand and appreciate the power and glory of God as reflected in
the nature, we are not merely supposed to be book oriented. Instead,
we are commanded to look up (explore) the sky/space.
“[Hallowed be] He who has created
seven heavens in full harmony with one another: no fault will you see
in the creation of the Most Gracious. And turn your vision [upon it]
once more: can you see any flaw?
Yea, turn your vision [upon it] again
and yet again: [and every time] thy vision will fall back upon thee,
dazzled and truly defeated…” [67/al-Mulk/3-4]
Well, once again, as we became more
Shariah-oriented, we did not listen to the command of God. Instead,
we buried our heads in books. We read more books and wrote more books
about earlier books. The result is predictable. Now we are blissfully
(?) living our life supposedly guided by the “complete code of
life”, while using all those guidance, we are essentially going
nowhere. Indeed, those countries that have been promoting Shariah in
its commonly (mis)understood sense are now facing unrest and lack of
confidence from their own people. It is a fundamental problem with
our mindset.54
In this context, the problem lies with
the static understanding of Islam, where the textual sources and its
experts/scholars are regarded as a “dictionary” of solution. Just
as one looks up words in dictionaries, people should just open the
right page and look up what they need, as all the words one may need
are already there. In reality, Islam is not like a dictionary;
rather, it is like an alphabet. Many words are already available to
be looked up from the dictionary. But also there are many words that
need to be constructed or formed based on the alphabet. When Islam as
a “complete code of life” is understood in the sense of
dictionary, the result would be predictable that we will be
fossilized as we are in the past frames of history. When we
understand “complete code of life” in the sense of alphabet
(essential principles or building blocks), we can have a dynamic
approach and outcome to deal with our issues and challenges as they
unfold. From that perspective, yes, the Qur’an can be the source
for the essential guidance for the solutions we seek. As Shatibi
explained:
“... experience shows that every
‘alim who has resorted to the Qur’an in search of the solution to
a problem has found in the Qur’an a principle that has provide him
with some guidance on the subject.”55
Is Shariah the same as Law?
As already cited earlier, one of the
most common confusions about Shariah is that it is considered
synonymous with “law” and in that sense, no distinction is
maintained between Shariah and fiqh. Just as one of the sources put
this in an equation form (Shariah = Islamic Law), the underlying
misunderstanding and misperception are quite widespread.
“Under the rules of Islamic Law
(Sharia), companies are divided into two main classes: ...”56
“At HSBC, we constantly strive to
provide financial solutions that meet the requirements of our
customers around the world. HSBC Amanah offers Islamic banking
solutions which combine our financial expertise with your enduring
values. Now customers can experience the global coverage and
convenience of banking with HSBC without compromising the principles
of the Shariah (Islamic law).”57
“The term Shariah refers to Islamic
law as revealed in the Qur'an and through the example of the Prophet
Muhammad (peace be upon him).”58
“Sheikh Taqi Usmani is considered the
pioneer in his field and heads the Shariah (Islamic law) boards of
banks such as HSBC and CitiBank.”59
“fiqh: lit. understanding or
perceptiveness; the science of the divine law, the sum of man’s
knowledge of the Shari‘a, Islamic law or jurisprudence”60
This equation between Shariah and
Islamic law constitutes one of the most profound confusions about
Islam, as some people are trying to implement Islam on the basis of
this confusion. If Shariah pertains to the entire spectrum of life,
then it is not all law. For example, matters pertaining to ablution,
prayer, fasting, etc. are not all matters of law. Turning every
aspect of Islamic guidance into laws is simply inconsistent with
Islam.
“Generally, when scholars in the
field of Islamic studies speak of ‘Islamic law,’ it is presumed
that they are talking about what is called in Arabic al-shari’a, or
al-shar’a. Indeed, they frequently speak simply of ‘the Shari’a,’
or use the terms ‘Islamic law’ and ‘the Shari’a’
interchangeably. However, it is something of an oversimplification to
equate Shari’ah with law. The Shari’a may indeed be said to
contain law, but one must also recognize that it embraces elements
and aspects that are not, strictly speaking, law.”61
Indeed, that Islam is much broader and
that Shariah is not just law are clear from the Qur’an.
“Thus we put you on the (right) Way
of Religion [i.e. shariatim min al-amr]: so follow that (Way), and
follow not the desires of those who know not.” [45/al-Jathiya/18]
Interestingly, this is the only place
in the Qur’an where the exact word Shariah has been used and it is
in a generic sense, much broader than law. Moreover, this is a verse
from Meccan period, when there were neither laws or codes nor
obligatory rituals. Abdullah Yusuf Ali clarifies in his Commentary:
“Shariah is best translated the
‘right Way of Religion’, which is wider than the mere formal
rites and legal provisions, which mostly came in the Medina period,
long after this Meccan verse had been revealed.”62
The clarification of Umar Ibn Abdul
Aziz in a letter to Adi bin Adi is illuminating, because he even
distinguished shara’ii from faraid, hudood and sunnah. He did not
use the exact word Shariah, but obviously he did not lump up all
those aspects under one label of Shariah.
“Umah bin Abdul Aziz wrote to Adi bin
Adi, ‘Belief includes faraid (enjoined duties), shara’ii (laws),
hudood and sunna. And whoever follows all of them has complete belief
and whoever does not follow them completely, his belief is
incomplete.”63
Imam Shatibi [790 AH] did not equate
Shariah with Islamic law.
“Imam Shatiby, a Maliki jurist, in
his magnum opus, al-Muwaffaqat fi Ushul al-Shariah, elaborates about
the general framework of Sharia. He contends that within Sharia there
are variants that should be understood comprehensively among others:
law, ultimate goal of Sharia, textual justification (dalil), and
ijtihad. It means that sharia should not be understood just as a law.
...”64
Indeed, as Lily Zakiyah Munir, a
leading Indonesian Muslim human rights activist and Islamic scholar,
explains, the Qur’an itself is not a manual of law.
“The Qur’an calls itself al-huda,
or guidance, not a code of law. Out of over 6200 ayat, less than one
tenth relate to law and jurisprudence, while the remainder concerned
with matters of belief and morality, the five pillars of the faith
and a variety of other themes. Its ideas of economic and social
justice, including its legal contents, are on the whole subsidiary to
its religious call. There are close to 350 legal ayat in the Qur’an,
most of which were revealed in response to problems that were
actually encountered. Some were revealed with the aim of repealing
objectionable customs such as infanticide, usury, gambling and
unlimited polygamy. Others laid down penalties with which to enforce
the reforms that the Qur’an had introduced. But on the whole, the
Qur’an confirmed and upheld the existing customs and institutions
of Arab society and only introduced changes that were deemed
necessary.”65
Despite the fact that legal verses
constitute a rather small portion of the Qur’an, often legalism
reduces the Qur’an to laws.
“It is not surprising that fiqh is
often viewed as representation of the religion itself. The role of
fiqh, therefore, changes up and down in line with the inclining and
declining role of the religion in the state. In countries imposing
formal sharia, fiqh has a big authority in regulating human life as
individuals, as part of the society, and in their relation with God.
On the contrary, in a secular country fiqh is internalized more as
regulating human relation with God.
Fiqh is often mixed up and confused
with sharia. The latter is comprehensive, the Way ordained by God,
embracing all from moral and ethical values, theology, spiritual
aspiration, to formal ritual worships. ... it is clear that fiqh is
actually a part of sharia.”66
Anyone who believes that God is the
Most Merciful and the Most Gracious and he has sent us guidance to
benefit from would like to receive maximum benefit from the guidance.
However, turning everything into a matter of law unacceptably adds a
level of burdensome rigidity to life that is not consistent with
fitra (innate human nature). That’s why the Qur’an asks the
believers to focus on avoiding the big sins [kabair]. That does not
mean that people should take other sins lightly, but everything is
not a matter of law.
"If you (but) eschew the most
heinous of the things which you are forbidden to do, We shall expel
out of you all the evil in you, and admit you to a Gate of great
honor." [4/an-Nisa'a/31]
“Narrated Abu Hurairah: The Prophet
(p), "Leave me as I leave you, for the people who were before
you were ruined because of their questions and their differences over
their prophets. So, if I forbid you to do something, then keep away
from it. And if I order you to do something, then do of it as much as
you can." [Sahih al-Bukhari, Vol. 9, #391].
Does that sound like everything of life
is a matter of law? Is the notion of law compatible with doing “as
much as you can”?
Narrated Abu Huraira: The Prophet said,
"Religion is very easy and whoever overburdens himself in his
religion will not be able to continue in that way. So you should not
be extremists, but try to be near to perfection and receive the good
tidings that you will be rewarded; and gain strength by worshipping
in the mornings, the nights." [Sahih al-Bukhari, Vol. 2, #38]
Indeed, the Qur’an exhorts us to take
lesson from the Children of Israel, because they turned the God’s
guidance into legalism and ritualism.
“The Jewish nation was in the grip of
legalism and ritualism. Their superabundant ordinances, in the words
of the Qur'an, had become halters and shackles hindering a healthy
development of moral as well as physical life.”67
Indeed, reducing Islam or Shariah to
merely fiqh or Islamic law has serious ramifications, as observed in
the context of those countries trying to “implement” the Shariah
in its narrow, legalistic sense.
“The comprehensive sharia is often
narrowly understood, just as fiqh. Demands for formal sharia in
several regions in Indonesia, for example, in reality is no more than
the application of fiqh. When formal sharia has been agreed upon, the
first action taken is to impose the obligation to wear head scarf
(jilbab) for women, flogging, or hand chopping, and other rules that
can be explicitly found in the texts. More significant problems
detrimental to the lives of the majority like corruption, women
trafficking, or business monopolies are not viewed as part of sharia
just because these issues are not found in the texts.
This misconception has a significant
effect to the way Muslims internalize the religion. When Islam is
represented as sharia and sharia is understood just as formal rules,
consequently, Islam is internalized just as a formal dogma. Physical
dimension of the religion is prioritized over its spirituality.
Pillars of Islam like prayer (salat), fasting (saum), alms (zakat),
or haj are also reduced to mean just as ritual worships. During the
Prophet’s life these teachings had the power as a social movement
with effect for social transformation. The dominant textual approach
to Islam has restricted the religion’s power and scope, because
texts cannot respond directly to the prevalent problems faced by
Muslims such as modern sophisticated crimes and corruption.
Fiqh or shariah understood just as fiqh
is not the whole of Islam itself.”68
One source of confusion, unfortunately
added by Muslims themselves, is recognizing the comprehensive nature
of life and Islamic teaching, the implementation is not merely by an
external authority. Much of what we apply as Shariah is at our
personal levels.
“In Europe and in North America, as
soon as one pronounces the shahada, as soon as one ‘is Muslim’
and tries to remain so by practicing the daily prayers, giving alms,
and fasting, for example, or even simply by trying to respect Muslim
ethics, one is already in the process of applying the Sharia, not in
any peripheral way but in its most essential aspects.
This practice and moral awareness are
the source and heart of the Sharia, which is personal, faithful
commitment. Beyond that, the Way itself exerts its own influence more
comprehensively, with regard to the guidance of existence, even if
not in the same way, and we must mention this essential factor here,
with respect to the methodologies, norms and details of application
of various regulations. This characteristic of Islam is contained
within the concept of shumuliyat al Islam, ‘the comprehensive
character of Islamic teaching.’”69
Is Shariah enforceable (in its full
spectrum)?
When one hears about “implementation
of shariah,” it is usually in the sense of laws that are
enforceable. Indeed, the most immediate manifestation of such
implementation is “enforcement” of penal codes pertaining to
Hudood, specific punishments prescribed for certain offenses (murder,
adultery, theft, etc.). As explained here already, the “shariah =
Islamic Law” equation is erroneous, because Islam in its
comprehensiveness of guidance covers not just laws, but also values,
principles, rituals, etc. Not all aspects of Islam are enforceable by
any worldly authority.
Readers might recall the statement of
Khurram Murad cited earlier: “Laws are therefore an important and
integral part of the Shariah and, as we have already noted, it admits
of no distinction between its parts: 'to pray' is as valid,
enforceable, obligatory and sacred as 'to consult in collective
affairs' or to 'prohibit interest' or 'to stone an adulterer.”
This is a grossly erroneous notion
about Islam. Yes, since Muslims are to live in a society, there would
be laws and the primary source of these laws would be the Qur’an
and Sunnah, but life is more than legal precepts. In somewhat
uncharacteristic and rare fashion, Mufti Muhammad Taqi Usmani, a well
known contemporary jurist remarks:
“Besides providing legal means for
discipline, Islam also provides non-legal teachings for the reform of
society, which greatly help in curbing crimes. This implies that an
Islamic state cannot absolve itself of its duties by just enforcing
the hudud ; it is also responsible for creating an atmosphere that
discourages the incidence of crime in the first place.”70
Of course, not all this “creating an
atmosphere” involves “enforcement. Indeed, Hudood deals with
transgressions. What about the duties or obligations? One might like
to ask Murad as to what would be the punishment of a Muslim who
refuses to pray? Well, Murad wasn’t saying anything on his own,
because some Islamic jurists have made it unlawful (and punishable)
if a Muslim does not pray or refuses to pray.
“In an Islamic state, Taarik
as-Salaat (intentionally avoiding prayers) will be asked to
explain why is he doing it? If he persists in his habit of not
praying then Imam Malik and Shafi'i say that he should be killed.
Imam Abu Hanifa says that he should be warned of dire consequences
first, then imprisoned if he continues not to pray until he makes
taubah or dies in the prison.”71
Apparently, the constitution of
Mauritania, an Islamic Republic, has provision for capital punishment
for any Muslim who refuses to pray.
“If a Muslim is found guilty of the
crime of apostasy, either through words or through actions, he will
be asked to repent during a three day period. If he has not repented
within this time limit, he will be sentenced to death as an apostate
and his property will be seized by the Revenue office. Every Muslim
who refuses to pray will be asked to comply with the obligation to
pray within the prescribed time limit. If he persists in his refusal,
he will be punished by death.”72
However, is there anything in the
Qur’an that justifies or sanctions such punishment for even refusal
to pray? Does it really make any sense to force someone to pray? Does
God want prayer and worship from such people under compulsion?
If it had been thy Lord's will, they
would all have believed,- all who are on earth! Will you then compel
mankind, against their will, to believe! [10/Yunus/99]
Let there be no compulsion in religion:
Truth stands out clear from Error: whoever rejects evil and believes
in Allah has grasped the Most Trustworthy [2/al-Baqarah/256]
Is God really interested in enforcing
even prayer and fasting by turning a society into a police state? Is
that what is indicated by the preceding two verses that disavow any
compulsion in religion? Indeed, in other places, the Qur’an is more
categorical that, let alone being an enforcer, the Prophet is not
even a watcher.
“[O Prophet!] You are not one to
manage (men's) affairs.” [88/al-Ghashiyah/22]
“Your duty is to convey the Message;
...” [3/Ale Imran/20]
“Obey Allah, and obey the Messenger,
and beware (of evil): if ye do turn back, know ye that it is Our
Messenger's duty to proclaim (the message) in the clearest manner.”
[5/al-Maidah/92]
“The Messenger's duty is but to
proclaim (the message).” [5/al-Maidah/92]
“thy duty is to make (the Message)
reach them: it is our part to call them to account.”
[13/al-Raad/40]
“The worshippers of false gods say:
"If Allah had so willed, we should not have worshipped aught but
Him - neither we nor our fathers,- nor should we have prescribed
prohibitions other than His." So did those who went before them.
But what is the mission of apostles but to preach the Clear Message?”
[16/an-Nahl/35]
"Obey Allah, and obey the
Messenger. but if ye turn away, he is only responsible for the duty
placed on him and ye for that placed on you. If ye obey him, ye shall
be on right guidance. The Messenger's duty is only to preach the
clear (Message). [24/an-Nur/54] “
“If then they run away, We have not
sent thee as a guard over them. Thy duty is but to convey (the
Message). “ [42/ash-Shura/48]
There are even more verses repeating
the same reminder to the Prophet.73 One can’t but ponder (and
ponder hard) as to why God has reminded so repeatedly this particular
matter? And, is the lesson of these verses unclear or ambiguous? If
the Prophet’s mission is no more than conveying the message, or
that he is not manager (musaitir) over our affairs, then is our duty
as his followers any greater or broader?
Does that mean that Islam does not have
anything to enforce? Does it mean that at the social or collective
level, Muslims are not held accountable for anything in this world or
no authority has any regulatory or supervisory role? Indeed not.
Quite the contrary, any normal, functioning society would have laws,
and laws are meaningless if it has no enforceability. However, the
issue of enforcement primarily pertains to areas involving mutual
rights of each other in this world. For example, zakat is not just a
worship of God, it is also related to a right of the poor over those
on whom zakat is due. A society respectful of Islam would enforce the
obligation to pay zakat. Similarly, murder, assault, adultery,
gambling, alcohol, etc. are many areas that have social implications
and there would be laws to enforce in this regard. However, there are
also broad areas, especially pertaining to personal matters,
including ritual worship of God, that are not within the scope of
enforceability with any penal codes. That would be contradicting the
above-mentioned verses about the mission of the Prophet, and
constitute turning Islam on its head. Such a tendency or
misunderstanding is unfortunate, but it is widespread and prominently
reflected in the minds of the contemporary jurists or body of
jurists. Consider the following statement of Islamic Fiqh Academy
based in Jeddah, Saudi Arabia.
Resolution N48 (10/5): Concerning
Enforcement of Sharia Rules:
”The prime duty of the authority in charge of Muslims affairs is to enforce Shari'a. The Council URGES the Governments of all Islamic countries to implement the Islamic Shari'a and conform fully, entirely and lastly to it in all fields of life. The Council CALLS UPON the Muslim countries, individuals, peoples and states, to conform to the requirements of the religion of God and enforce Shari'a, since this religions is a belief as well as a legal system, a code of conduct and a way of life.”74
”The prime duty of the authority in charge of Muslims affairs is to enforce Shari'a. The Council URGES the Governments of all Islamic countries to implement the Islamic Shari'a and conform fully, entirely and lastly to it in all fields of life. The Council CALLS UPON the Muslim countries, individuals, peoples and states, to conform to the requirements of the religion of God and enforce Shari'a, since this religions is a belief as well as a legal system, a code of conduct and a way of life.”74
Quite remarkably, these jurists
understand Shariah only in terms of enforcement and it is not
surprising that it has bred and fostered a general legalistic
attitude and understanding about Islam among Muslims.
Much of the problems associated with
implementation of shariah are related to an enforcement-mentality
that goes beyond the normal or acceptable realm of enforcement. When
a society is turned into a police state and the public authorities
become coercive in implementation of laws that are not within the
naturally acceptable domain, such societies cannot sustain in the
long run. Taliban approach was illustrative of the
enforcement-mentality, and they made the life of their own people
miserable. Afghan people do understand the American motive and
interest, but how many Afghanis want the return of the Talibans?
Does Shariah provide “clear and
unambiguous” guidance for the entire spectrum of life?
An answer to this question in
affirmative would be more comforting, but unfortunately, that is not
the case. One of the reasons some believers are too eager to
“implement” shariah is because they believe that definitive,
authoritative and effective solutions to all pertinent problems are
already available in Islam like a manual of solutions. This is a very
simplistic view, not in accord with the reality.
What Qur’an offers are wisdom,
exhortation, reflections about the past, as well as do’s and don’ts
in some key areas. In matters of injunction, the Qur’an is explicit
and categorical. However, its implementation is not as easy as one
might think, unless one uses a straightjacket approach that often
leads to results contrary to the intent of Islam
Consider the following examples. The
Hudood Laws in Pakistan, promulgated under a military dictator, have
caused many female victims of rape to be imprisoned and incarcerated.
Imagine, thousands of women being imprisoned or prosecuted under
shariah law, even though they were rape victims.75 How can such
perversion be even possible? A common incidence in many Muslim
societies is that a man, unilaterally and without being required to
provide any reason, divorces his wife through instant triple-talaq,
and the wife is out of the house. The process of divorce as
prescribed by the Qur’an is wise, balanced and sensitive to factors
pertaining to both spouses. However, shariah (confused with Islamic
laws) has validated the unislamic practices in divorce. Of course,
instant triple-talaqs is contrary to the Qur’an and there is no
sanction for it from the Prophet. Yet, Islamic laws, or at least some
schools, have validated it.
Witness is required in Islam for many
situations in life. However, about the requirement of a witness in
terms of qualification and context, there are broad disagreements.
Riba (usually equated with interest) is categorically prohibited in
the Qur’an. However, if one considers the hadiths about the six
commodities, one can’t be but amazed at the amazing divergences in
juristic opinions that are often irreconcilable.76
Have we settled how to determine the
beginning or end of Ramadan? Even after fourteen centuries, have we
come to an agreement as to how many units of prayer for Tarawih in
Ramadan? Even a single school of thought has so much difference of
opinions. Just look up Hidaya, one of the most authoritative texts of
Hanafi jurisprudence. It is based on primarily the opinions of the
three elders of the school, Imam Abu Hanifah and his two disciples
Muhammad and Abu Yusuf. One can’t but be surprised to see how much
difference existed among just three of these jurists within their own
school.77
One of the reasons why there has been a
continuing need for ijtihad is because all the answers/solutions to
all the questions/problems are not already identified or worked out,
let alone clearly and unambiguously. In Islamic jurisprudence (usul
al-fiqh) it is recognized that that, even though ijtihad is an effort
based on divine guidance and other secondary sources, the knowledge
derived is probabilistic. I will cite here works from two well known
sources: Abu al-Husayn Ali otherwise known as al-Amidi (d. 631 AH)
and Mohammad bn Ali Al-Shawkani (d. 1255 AH). Al-Amidi’s was one of
the great scholars from among the mutakallimun and his book is based
on four earlier major works on usul al-Fiqh: al-‘Ahd, Al-Mu’tamad,
al-Burhan and al-Mustasfa. Muhammad bin Ali al-Shawkani is from a
much later generation, but his work, especially Nayl al-Awtar, has
earned great reputation among all the four schools of jurisprudence.
According to al-Amidi and al-Shawkani, ijtihad can be understood as
the overall exertion of a jurist in order to infer or deduce, with a
degree of probability, the rules of shariah from their detailed
evidence (dalil; pl. adillah) in the sources.78
Unfortunately, as much as we would like
to have everything clear, definitive and authoritative, the reality
is not so. However, when we still insist on authoritativeness and on
the basis of our presumed authoritativeness, we want to “implement”
a scheme for the people, things can get rough. Islam should be clear
and simple, and in its basic injunctions and prescriptions Islam is
clear and unambiguous. However, one won’t get that from shariah in
the sense of comprehensive Islamic laws with hair-splitting details.
Since the vast corpus of Islamic laws
are based on ijtihad, based on juristic exertions to “infer or
deduce, with a degree of probability,” it is no wonder that there
is a wide range of disagreements at the inter-madhab as well as
intra-madhab level.79 Thus, readers can decide for themselves whether
any sweeping, unqualified or immodest claim - in all its
comprehensiveness, shariah offers “clear and unambiguous”
guidance - is Islamically defensible.
IV. Legalism and its implications
Religions are in general vulnerable to
legalism and other religions also have had to contend with it.
“Religions in general and
Christianity in particular have seemingly forever waged warfare with
ideologies (-ism’s) from without, ranging from Gnosticism to
communism and beyond. More persistent threats, perhaps, come
from what I call ‘ism’s within.’ One of those is
legalism.
Legalism, at one time or another, in
one form or another, seems to blight every major faith. One
essential function of any religion is to provide a code of conduct.
Legalism attempts to solve this need by specifying, in great detail,
just what behaviors (and prohibitions) are required of the
individual.”80
Indeed, one of the essential aspects of
Christianity, as reflected in the struggle of Jesus, was the legalism
to which the followers of Moses fell victim. Jesus directed the
sharpest of his criticism against the dehumanized legalism of the
Pharisees, as law must not be delinked from its underlying spirit.
“Woe to you, teachers of the law and
Pharisees, you hypocrites! You give a tenth of your spices—mint,
dill and cumin. But you have neglected the more important matters of
the law—justice, mercy and faithfulness. You should have practiced
the latter, without neglecting the former.” [Matthew 23:23]
Jesus’ denunciation of the Pharisees
was not directed against law in general, but against legalism.
Unfortunately, Christianity modulated to the other extreme by freeing
itself virtually from all laws, even though Jesus himself affirmed
that he did not come to break the laws, but to fulfill.81
Islam also does not shun law or legal
matters in general, because a society can’t thrive or even function
without an effective legal system. However, laws should not be
considered in isolation, as those should be rooted in and connected
to the human consciousness and conscience. That’s why Islam does
provide some legal injunctions and a guiding framework for meeting
the legal needs of a healthy and dynamic society. But at the same
time, it also categorically reminds people that they must not lose
sight of the underlying spirit and sense of purpose.
“It is not righteousness that ye turn
your faces Towards east or West; but it is righteousness- to believe
in Allah and the Last Day, and the Angels, and the Book, and the
Messengers; to spend of your substance, out of love for Him, for your
kin, for orphans, for the needy, for the wayfarer, for those who ask,
and for the ransom of slaves; to be steadfast in prayer, and practice
regular charity; to fulfill the contracts which ye have made; and to
be firm and patient, in pain (or suffering) and adversity, and
throughout all periods of panic. Such are the people of truth, the
Allah-fearing.” [2/al-Baqarah/177]
After the extremism of Judaic legalism
and the Christian abandonment of law, the Prophet Muhammad brought
back the same essential message God has revealed from the beginning
of humanity, with strong emphasis on moderation and balance.
“Thus, have We made of you an Ummat
justly balanced (ummatan wasat), that ye might be witnesses over the
nations, and the Messenger a witness over yourselves; and We
appointed the Qibla to which thou wast used, only to test those who
followed the Messenger from those who would turn on their heels (From
the Faith). Indeed it was (A change) momentous, except to those
guided by Allah. And never would Allah Make your faith of no effect.
For Allah is to all people Most surely full of kindness, Most
Merciful.” [2/al-Baqarah/143]
That’s what became the primary merit
and attraction of Islam. Islam was and is simple and easy. That’s
what one learns from the Qur’an and the Prophet.
“ ... Allah intends every facility
for you; He does not want to put to difficulties.”
[2/al-Baqarah/185]
“God desires to lighten things for
you, for the human being has been created weak.” [94/an-Nisa/28].
To keep things easy and simple for
people was one of the important concerns of the Prophet.
“Narrated Anas bin Malik: The Prophet
said, "Facilitate things to people (concerning religious
matters), and do not make it hard for them and give them good tidings
and do not make them run away (from Islam)." [Sahih al-Bukhari,
Volume 1, Book 3, #69]
Muslims, who were only two concerned
about doing things right, were assured by the Prophet to take it
easy.
Narrated 'Abdullah bin 'Amr bin Al-As:
While the Prophet was delivering a sermon on the Day of Nahr (i.e.,
10th Dhul-Hijja-Day of slaughtering the sacrifice), a man got up
saying, "I thought, O Allah's Apostle, such-and-such a thing was
to be done before such-and-such a thing." Another man got up,
saying, "O Allah's Apostle! As regards these three (acts of
Hajj), thought so-and-so." The Prophet said, "Do, and there
is no harm," concerning all those matters on that day. And so,
on that day, whatever question he was asked, he said, "Do it, do
it, and there is no harm therein." [Sahih al-Bukhari, Volume 8,
Book 78, #658]
Here is an illuminating case of
implementing shariah or Islamic Law, in humane way, whenever
possible.
Narrated Abu Huraira: A man came to the
Prophet and said, "I have been ruined for I have had sexual
relation with my wife in Ramadan (while I was fasting)" The
Prophet said (to him), "Manumit a slave." The man said, "
I cannot afford that." The Prophet said, "(Then) fast for
two successive months continuously". The man said, "I
cannot do that." The Prophet said, "(Then) feed sixty poor
persons." The man said, "I have nothing (to feed them
with)." Then a big basket full of dates was brought to the
Prophet. The Prophet said, "Where is the questioner? Go and give
this in charity." The man said, "(Shall I give this in
charity) to a poorer person than l? By Allah, there is no family in
between these two mountains (of Medina) who are poorer than we."
The Prophet then smiled till his premolar teeth became visible, and
said, "Then (feed) your (family with it). [Sahih al-Bukhari,
Volume 8, Book 73, #110]
Imagine, fasting is fard (obligatory)
and having sex is one of the worst ways of violating the sanctity of
fasting. How was the Islamic law enforced here? Of course, one should
not trivialize the whole matter by thinking that the Prophet treated
every possible transgression in this way of leniency. However,
notably, here the transgression was against God. It was not something
that required “enforcement”. Some kaffarah (compensation) was
recommended by the Prophet. But such recommendation was not oblivious
to the pertinent human considerations.
Unfortunately, this kind of Sunnah of
the Prophet had to yield to hair-splitting legalism combined with
enforcement mentality, even where enforcement might not be warranted.
Over the centuries since the time of the Prophet, Muslim society
developed a tendency toward legalism, where everything tends to be
reduced to black and white, right and wrong, permissible and
impermissible. Also, nothing is considered outside the law or
enforcement. While the emergence of various madhabs (schools of
jurisprudence), arguably, has beneficial aspects, one important
consequence of such legalism was to have the Muslim society
splintered into many schools (madhabs) and other offshoot groups
(firqah) that sometime even engage in takfir (religious
denunciations) against each other.
As Muqtedar Khan argues the Islam that
is much broader suffered a legalistic reductionism:
“The Islamic intellectual
tradition—which includes Islamic legal thought (Usul al-fiqh and
fiqh), theology (Kalam), mysticism (Tasawwuf) and philosophy
(falsafa)—is one of the most developed and profound traditions of
human knowledge. In the area of political philosophy, however, this
intellectual heritage remains strikingly underdeveloped. One of the
reasons for this lacuna is the ‘colonial’ tendency of Islamic
legal thought. Many Islamic jurists simply equate Islam with Islamic
law (Shariah) and privilege the study of the latter. As a result we
have only episodic exploration of the idea of a polity in Islam.
Hundreds of Islamic schools and universities now produce hundreds of
thousands of Islamic legal scholars but hardly any produce political
theorists or philosophers. With some rare exceptions, this
intellectual poverty has reduced Islamic thought to the status of a
medieval legal tradition.”82
The legalistic tradition has now become
entrenched, with such a tight grip on the puritanical mentality that
it has sapped virtually all the dynamism of Islam. Yahya Emerick, an
American Muslim and prolific author, offers an illuminating
perspective on this profound challenge.
“When you read their books or
magazines, you find everything they say about Islam is in terms of
correct/incorrect. (Such and such is not correct belief, etc...) It
is admirable, of course, to be interested in the truth, but in their
approach there is no life, no love, no spirituality. It's all about
legalism such as the legalism of the Jews at the time of Prophet
'Esa. Hence, the recently coined condition of ‘Salafee Burn-out’
whereby people drop out of this movement after their heart has been
completely drained of all spirituality.”83
How do religious scholars in Saudi
Arabia issue fatwa against celebrating the birthday of the Prophet
(miladunnabi), but they are muted about monarchy, which is
inconsistent with Islam? How do the weak and powerless get the
shariah treatment for petty theft in Pakistan, while those who are
powerful in the society can get away with just about anything? Why
someone ordinary indulging in intoxicants get prosecuted, while it is
all too well known that the rich, famous and elites regularly indulge
in the “finer things” of life? Indeed, one the custodians of the
Holy Places of Islam was all too well known as a playboy. How are
women most often charged with adultery and sometimes punished, but
men are rarely punished? How does Islamic law recognize that men have
unconditional, unconstrained and unilateral privilege to pronounce
divorce, but women have no reciprocal right, even though the Qur’an
does mention about reciprocity in rights and duties?84
The answer to the abovementioned
questions lies at least partially in legalism: strict, literal, or
excessive conformity to the law or to a religious or moral code. It
can also be understood as an improper fixation on laws or codes of
conduct, or legal ideas, without appropriately balancing the mercy
and grace of God in pursuit of salvation. In the history of Islam,
legalism led to hair-splitting tendency in regard to even the
minutest details of life. For example, in Hanafi and Shafi’i school
‘wajib’ [required] is not defined the same way. Hanafi school
makes a technical distinction between fard [obligatory] and ‘wajib’
[required], while in Shafi’i school, there is no distinction
between the two. Thus, for considering witr prayer ‘wajib’, a
Shafi’i scholar hurled the fatwa of ‘kufr’ against Imam Abu
Hanifah, because the scholar thought that Hanifah has elevated ‘witr’
to an obligatory level, which, of course, Hanifah did not.85 This was
an extreme case, but emphasizing even minutest details and fostering
a state of anxiety in the minds of people about whether they are
being “perfect” in their worship and in everything else are among
the hallmarks of legalistic mindset. Islam, of course, does not teach
or demand robotic perfection; instead, it approaches human beings as
fallible, imperfect creatures.
“Had human beings not committed any
sin, He would have replaced this species with another species that
would commit sin so that He could forgive them." [Sahih Muslim,
#6621]
Of course, this is not a license or
encouragement to sin. Rather, it is merely the positive
acknowledgement of human frailty and imperfection. Legalistic mindset
and approach are not consistent with the human nature.
Legalism suffers from legalistic
reductionism. Everything is viewed from a legal perspective. Legalism
fosters hair-splitting tendency. Legalism creates an environment,
where people are constantly anxious about being improper, even though
the Prophet has clearly and emphatically warned against it.
"RUINED are those who indulge in
hair-splitting" [Sahih Muslim; Vol. 4, #6450]
"A person who would be thoroughly
scrutinized (on the Day of Judgment by Allah) is ruined."
[Hadhrat Aisha, Sahih Muslim, #6874]
But more importantly, legalism makes
people self-righteous on one hand, while judgmental about their
fellow human beings, on the other. However, God is the ultimate Judge
and he his very jealous about anyone attempting to sit at his seat of
judgment.
Narrated Abu Hurayrah: I heard the
Apostle of Allah (p) say: There were two men among Banu Isra'il, who
were striving for the same goal. One of them would commit sin and the
other would strive to do his best in the world. The man who exerted
himself in worship continued to see the other in sin.
He would say: Refrain from it. One day
he found him in sin and said to him: Refrain from it.
He said: Leave me alone with my Lord.
Have you been sent as a watchman over me? He said: I swear by Allah,
Allah will not forgive you, nor will he admit you to Paradise. Then
their souls were taken back (by Allah), and they met together with
the Lord of the worlds.
He (Allah) said to this man who had
striven hard in worship; Had you knowledge about Me or had you power
over that which I had in My hand? He said to the man who sinned: Go
and enter Paradise by My mercy. He said about the other: Take him to
Hell.
Abu Hurayrah said: By Him in Whose hand
my soul is, he spoke a word by which this world and the next world of
his were destroyed. [Sunan Abu Dawud, Kitab al-Adab, #4883]
At another level, legalism shifts
attention away from values and principles that represent the essence
of Islam. Legalism also reflects preoccupation with the laws and
codes, often delinked from their purpose and spirit, which leads to
overemphasizing form over substance or ritual over the values and
consciousness underlying those rituals.
In the very name of the Prophet, the
legalists forgot or ignored that :
"Verily Allah does not look to
your appearance or wealth, but he looks to your hearts and your
deeds." [Sahih Muslim, Vol. 4, #6221]
Another major problem with legalism is
that, due to preoccupation with hair-splitting details, everything
becomes important, without any prioritization. As human nature cannot
be preoccupied with everything and at the same time, focus on the
details causes the attention to shift away from the larger picture.
In a legalistic environment, ultimately, everything does not remain
important. Instead, people become preoccupied with smaller matter or
petty details, while bigger matters get neglected. The underlying
connection with the larger mosaic of life gets severed. The Qur’an
clearly educates us about the hierarchy of priorities
[4/an-Nisa'a/31].
In such an environment, one may observe
the preoccupation with straightening the lines in congregational
prayers, and the whole arrangement appears like military-type
discipline. Yet, as soon as such faithfuls step outside the mosque,
they forget about the value of discipline and organization, as
reflected in the traffic behavior in the streets of many
Muslim-majority countries. One may observe the common faithfuls’
meticulous attention to taharat (cleanliness), but that’s only in
the religious context. The same people who take extra time to make
sure that some water reaches the nook and cranny of every designated
part, including the inside of nostrils, hardly pay any attention to
the way garbage is disposed, and scattered everywhere, without any
regard to health concerns. One may observe the attention paid to
following the Imam, where the prayer leader must be followed, in
every possible way. Even to prostrate or raising one’s head before
him may annul one’s prayer. The specific position of each school of
course varies. Anyone imposing himself as an Imam stands repudiated
from the Islamic viewpoint. However, when bigger imams (leaders)
impose themselves as dictators, monarchs, military juntas, the same
people and their religious leaders generally have no problem with
that.
Recently in India Muslim women broke
away from the male-dominated All India Muslim Personal Law Board and
set up their own Board.86 Muslim women are finding that legalism
combined with male-dominance has created a fundamental insensitivity
toward women’s rights and concerns. Many women, better educated,
are rediscovering Islam and revolting against male-dominated,
legalism that they now know are not necessarily sanctioned by Islam.
Influenced by legalism, interest-free
financial institutions are cropping up everywhere. From the
legalistic perspective, it is being argued that interest is haram
(prohibited), and an important rationale for such prohibition is that
it is unjust and exploitative. However, the concern of such
institutions about exploitation is merely rhetorical, as the new
institutions are becoming too cozy in an exploitative environment
about which these institutions are muted.87 Thus, there is movement
to meet the legal requirements from an orthodox perspective, but
there is hardly any progress in addressing the widespread problem of
poverty, destitution, and exploitation in the broader society.
The burden of legalism, enshrined in
the misunderstanding and misinterpretation of shariah, what Muqtedar
Khan calls “the tyranny of legalism,” has become overwhelming for
the Muslim society.
In addition to legalism, Islam has also
become a victim of theology-orientation, where exclusionary purity of
creeds and dogmas has robbed the soul of Islam. Whatever we believe
in should be with sincerity and purity and our worship and practice
(amal) should be based on the Qur’an and the Prophetic examples.
However, there is a difference between correctness of creed and dogma
on one hand and Puritanism on the other. Khaled Abou El Khaled
explains the nature and impact of such Puritanism, which also
predictably leads to legalism:
“The theologically based attitudes of
these Muslim puritans are fundamentally at odds not only with a
Western way of life but also with the very idea of an international
society or the notion of universal values. They display an intolerant
exclusiveness and a belligerent supremacy vis-Ã -vis the other.
According to their theologies, Islam is the only way of life, and
must be pursued regardless of its impact on the rights and well-being
of others. The straight-path (al-sirat al-mustaqim) is fixed, they
say, by a system of divine laws (shari’a) that trump any moral
considerations or ethical values that are not fully codified in the
law. God is manifested through a set of determinate legal commands
that specify the right way to act in virtually all circumstances. The
sole purpose of human life on earth is to realize the divine
manifestation by dutifully and faithfully implementing God’s law.
Morality itself begins and ends in the mechanics and technicalities
of Islamic law (though different schools of Islamic law understand
the content of those laws differently).
A life devoted to compliance with this
legal code is considered inherently superior to all others, and the
followers of any other way are considered either infidels (kuffar),
hypocrites (munafiqun), or iniquitous (fasiqun). Anchored in the
security and assuredness of a determinable law, it becomes fairly
easy to differentiate between the rightly-guided and the misguided.
The rightly-guided obey the law; the misguided either deny, attempt
to dilute, or argue about the law. Naturally, the rightly-guided are
superior because they have God on their side. The Muslim puritans
imagine that God’s perfection and immutability are fully attainable
on earth—as if God’s perfection has been deposited in the divine
law, and by giving effect to this law, we could create a social order
that mirrors divine truth.”88
Such projection of God’s divinity, as
related to the perfection and immutability of his guidance, to the
human level makes us forget that God is Divine and Perfect, but we
are not. We must be sincerely and diligently committed at the
personal and the collective level to best realize the spirit of God’s
guidance. Yet, this world is not to be a place of perfection in
regard to our connection with God. Indeed, that imperfection is
reflected in the very story of the first human soul and the first
parents of humanity of Adam and Eve. Imperfection is our human nature
and God reminds us that he does not expect from us perfection and
sinlessness. Rather, he is the Most Forgiving (al-Gafur) and
Oft-Returning (al-Tawwab), who desires that we will try not to err or
sin, but if we fail, we return to our Forbearing Lord, sincerely
acknowledge our failure and seek forgiveness. What would Islam based
on theology-orientation and legalism would say if someone exclaims:
“O Allah! You are my servant and I am your Lord!”? Let me not
elaborate that here, because I have offered my reflection on this in
a separate essay, which the readers might find illuminating and
uplifting.89
Even though Islam’s message is of
liberation, we are hostage of both external and internal factors.
Islam’s message of moderation and balance has been subverted by
theological dogmatism, hair-splitting extremism and
enforcement-mentality. This requires a fundamental shift from
legalism to a better balance with a value-orientation.
V. Value-orientation
A society’s real character is a
reflection of, first and foremost, its values and principles. A legal
system and environment also reflect the values and principles a
society upholds. To place laws above, or delink from, values leads to
legalism like putting cart before the horse. The Islamic experience
is a testimony to this fact. The Qur’anic revelation in the
pre-Madinah period hardly saw any law or code. Rather those were
exhortation and guidance to prepare a community with a set of creeds,
values and principles that lay its foundation. Details about rituals,
laws about society and economy, or commandments pertaining to dos and
don’ts came about primarily in Madinah period, when a polity was
already established and the community was prepared for an organized
society with its unique legal framework and codes.
The Qur’an specified a few legal
injunctions and offered a lot more as guidance. The Prophet, during
his exemplary life, put the Qur’anic guidance into action. He
provided details as to how to best realize the goals of those laws,
injunctions and codes. The viability and true strength of that
society did not lie in the enforcement of laws and codes in every
aspect of life. Rather, it was a value system, nurtured by
God-consciousness, which internally motivated people to seek and
value guidance from God and mould their lives accordingly. After all
the Qur’an informs us human nature is fundamentally shaped by
self-interest.90
“If ye do good, ye do good for your
own souls, and if ye do evil, it is for them (in like manner).”
[17/al-Isra'/7]
The law of Islam includes extremely
harsh punishment for adultery. However, even the punishment by death
itself can’t be considered a real deterrence, where people care
little to take or give life. Indeed, the threshold of prosecuting any
case of adultery is such that any such prosecution is virtually
impossible. No wonder that there was no case during the Prophet’s
lifetime, where any Muslim accused by others or by the state was
convicted and punished according to the law. However, there are some
cases, where a remorseful adulterer sought out the punishment,
because Islam teaches that anyone who repents in this world and
punished, if warranted, would not only not be punished in the life
hereafter, but also that their repentance would elevate their status
and honor with God.91
As the appropriate value-orientation
was facilitated by the Prophet, there were laws, but no legalism.
When law took the form of legalism, the details of the Islamic laws
(which were deduced by fallible human beings) are now such that poor
and powerless women in particular are becoming victims of injustice
in the name of Islam and shariah.92 The concerns of the Hudood Laws
in Pakistan does not include justice, but obedience to and
implementation of laws that are grounded in divine revelation but
only at the essential level. At the level of details, those laws are
essentially a human construct. Moreover, implementation of such laws
at the hands of insensitive and all-too-fallible human beings, who
neither understand nor appreciate even rule of law and that these
rules, laws, codes are for human beings, not the other way around,
can be a tragic experience.
Yahya Emerick rightly observes:
“Muslims have lost touch, generally,
with the noble qualities of Islam, qualities such as compassion,
understanding, tolerance and progressiveness (from within an Islamic
framework, of course). We have become like the Bani Isra’il:
steeped in legalism, harshness and intolerance. In the same way
that Prophet Jesus was sent to breath new life into them, we must
learn to reinvigorate ourselves.”93
If Shariah has both divine (the Qur’an)
and non-divine (hadith, ijma, qiyas, etc.) as its source and
foundation, and the non-divine content is overwhelmingly and
disproportionately more, can we or should we describe shariah as
divine? The view of a well known female Muslim scholar Riffat
Hassan’s view is as following.
“Not surprisingly, then, most Muslims
cannot conceive of being Muslim without adhering to Muslim laws as
they know these while remaining ignorant of how these may have been
derived or formulated. In the meantime, elevating the shariah to the
level of divinity renders it beyond challenge for the average Muslim.
Refuting the divinity of shariah, a feminist theologian asserts:
Being a Muslim is dependent essentially
only upon one belief: belief in Allah, universal creator and
sustainer who sends revelation for the guidance of humanity.
Believing in Allah and Allah's revelation to and through the Prophet
Muhammad, preserved in the Qur'an is, however, not identical with
accepting the Shariah as binding upon oneself...the assertion that
one is a Muslim only if one accepts the `Shariah' as binding on
oneself, and, further, that the Shariah is divine, transcendent and
eternal, can be seriously questioned (and, in my opinion should
be).”94
So, if shariah in general or in its
totality isn’t divine, how do we describe and understand it? Here
are some suggestions.
Shariah is often referred to as Islamic
law, but this is wrong, as only a small part is irrefutably based
upon the core Islamic text, the Koran. A correct designation is
‘Muslim Law’ (i.e. the law system of the Muslims), or
‘Islam-inspired’, ‘Islam-derived,’ or even ‘the law system
of Muslims.’95
So, what are some of the essential
values that Muslims must uphold and integrate into their thought
process, culture and legal framework? The following is not an
exhaustive list. Rather, it is merely for an illustrative purpose.
#1. Fundamental human dignity (each
human as a person, not an object)
Each human being is a person, not an
object. Slavery becomes possible only when human beings are regarded
as objects that can be owned and traded.96 The same kind of thought
makes legalistic views to treat or regard mahr (dowry) as a “price”
in a trade.97 God has sanctified each one of us at the human level,
and Muslims should be at the forefront in upholding the fundamental
human dignity.
”O mankind! reverence your
Guardian-Lord, who created you from a single person, created, of like
nature, His mate, and from them twain scattered (like seeds)
countless men and women;- reverence Allah, through whom ye demand
your mutual (rights), and (reverence) the wombs (That bore you): for
Allah ever watches over you.” [4/an-Nisa/1] A person asked, O
Prophet of God (p), whose Islam is excellent or the best (afdal)? He
replied: "From whose tongue and hands the people (an-nas:
irrespective of Muslims or non-Muslims) are safe."
[Musnad-i-Ahmad, #6762; narrated by Abdullah ibn Amr]
#2. Justice Islam’s emphasis on
justice (fairness) is unequivocal. It sets a standard that is much
higher compared to any other ideology or religion, as it asks its
adherents to stand forth for justice even if that means being against
oneself.
”O ye who believe! stand out firmly
for justice, as witnesses to Allah, even as against yourselves, or
your parents, or your kin, and whether it be (against) rich or poor:
for Allah can best protect both. Follow not the lusts (of your
hearts), lest ye swerve, and if ye distort (justice) or decline to do
justice, verily Allah is well acquainted with all that ye do.
[4/an-Nisa/135]
Except in matters pertaining to ritual
worship, in any matter affecting the life, honor and property of
people, a law or code must explain how it is just and how justice is
served through that code. A code simply can’t say that the widow of
a missing husband must wait at least four, ten or an indefinite
number of years. It must also explain how such a law or requirement
is just, especially considering the interest of the wife. Also,
generally, we must not consider justice as relative, as some
religious scholars have erroneously argued.98
#3. Equality (and non-discrimination)
Whether in terms Muslims and
non-Muslims or male or female, the value-oriented norm of Islam is
equality. In this world, as human beings we are all equal, especially
in terms of our rights pertaining to life, honor and property.
Whatever good or virtue Muslims must have in this world is to be
rewarded by Allah in the life hereafter. At the human level, we must
regard each other as equal. In two areas, the issue of equality is
particularly important: gender and Muslim/non-Muslim relationship.
For example, in case of divorce, the Qur’an teaches:
“...but, in accordance with justice,
the rights of the wives (with regard to their husbands) are equal
(mithl) to the (husbands;) rights with regard to them, although men
have a degree (of advantage) over them (in this respect). And God is
almighty wise.” [2/al-Baqarah/228]
The above verse states that the rights
of men and women in this context are equal or reciprocal. That’s
the Islamic norm. However, the so-called shariah, as exemplified in
Islamic laws, has taken inequality as the norm, and gradually, the
matter of men’s precedence in this respect has completely
supplanted the norm. Instead, in regard to divorce, Islamic law has
accorded, not a degree, but virtually unconditional, unrestrained,
and exclusive advantage to men. From the Qur’anic perspective,
gender relationship is essentially based on mutual guardianship
(wilayat).
"The believers, men and women, are
AWLIYA (protectors, guardians, patrons), one of another; they enjoin
what is Ma'roof and forbid what is Munkar; they observe regular
prayers, practise regular charity, and obey God and His Apostle. On
them will God pour His mercy, for God is Exalted in power, Wise."
[9/al-Tauba/71]99
In regard to life, regardless of their
religious background, it should be treated in a humanity-oriented
manner.
"On that account: We ordained for
the Children of Israel that if any one slew a person - unless it be
for murder or for spreading mischief in the land, it would be as if
he slew the whole people; and if any one saved a life, it would be as
if he saved the life of the whole people. Then although there came to
them Our Apostles with clear signs, yet, even after that, many of
them continued to commit excesses in the land." [5/al-Maidah/32]
If the above verse has any meaning and
relevance in the context of justice, then, in regard to life, there
should be no discrimination. In case of murder, the punishment of a
Muslim murdering a non-Muslim cannot be less than the punishment of a
non-Muslim murdering a Muslim.
#4. Freedom
This is one of the pivotal aspects of
value-orientation. The edifice of Islam is based on free choice, not
coercion. If Islam is to become relevant once again, we have to
recognize the foundation of free choice as we embrace Islam. Coercion
may gain cursory compliance, but can never win the hearts of people
who will disavow such cursory compliance at the very first
opportunity. When the Prophet Muhammad and his nascent community were
under persecution, Allah emphatically reminded the Prophet to cherish
that freedom. No one has any right to take away such fundamental
right to choice and freedom [subject to other parameters of any
healthy and functional society].
"I do call to witness this
City;
And thou are a FREE PERSON (Hillun) of this City;-
And (the mystic ties of) parent and child;-
Verily We have created man into toil and struggle. [90:al-Balad/1-4]
And thou are a FREE PERSON (Hillun) of this City;-
And (the mystic ties of) parent and child;-
Verily We have created man into toil and struggle. [90:al-Balad/1-4]
a. All aspects of Islam are essentially
applicable to the adults who are free to choose. Thus, our effort to
culturalize Islam, that is, expecting our children and younger
generation to automatically be Muslims, is preposterous and
inconsistent with Islam.100 If I believe in Islam, I will try to
practice and follow it the best I can. I will try to be an example
for others and especially for my own children; I will help my
children understand Islam as they grow up, and I will help them
understand why making choices are important, and the consequences of
our choices. But it would not be appropriate for them to either
dogmatically or blindly accept faith. They must affirm their own
identity. That is why the first pillar of Islam is Shahadat (public
affirmation or declaration), which we have rendered irrelevant and,
as a consequence, Islam as a way of life is no longer dynamic for us.
When the children grow up and make
choice not to our liking we must respect it, try to improve our
guidance of them, and have faith in them. But every adult person of
either gender must make his/her own choice. If such a choice is made
freely and spontaneously, then the true message of Islam
will be manifest and Islam may once again revolutionize the
world. Also, instead of showing antagonism and rejection if one
of our children makes a wrong choice, we need to show them
greater love and empathy. That might be the only pathway for them to
make amends; antagonism and rejection, on the other hand, would
seal the door to such pathway for good. These issues pertains to the
legal domain in the sense that from a legalistic and judgmental
perspective the issue of someone being born in a Muslim family and
later giving up Islam is dealt with by the traditional Islamic laws
under apostasy, which carries hadd punishment.
Such approach and position is most
unfortunate especially in the context of the revivalist movements for
re-establishing Khilafah (caliphate). Muslims generally revere the
period of the Khulafa-i-Rashidoon (the Rightly Guided Khalifas) and
regard that period as exemplary. Furthermore, they also view that
that earliest period establishes the essence of Khilafah as the
Islamic political system. However, the understanding of the dogmatic
proponents of revival of Khilafah in our contemporary time might be
also an obstacle in persuading the broader Muslim community in favor
of Khilafah. One example is Hizb at-Tahrir (HT) that has taken up
re-establishment of Khilafah as its core mission. In a draft
constitution (dustoor), proposed by its founder/leader Taqiuddin
al-Nabahani and adopted by HT states in Article 7c:
“Those who are guilty of apostasy
(murtad) from Islam are to be executed according to the rule of
apostasy, provided they have themselves renounced Islam.”101
The above position in itself is
unwarranted from Islamic viewpoint. However, even more untenably, the
draft constitution goes even further (in the same Article).
If they are born as non-Muslims, i.e.,
if they are the sons of apostates, then they are treated as
non-Muslims according to their status as being either polytheists
(mushriks) or People of the Book.”102
However, as we have already explained
above that such should not be the case, and most contemporary Islamic
thinkers repudiate such violation of freedom of faith as unislamic
and reject the traditional position. They understand the issue of
apostasy (irtidad) as pertaining to treason against Islamic state,
not renouncement of one’s faith. In keeping with Islamic principles
and values, this area of freedom of faith is not a matter of law or
enforcement.103
b. Another topic where the issue
of freedom and coercion has special relevance is the case of
women in general and marriage in particular.
Women must be regarded and treated as
full and independent humans. They would stand before Allah and be
accountable as full humans. This also requires a better understanding
of gender relationship in Islam. Women, as adults, are not to be
dependent on men. A life of marriage is not a life of servitude. It
is a relationship of mutual guardianship (awliya of each other;
9/al-Tauba/71) Islamic dependence should be mutual. Some
western models suggest a push for such independence
that women don't need men, and vice versa. This is an extremism for
which the western societies are already beginning to pay high prices,
as broken families are taking heavy tolls on children, causing them
to suffer from alienation and depression as well as increasing
violence and other social ills. In contrast, the prevailing mode of
Muslim societies is that women are not treated or allowed to develop
as full human beings. Muslim men - and these days the Islamic
scholarship is an exclusive domain of men - have become the sole
arbiter of the lives of Muslim women. True Islam necessitates that
women achieve the qualification of jurisprudents, establish
themselves as scholars and policy-makers, and have their due share as
part of Shura (consultation) to shape Islamic thought and guidance
pertaining to all aspects of life.104
To address a specific topic, among many
Muslims it has become customary to force a specific bride or groom on
their children. The brides are usually more vulnerable to family
impositions and coercions. This is unIslamic. Yes, Islam prefers
family involvement, particularly of parents, in a marriage decision,
but that is a matter of consultation. The best marriages are those
that come about with mutual consultation and agreement of the
bride/groom and their respective parents (or guardian). However,
there is an Islamic limit. The final decision regarding any marriage
decisively rests with the bride and groom. Any coercion in this
regard is unIslamic and invalid. If parents understand their domain
of rights and duties, and so do the children, then much of the
related problems and tensions can be avoided. It is imperative,
therefore, to educate both parents and children of their respective
rights and duties. Adequately clarified pertinent laws need to
complement such education. Traditional Islamic laws place an
overemphasis on the rights of the parents to involve in such
decisions, which often has caused a great deal of friction, tension
and worse at the family level. More importantly, in many cases,
younger generations often have felt alienated from Islam, even though
it is not Islam, but the traditional Islamic laws that usually causes
such alienation.
c. Probably the biggest and broadest
areas related to choice and coercion involve the role of the state.
In light of the experience with Islamic law and their wrongful
application, many Muslims as well as non-Muslims now have tremendous
reservation about Islamic laws, or mixing political power with
religious authorities. The pertinent issues need to be examined and
taken into consideration with empathy and sensitivity. Many Muslims
and non-Muslims who are afraid of a "religious" or
theocratic state may have good reasons to fear; not necessarily
that they harbor an ill or prejudiced attitude toward Islam
(admittedly, some may or actually have ill or prejudiced attitude).
Without properly addressing those issues, it would be impossible to
persuade them in favor of Islam (before an Islamic society is
established) and maintain the bond between Islam and people at a
dynamic level (after such a society is established).
The experience of those countries
trying to implement shariah, as discussed earlier in this essay, is
playing a very important role in shaping the attitude of a lot of
people toward Islam. As already discussed above, Islam is NOT a
police state and, as such, NOT to be pushed down anyone's
throat: that stands patently against Islam. In some cases,
particularly in the context of Talibani Afghanistan, even enemies of
Islam could not do any better in alienating Muslims from Islam, let
alone non-Muslims.
Islam envisions authority or government
that is constitutional, participatory and accountable to
people. Under normal and mature condition, an Islamic
government would use the least power, authority and coercion. An
Islamic authority does have executive power, but must use it
judiciously and under the rule of law and constitutional restraints.
Islam has already limited such authority in a balanced manner.
Unfortunately, there does not seem to be adequate appreciation of
this among Muslims, let alone non-Muslims. The government in an
Islamic society does not pry into people's lives: no "religious
police" in Islam! It does not fill up jails with those who do
not pray or fast, does not beat a lady who does not wear a scarf or
some strands of whose hair are exposed. If the government makes
people do these because of the power and authority of government,
then how much is the persuasive value and attraction of Islam? How is
it then that the "Truth stands out clear from
Error"? [2/al-Baqarah/256] Sooner or later, such coercive
actions would be undone challenged by those who are coerced.
Yes, in a nascent society based on
Islam, like in any society in its formative stage, some authoritative
power to shape the values and norms of the society is indispensable.
For example, in a drug-infested society, there might be sterner
action or exercise of power against the drug-traders. But such power
cannot be abusive, for example, to suppress the political
opposition; otherwise, it would simply be counter-productive.
d. People should be allowed to choose
their faith. If someone wants to choose another faith, Islam should
not get in the way. It is a gross misunderstanding and
distortion of Islam that a person giving up the faith in Islam needs
to be punished.
”If it had been thy Lord's will, they
would all have believed,- all who are on earth! Will you then compel
mankind, against their will, to believe!” [10/Yunus/99]
Also, there needs to be fresh
articulation of the rights of non-Muslims in an Islamic society. Both
at the time of the Prophet Muhammad (s) as well as after him, there
were many non-Muslims who desired to migrate and live in that
society. We have to understand why. An Islamic society is a
pluralistic society. Traditional viewpoints on issues such as Jizya,
political participation and right to hold office, need to be
re-examined.
"... if we value freedom, it can't
be just for us. We have to value freedom for others too, even though
sometime we may find certain ideology, religion or philosophy utterly
disagreeable. At the very first sign of someone criticizing or
vilifying Islam, we can't demand such person's head or try
to drive him or her out of our neighborhood or of this planet.
As Muslims need to recognize the
importance of freedom, and struggle for it at all levels, they also
need to recognize the challenge of conceiving a model of a society
where not merely the freedom of Muslims becomes an exclusive concern,
but also the freedom of others."105
The bottom line is that Islam is based
on the paradigm of choice and freedom, not coercion or autocracy.
Those who coercively push for their version act inconsistent with
this fundamental value of Islam and are contradicted by this key
verse in the Qur'an. Furthermore, Muslims have a major challenge106
to reshape their society that meets this value of freedom and
choice appropriately balancing with the overall standard and norms of
Islam. 107
#5. Universal moral values (ma’ruf)
“You are the best of peoples, evolved
for mankind (an-nas), enjoining what is ma’ruf, forbidding what is
munkar, and believing in Allah. If only the People of the Book had
faith, it were best for them: among them are some who have faith, but
most of them are perverted transgressors.” [3/ale Imran/110]
The Qur’anic call toward ma’ruf and
away from munkar relates to moral values in an universal sense. Both
ma'ruf and munkar have a broad range of meaning and a clear
understanding of these two concepts is critical to a Muslim's life.
Ma'ruf means well known; universally accepted; generally recognized; that which is good, beneficial, right. Munkar means wrong; abominable; disagreeable; denied, not recognized, rejected; evil; atrocity.
Islamic shariah represents the ma'ruf and munkar, because it incorporates what is universally recognized as good and right and rejects what is universally recognized as evil and wrong. For example, no society considers stealing or lying to be good and right, even though people may practice those acts. Every society considers honesty to be a virtue, even though some people are dishonest. Calling mankind to ma'ruf and away from munkar thus represents the universal nature of Islam.
Muslim Ummah does not exist for its own sake. It has a definite mission, a divinely ordained service to render to humankind. As Abdullah Yusuf Ali, a well known commentator on the Qur’an explains:
Ma'ruf means well known; universally accepted; generally recognized; that which is good, beneficial, right. Munkar means wrong; abominable; disagreeable; denied, not recognized, rejected; evil; atrocity.
Islamic shariah represents the ma'ruf and munkar, because it incorporates what is universally recognized as good and right and rejects what is universally recognized as evil and wrong. For example, no society considers stealing or lying to be good and right, even though people may practice those acts. Every society considers honesty to be a virtue, even though some people are dishonest. Calling mankind to ma'ruf and away from munkar thus represents the universal nature of Islam.
Muslim Ummah does not exist for its own sake. It has a definite mission, a divinely ordained service to render to humankind. As Abdullah Yusuf Ali, a well known commentator on the Qur’an explains:
"The logical conclusion to the
evolution of religious history is a non-sectarian, non-racial,
non-doctrinal, universal religion which Islam claims to be. For Islam
is just submission to the will of God.
This implies (1) faith, (2) doing right, being an example to others to do right, and having the power to see that right prevails, (3) eschewing wrong, being an example to others to eschew wrong, and having the power to see that wrong and injustice are defeated. Islam (the author probably meant Muslim Ummah) therefore lives, not for itself, but for mankind."108
This implies (1) faith, (2) doing right, being an example to others to do right, and having the power to see that right prevails, (3) eschewing wrong, being an example to others to eschew wrong, and having the power to see that wrong and injustice are defeated. Islam (the author probably meant Muslim Ummah) therefore lives, not for itself, but for mankind."108
Unfortunately, this sense of
universality has been lost in the way Islam, under the influence of
puritanical fundamentalism, is now portrayed and conveyed to the
humanity. As Khaled Abou El Fadl reflects:
“The puritans construct their
exclusionary and intolerant theology by reading Qur’anic verses in
isolation, as if the meaning of the verses were transparent—as if
moral ideas and historical context were irrelevant to their
interpretation. In fact, however, it is impossible to analyze these
and other verses except in light of the overall moral thrust of the
Qur’anic message. The Qur’an itself refers to general moral
imperative such as mercy, justice, kindness, or good ness. The Qur’an
does not clearly define any of these categories , but presumes a
certain amount of moral probity on part of the reader. For instance,
the Qur’an persistently commands Muslims enjoin the good. The word
used for ‘the good’ is ma’ruf, which means that which is
commonly known to be good. Goodness, in the Qur’anic discourse, is
part of what one may call a lived reality—it is the product of
human experience, and constructed normative understandings.”109
This kind of exclusionary mentality not
only stands in the way of witnessing Islam as the essential truth in
its universal dimension, but also it alienates the rest of world with
a negative understanding about and attitude toward Islam and Muslims.
The emphasis of ma’ruf does not mean that there are no special or
distinctive aspects of Islam in an applied sense. However, the focus
of Muslims should have been appropriately balanced with the
universalistic dimension, which would have enabled the humanity to
appreciate the fact that Islam is not a new religion, but it is the
same essential truth and message as brought about by all the
prophets, including Abraham, Moses, and Jesus (peace be upon them
all).
#6. Humanity-orientation and Global
Belonging
You are the best of peoples, evolved
for mankind (an-nas), enjoining what is right, forbidding what is
wrong, and believing in Allah. If only the People of the Book had
faith, it were best for them: among them are some who have faith, but
most of them are perverted transgressors. [3/ale Imran/110]
O mankind (al-Nas)! reverence your Guardian-Lord, who created you from a single person, created, of like nature, His mate, and from them twain scattered (like seeds) countless men and women;- reverence Allah, through whom ye demand your mutual (rights), and (reverence) the wombs (That bore you): for Allah ever watches over you. [4/al-Nisa/1]
O mankind (al-Nas)! reverence your Guardian-Lord, who created you from a single person, created, of like nature, His mate, and from them twain scattered (like seeds) countless men and women;- reverence Allah, through whom ye demand your mutual (rights), and (reverence) the wombs (That bore you): for Allah ever watches over you. [4/al-Nisa/1]
At one level we belong to a family. At
another level we belong to a nation or country. At another level we
belong to the Muslim Ummah. At yet another level we belong to the
humanity. None of these senses of belonging necessarily needs to
conflict with each other. Our family and nation are often not our
choices; we are born into it. We belong to our family and the circle
of relatives through biological and other bonds. Belonging to a
nation is becoming more fluid with greater mobility of people
throughout the world. Yet, without any conflict, we can often
maintain our attachment to the part of the world we are from, while
maintain our loyalty to the place of our choice of permanent
residence.
As Muslims, we also develop and feel a special bond with our global Muslim community, the Muslim Ummah. As our Islamic identity should be by our choice, not by lineage, this sense and level of belonging is of central importance. However, even this level of belonging should not conflict with our spirit of belonging to the humanity. It is through this spirit of belonging that we realize the meaning of “evolved fro mankind.” The achievements of humanity and the joy humanity are not isolated from us, we have a share in it. We must rejoice only in good things that happen to or with Muslims. We must not succumb to the sense of estrangement that by default we view the rest of the world as “the other.” We must not also feel pain and agony at the suffering of Muslims. We must be in tune with the pain and suffering of the humanity. Our concern and activism must not be limited to those situations where Muslims are victims. We must also empathize with the rest of the humanity. As Kazi Nazrul Islam, the Rebel Poet and the voice and beacon of global belonging,110 wrote:
As Muslims, we also develop and feel a special bond with our global Muslim community, the Muslim Ummah. As our Islamic identity should be by our choice, not by lineage, this sense and level of belonging is of central importance. However, even this level of belonging should not conflict with our spirit of belonging to the humanity. It is through this spirit of belonging that we realize the meaning of “evolved fro mankind.” The achievements of humanity and the joy humanity are not isolated from us, we have a share in it. We must rejoice only in good things that happen to or with Muslims. We must not succumb to the sense of estrangement that by default we view the rest of the world as “the other.” We must not also feel pain and agony at the suffering of Muslims. We must be in tune with the pain and suffering of the humanity. Our concern and activism must not be limited to those situations where Muslims are victims. We must also empathize with the rest of the humanity. As Kazi Nazrul Islam, the Rebel Poet and the voice and beacon of global belonging,110 wrote:
“... To be able to feel the pain of
others is the real feeling of noble pain. One can't find any selfish
motive or goal behind the feeling of pain of those who suffer so.
This is so, because, it's that agony the experience of which lets one
identify himself with it, rendering him in tune with the true nature
of soul. There is a deep sense of joy at feeling the sadness of
others; it's like a beautiful, long stretch of fountain on the bed of
our living heart.
It is the same agony the divine
messengers have experienced in the deepest of their heart in tune
with the humanity. Words can't express this sorrow. It's the same
pursuit that renders divinity upon humans. It is in the utmost
sincerity of this sorrow lies the tranquil peace of sacrifice. One
finds the touchstone of joy and happiness in this orchard of
perennial agony. . . .
When, through our own agony and
suffering, we can embrace the pain and agony of the world as ours,
only then our soul soar to nobility - its frontiers are extended. We,
then, come to know the truth, to experience the beauty: and that's
why then we truly feel the joy in sacrifice; we can then cry for
others and offer even our lives for the sake of all those who are in
sadness, pain, agony, and suffering.”111
Our laws must not unnecessarily foster
mutual estrangement. Instead, imbued with the spirit of global
belonging, we must seek common ground for good common causes. Muslims
should be at the forefront of fostering the spirit of
global-belonging. Of course, there are icons from all background that
can be inspiring icons.112
#7. Seeking common ground for good
common causes
"Say: 'O people of the Book! come
to common terms as between us and you: that we worship none but God;
that we associate no partners with Him; that we erect not, from among
ourselves, lords and patrons other than God.' If then they turn back,
say: 'Bear witness that we (at least) are Muslims (bowing to God's
Will).'" [3/Ale Imran/64]
It is a common human tendency to
emphasize and exaggerate differences more than commonness. Muslims
are no exception. Islam invites people to the pristine truth. It
delivers the good news and warns about the bad news. However,
whenever appropriate and possible, it also seeks to identify and
build on common grounds. This is what made the Islamic society of
Madinah under the leadership of Prophet (p) possible. Islam presents
the choice to people about the truth and falsehood, right and wrong,
virtue and vice. Let people make their choice. However, Islam does
teach its adherents to seek common grounds for the betterment of
human society, particularly based on enjoining the Ma'roof and
forbidding the Munkar.113
"...help (cooperate) one another
in matters of Birr and Taqwa; and do not help (cooperate) in Ithm
(sin) and transgression...." [5/al-Maida/2]114
#8. Rejection of violence as normal
In Islam peace and non-aggression are the norms. Islam doesn’t proscribe violence in the way Christianity (of idealism, not of reality) would suggest. However, it is any violence is only in one’s defense, without initiating it, without any excesses, and subject to some strict guidelines as part of the rule of law. Otherwise, Muslims are never to engage in violence, especially in a vigilante manner.
In Islam peace and non-aggression are the norms. Islam doesn’t proscribe violence in the way Christianity (of idealism, not of reality) would suggest. However, it is any violence is only in one’s defense, without initiating it, without any excesses, and subject to some strict guidelines as part of the rule of law. Otherwise, Muslims are never to engage in violence, especially in a vigilante manner.
”Let there be no hostility except to
those who practice oppression.” [2/al-Baqara/193]
To those against whom war is made, permission is given (to fight), because they are wronged;- and verily, Allah is most powerful for their aid; ...
To those against whom war is made, permission is given (to fight), because they are wronged;- and verily, Allah is most powerful for their aid; ...
(They are) those who have been expelled
from their homes in defiance of right,- (for no cause) except that
they say, "our Lord is Allah". Did not Allah check one set
of people by means of another, there would surely have been pulled
down monasteries, churches, synagogues, and mosques, in which the
name of Allah is commemorated in abundant measure. Allah will
certainly aid those who aid his (cause);- for verily Allah is full of
Strength, Exalted in Might, (able to enforce His Will).
[22/al-Hajj/39-40]
”Fight in the Way of God against those who fight you, but do not go beyond the limits. God does not love those who go beyond the limits. [2/al-Baqara/190]
”But if the enemy inclines towards peace, you (also) incline towards peace, and trust in Allah.” [8/al-anfal: 61].
”Fight in the Way of God against those who fight you, but do not go beyond the limits. God does not love those who go beyond the limits. [2/al-Baqara/190]
”But if the enemy inclines towards peace, you (also) incline towards peace, and trust in Allah.” [8/al-anfal: 61].
It is interesting that Muslims did not
any permission to even reciprocate any violence, when they were
oppressed, downtrodden and persecuted. That still is the Islamic
norm. Later, permission were granted to reciprocate in self-defense,
but without initiating any aggression or excess.
#9. Non-Judgmental As Allah’s
judgment will be in place in the life hereafter, it is important that
judgments should be deferred to Allah alone and we should not be
judgmental in regard to our fellow human beings.
”That is because when Allah alone was
called upon, you disbelieved, and when associates were given to Him,
you believed; so judgment belongs to Allah, the High, the Great.”
[40/al-Ghafir/12]
This is important in the context of our
dogma and attitude that we already know in this world as to who (as a
group) are not going to heaven. It is correct that we believe in
Islam because we embrace it as the truth. Yet, judgment is for Allah
alone and there are verses that are indicative that Allah’s
Judgment might not be exclusive.
Those who believe (in the Qur'an), and
those who follow the Jewish (scriptures), and the Christians and the
Sabians,- any who believe in Allah and the Last Day, and work
righteousness, shall have their reward with their Lord; on them shall
be no fear, nor shall they grieve. [2/al-Baqara/62]115
What does it mean that “on them shall
be no fear, nor shall they grieve”? If there were any additional
conditions for salvation – the most important thing – why would
those conditions be specified in the Qur’an and right in this
verse? Did Allah change his mind later? Why would it be left
ambiguous? Why such matter would be left to hadith? Yet, these are
theological issues, and we should not be too dogmatic about such
matters one way or another. We do believe that Islam is truth and we
believe in the Prophet Muhammad as the last messenger. However, we
should not be judgmental about this matter. Such judgmentalism unduly
alienates others, and it makes us either arrogant or self-gratified,
thinking that heaven for us exclusively.
As Khaled Abou El Fadl explains:
“Although the Qur’an clearly claims
that Islam is the divine truth, and demands belief in Muhammad as the
final messenger in a long line of Abrahamic prophets, it does not
completely exclude the possibility that there might be other paths to
salvation. The Qur’an insists on God’s unfettered discretion to
accept in His mercy whomever He wishes. In a rather remarkable set of
passages that, again, have not been adequately theorized by Muslim
theologians, the Qur’an recognizes the legitimate multiplicity of
religious convictions and laws.”116
#10. Rule of law
The essences of rule of law are several: The essences of rule of law are several: (a) Equality of everyone before the law and no one is above the law, where laws are based on objective, accessible rules; (b) Judiciary is independent; (c) Enforcement of law is civil and non-partisan; and (d) Conflict resolution occurs through the legal system and/or the political system without violence of the citizens.
Even the Prophet was not above the law. Shariah is perverted at its root or core, when some people are above the law, like a dictator, a monarch/king, or a military junta. Shariah’s implementation cannot be considered Islamic, except under rule of law in accordance with Islam.
The essences of rule of law are several: The essences of rule of law are several: (a) Equality of everyone before the law and no one is above the law, where laws are based on objective, accessible rules; (b) Judiciary is independent; (c) Enforcement of law is civil and non-partisan; and (d) Conflict resolution occurs through the legal system and/or the political system without violence of the citizens.
Even the Prophet was not above the law. Shariah is perverted at its root or core, when some people are above the law, like a dictator, a monarch/king, or a military junta. Shariah’s implementation cannot be considered Islamic, except under rule of law in accordance with Islam.
”Say: I would, if I disobeyed my
Lord, indeed have fear of the penalty of a Mighty Day.”
[6/al-An’am/15]
”O ye who believe! stand out firmly
for Allah, as witnesses to fair dealing, and let not the hatred of
others to you make you swerve to wrong and depart from justice. Be
just: that is next to piety: and fear Allah. For Allah is
well-acquainted with all that ye do.” [5/al-Maida/8] 'A'isha
reported that the Quraish had been anxious about the Makhzumi woman
who had committed theft, and said: Who will speak to Allah's
Messenger (pbuh) about her? They said: Who dare it, but Usama, the
loved one of Allah's Messenger (pbuh)? So Usama spoke to him.
Thereupon Allah's Messenger (pbuh) said: Do you intercede regarding
one of the punishments prescribed by Allah? He then stood up and
addressed (people) saying: O people, those who have gone before you
were destroyed, because if any one of high rank committed theft
amongst them, they spared him; and it anyone of low rank committed
theft, they inflicted the prescribed punishment upon him. By Allah,
if Fatima, daughter of Muhammad, were to steal, I would have her hand
cut off. [Sahih Muslim, #4187]
In any system, even if one individual
or office is above the rule of law, it is essentially unislamic and
illegitimate. Thus, any autocracy, dictatorship or monarchy based on
absolute authority of one individual, a family or a group, is
unislamic and unacceptable.
#11. Representation and participation
"... that which is with God is
better and more lasting for ... those who hearken to their Rabb, and
establish regular prayer, who (conduct) their affairs by MUTUAL
CONSULTATION, who spend out of what We bestow upon them for
sustenance." [42/al-Shura/38]
Consultation or shura is a vital
process and institution in Islam. The relationships in Islam at
different levels are based on consultation, not coercion or
imposition. Thus, the concept of governance, administration and
leadership is participatory - meaning that those who are affected by
the decision are to be duly consulted. Islamic form of governance is
participatory and accountable.117
Generally speaking, anyone whose life
is affected by a decision, except in case of insanity or childhood,
the input of the affected person(s) should be sought. This process of
seeking input should be institutionally organized, wherever
appropriate, relevant and feasible.
#12. Emphasis on substance over form
“It is not righteousness that ye turn
your faces Towards east or West; but it is righteousness- to believe
in Allah and the Last Day, and the Angels, and the Book, and the
Messengers; to spend of your substance, out of love for Him, for your
kin, for orphans, for the needy, for the wayfarer, for those who ask,
and for the ransom of slaves; to be steadfast in prayer, and practice
regular charity; to fulfill the contracts which ye have made; and to
be firm and patient, in pain (or suffering) and adversity, and
throughout all periods of panic. Such are the people of truth, the
Allah-fearing.” [2/al-Baqarah/177]
The Prophet said: "Verily Allah does not look to your appearance or wealth, but he looks to your hearts and your deeds." [Sahih Muslim, Vol. 4, #6221]
The Prophet said: "Verily Allah does not look to your appearance or wealth, but he looks to your hearts and your deeds." [Sahih Muslim, Vol. 4, #6221]
This is one of the most fundamental
problems facing Muslims today, because substance in terms of
underlying spirit or value is delinked from the forms and rituals.
Thus, memorization of some chapters or the entire Qur’an is highly
emphasized, but not studying and understudying the Qur’an.
The devotion of common Muslims with
ritual worships, as based on the five pillars of Islam (public
declaration of faith, prayer, fasting, almsgiving, and
pilgrimage).118 Each of these five pillars are profoundly related to
specific values Islam wants to inculcate among its adherents. Thus,
in regard to salat (prayer), which Muslims are supposed to perform
five times a day and preferably in congregation, whenever possible,
the Qur’an mentions:
“Recite what is sent of the Book by
inspiration to thee, and establish regular Prayer: for Prayer
restrains from shameful and unjust deeds [fahisha wa munkar]; ...”
[29/al-Ankabut/45]
Quite regrettably, both shameful as
well as unjust deeds abound in Muslim societies. Torturing and
persecuting brides/wives for dowry, throwing acids to girls who do
not want either to accept a marriage proposal or concede to
extramarital sex, honor killings, etc are particularly prevalent in
South Asia, the largest concentration of Muslims in the world, and
reminders of the disconnect between the rituals and the spirit. In
many such countries, the women are worst kind of victims without any
legal protection. Indeed, the Hudood Ordinance in Pakistan that was
promulgated under a dictatorial/military (thus, unislamic) rule of
General Ziaul Huq ended up causing many victims of rape to be
prosecuted and incarcerated for crimes of “adultery”.119
Ironically, it is the religious establishment, with a hold on the
masjid-bound Muslim community, that provided and continues to provide
support to this Hudood Ordinance and oppose its repeal or reform.
Fasting (siyam) is another important
pillar of Islam. All able-bodied Muslims, with certain exceptions,
fasting during the month of Ramadan is obligatory. In any
Muslim-majority country or even in Muslim communities elsewhere, one
can observe the special affinity Muslims have for this month
designated for fasting.
O ye who believe! Fasting is prescribed
to you as it was prescribed to those before you, that ye may (learn)
taqwa (God-consciousness)” [2/al-Baqara/183]
The concept of taqwa (God-conscious) is
pivotal to Islam and the life of Muslims, because it is regarded as
the prerequisite for benefiting from the divine guidance in the
Qur’an.
This is the Book; in it is guidance
sure, without doubt, to those who are muttaqun (having taqwa).
[2/al-Baqarah/2]
This God-conscious is not merely to
build a closer relationship with God, but also to be conscious of
one’s attachment to the humanity. Fasting helps those who have food
on their tables on a regular basis understand and appreciate hunger,
and the suffering involved in case of poverty, destitution or
deprivation. As the experience of fasting is expected to enhance an
individual’s moral self-restraint, it also should attune them to
the suffering of fellow human beings. However, while one observes a
great deal of generosity during this period to feed the hungry, one
also observes at the same time a lack of sensitivity toward
systematically address the problem of poverty and deprivation that
rob a human being of his or her fundamental human dignity and pushes
to knock at the doors of others in begging for pittance.
Islam emphasizes cleanliness (taharah)
and the ablution before prayer is generally obligatory. Even a common
or illiterate Muslim knows that taharah is half of one’s faith,
according to Islam.
Abu Malik at-Ash'ari reported: The
Messenger of Allah said: “Cleanliness is half of faith ...”
[Sahih Muslim, #432]
One generally observes meticulousness
of practicing Muslims in attaining ritual cleanliness. Many Muslims
in trying to purify after urination use fabric pieces or even
pebbles. Some even publicly walk back and forth to get rid of the
last drop of urine, so that their clothes used for prayer are not
defiled by any urine drops. However, there is a big disconnect in
this regard between cleanliness and sanitation. The very same people
who are so devoted to cleanliness seems to be impervious to the
problem those wet fabric pieces or pebbles may cause the drainage
system to clog and causing public health hazard.
Another area where form overwhelms is
in Islamic finance and banking, where gross misunderstanding and
misinterpretation have lead to consider interest as prohibited (based
on the prohibition of riba) and thus come up with products that are
labeled as interest-free, but these products are essentially
interest-free only in name or form. As Dr. Mahmoud El Gamal, Chair of
Islamic Economics, Finance and Management at Rice University,
observes:
“By attempting to replicate the
substance of contemporary financial practice using premodern contract
forms, Islamic finance has arguably failed to serve the objectives of
Islamic Law (maqasid al-Shari’ai): Wherever the substance of
contemporary financial practice is in accordance with Islamic Law,
adherence to premodern contract forms (with or without modification)
leads most often to avoidable efficiency losses, thus violating one
of the main legal objectives that defined classical Islamic
jurisprudence. Conversely, by focusing on Islamicity of contract
forms rather than substance (in part to justify efficiency losses),
Islamic finance has often failed to serve the economic purpose for
which certain premodern contract structures were codified in
classical jurisprudence. ...
‘Islamic’ in ‘Islamic finance’
should relate to the social and economic ends of financial
transactions, rather than the contract mechanics through which ends
are achieved.”120
Indeed, the intent behind the
prohibition of riba is primarily related to zulm (injustice,
exploitation).
O ye who believe! Fear Allah, and give
up what remains of your demand for riba, if ye are indeed believers.
If ye do it not, Take notice of war
from Allah and His Messenger: But if ye turn back, ye shall have your
capital sums: Deal not unjustly, and ye shall not be dealt with
unjustly. [2/al-Baqarah/278-279]
Islam’s prohibition of riba is
categorical. Therefore, it is only expected that Muslims would take
it seriously. However, when the spirit of the prohibition,
injustice/exploitation, is delinked from the legal rulings, one finds
that zulm (injustice/exploitation) not just takes a back seat, but
also it is paid only lip service. Thus, the existing Islamic banking
and finance movement has achieved remarkable success, but as a
“prohibition-driven” industry, it is now delinked from the
broader goals of development and poverty alleviation.121
#13. Embracing life-experience as part
of our collective learning curve
Contrary to the orthodox understanding and approach, Islam does not ask us to be exclusively text-oriented. In understanding this world, in many ways, it wants us to benefit from the experience of life. It commands us to travel to see and learn about the history. It asks us to observe, think and reflect, not just burying our heads in the sacred books, but also to utilize our eyes and ears.
Contrary to the orthodox understanding and approach, Islam does not ask us to be exclusively text-oriented. In understanding this world, in many ways, it wants us to benefit from the experience of life. It commands us to travel to see and learn about the history. It asks us to observe, think and reflect, not just burying our heads in the sacred books, but also to utilize our eyes and ears.
”Many were the Ways of Life that have
passed away before you: travel through the earth, and see what was
the end of those who rejected Truth.” [3/ale Imran/137]
Islam is not for just compliant,
mimicking minds. Rather it is for observing, inquiring and thinking
minds.
”Is it not a guidance for them (to
observe) how many generations We destroyed before them, amid whose
dwelling places they do walk? Lo! therein verily are portents! Will
they not then heed?” [32/al-Sajdah/26] "Behold! Abraham said:
'My Rabb! Show me, how you give life to the dead.' He said: 'Do you
not then believe?' He said: 'Yes! but to satisfy my
own understanding.' He said: 'Take four birds, tame the to turn
to you; put a portion of them on every hill, and call to them; they
will come to you (flying) with speed. Then know that God is Exalted
in Power, Wise.'" [2/al-Baqara/260]
”Do they not reflect in their own
minds? Not but for just ends and for a term appointed, did Allah
create the heavens and the earth, and all between them: yet are there
truly many among men who deny the meeting with their Lord (at the
Resurrection)!” [30/ar-Rum/8] ”Do they not travel through the
land, so that their hearts (and minds) may thus learn wisdom and
their ears may thus learn to hear? Truly it is not their eyes that
are blind, but their hearts which are in their breasts.”
[22/al-Hajj/46]
It is not an exhaustive list. The
abovementioned values or principles are based directly on the Qur’an.
These values and principles should be important parameters in
deriving or establishing laws in light of non-Qur’anic sources.
When the non-Qur’anic sources, including hadith, conflict with
these clear principles of the Qur’an (and as the model, the life of
the Prophet can’t be contradictory to the Qur’an), these
principles must be given precedence. Furthermore, laws and codes, as
needed, must not be approached in an atomistic manner. Since these
principles are Qur’anic principles, our laws and codes must not
violate or compromise such principles, without compelling evidence to
the contrary.
VI. Conclusion
Every society, to be functional, needs
laws. However, laws must be based on certain essential values as
articulated above and derived directly from the Qur’an,122 and
having laws and a legal framework must not lead to dehumanized
legalism. Since shariah is erroneously equated with laws, it is
important to understand and acknowledge that, except in the limited
aspects of the Qur’an-specified injunctions and hudood
(punishments), shariah is essentially a human construct. Therefore,
in general, it can’t be labeled, understood or regarded as
“eternal”, “divine” or “immutable.” Such notion stands
contradicted by the Qur’an, the Prophetic legacy and the practice
of (or the recognition of the need for) continuous ijtihad.
If shariah is understood as the Divine
Will “as it exists in the mind of God”, then it is divine,
immutable and infallible. However, then we can’t use the expression
shariah as synonymous with fiqh or Islamic law. We can’t have it
both ways. As argued and explained in this essay, the proper
understanding of shariah is as “divine will”, instead of laws and
codes that are primarily human constructs, even if informed by or
rooted in a divine source, such as the Qur’an. Reducing shariah to
the level of law or code is simply untenable. It not only
misrepresents Islam, but also serves as the feeder for legalistic
tendencies that have become now entrenched and robbed Islam of its
vitality and dynamism in guiding us in this world in a
problem-solving manner.
Proper understanding of shariah, from
the Islamic perspective, is important not merely for theological
reasons, but also to restore and reclaim the dynamism that enabled
Muslims under the leadership and guidance of the Prophet to lay the
foundation of a great community, leading to a vibrant society and
civilization, worshipping God and serving the humanity in His path.
Through self-critical discourse,
creative and constructive intellectual rejuvenation, moral and
religious clarity that is simple and unambiguous, dynamic
problem-solving approach, and value-orientation rooted in the Qur’an
and inspired and guided by the Prophetic legacy, Muslims can better
fulfill their duty to themselves, to the humanity and above all to
their Benevolent Creator.
===
This work has been cited in:
1.Saudi Arabia’s Political System, A
country report by Gregor Landwehr for Academic Association for
Security Studies, 2007.
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