In the proposed Islamic state, the legal system should be run according to the Shariah. The system will be an independent arm of the constitution. It will be tied in with the educational system of the country and have a meritocratic basis on the level of Islamic education one has. Thus, for instance and in relation to the legal system, a citizen who has taken Islam as a subject at the high school level may receive one vote, a citizen having done the same at a college level may receive 5 votes, and a citizen that has studied Islam at the graduate level may receive 10 votes these votes will go to electing the Legal institution of the country.
This may in turn include a general body and council that will discuss and implement legal developments and be responsible for running the judiciary. This voting mechanism (and other similar secondary voting mechanisms) could run simultaneously with the political continuous flow elections.
The mandate of the Judiciary will be restricted to those laws that are explicitly given in Islam, i.e. the nass ordinances (more on that later), to upholding the constitution and to implementing the laws passed by the legislature. The legislature will have no authority in those laws that are explicitly given to us by Allah. However, on all other issues the legislature will be ascendant and the advice of the judicial Islamic council may be sought but remain non-mandatory.
The police force has to be directly subservient to the Judiciary. As such, the Judiciary will be able to fire and replace any officer of the law. Officers will maintain the Muslim equivalent of habeas corpus which, while a western term, is easily supplanted into the time of Prophet Muhammad (peace be upon him). Citizens of Medina were not unlawfully detained. Further, examples of the importance for the writ of the law abounds in the example of Prophet Muhammad (peace be upon him). Examples of impartiality and fairness in the courts of Medina are also well documented.
The Judiciary should stand as one of the pillars of the Islamic State, and should be independent of the other arms within the constitution.
Reforming Our Legal System
Muhammad Asad in his book This Law of Ours describes in detail one of the central problems with the interpretation of our deen. He finds the problem routed in the fiqi outlook over the zahiri. He calls for a reformulation of the shariah based on the nass ordinances and a codification of this law as the Living Constitution of Islam. Such a reformulation allows clarity of what is Islamic law, what the community as a whole can legislate as Muslim Law and what is to be left to personal ijtehad. This line of thinking is not Asad’s innovation but rather goes back to Ibn Hazm, Ibn Jarir at-Tabari and can even be argued to go back to the opinions of the Sahaba.
This author is unable to do better than to recommend a read of Muhammad Asad. However, since his book is a rare find today, the rest of this chapter has been dedicated to a heavily borrowed rendition and summary of This Law of Ours. I would still recommend his authorship over mine, for the lucidity and command of Asad’s English is superior to mine.
The deen of Islam is composed of two propositions:
1) There is no deity save Allah
2) Muhammad is the Messenger of Allah.
In understanding the guidance from Allah, a Muslim is obliged to accept the example and guidance of Muhammad (peace be upon him):
Whatever the Apostle of Allah commands you, accept, and whatever he bids you, avoid (59:7)
This guidance can be found in the ahadith, the Sunnah of the Prophet (peace be upon him). The work of the great muhadithun (hadith scholars) has made it possible to distill the purity of hadith with as best a human effort as possible.
The laws given in the Quran and Sunnah together represent the Law of Islam; the Quran provides direct commandments and the hadith provides:
1) Additional laws – Sunnah laws
2) Amplification and elaboration of application of Quranic Laws
These laws together, called the nass ordinances, are simple to comprehend for every one of you…:
We have made a religious law and an open road for every one of you (5:48)
The law as defined here is of course not the sum total of Islam but deals with the zahiri (outward) aspect of man’s life – to his actions and behavior – it does not include the spiritual aspect of Islam which also includes spiritual teachings from the Two Sources.
The Law Giver has constituted the Law in such a manner that it is neither too complex that it will elude the intelligence of the common man who is obliged to know the Law of Islam, nor overly simple that it cannot provide an effective ethical framework for man. For both over complexity and over simplicity would be detrimental and the balance is best understood by Allah.
No specialized erudiation is needed to understand the Law of Islam as erudiation (i.e. deductive reasoning and analogy) is not in everyone’s ability and:
We have made a religious law and an open road for every one of you (5:48)
God does not impose upon any soul a duty beyond its ability (2:286)
This, in essence, is the zahiri outlook which is opposed to the fiqi outlook dominant today. The Zahiri outlook has been a minority opinion among scholars since the 3rd Hijri, although it has been held by prominent scholars such as Ibn Hazm and At-Tabari as well as (by argument) the early Muslims.
What the Zahiri Outlook Does Not Mean:
The zahiri outlook does not mean that every “man-in-the-street” should be able to twist Islamic Law through his own ijtehad but rather to remove every kind of ijtehad, analogical deduction, expert erudiation, from the Law of Allah.
The elimination of ijtehad from shariah does not imply the elimination of ijtehad from our daily life. Allah’s gift of free will, reason and creativity must be utilized within the framework of the Shariah.
Zahiri versus Fiqi Argumentation
Faqih’s Argument 1:
· The Law defined by the Zahiri outlook is not the total law but much greater, derived by the penetrating deductions of great imams of the past.
· These great imams were solely qualified to do this ijtehad.
· The rest of the Muslims are obliged to follow these deductions.
Zahiri Response 1:
® The Quran and Sunnah do not indicate that we are to follow other men’s deductions.
® These imams and scholars are not mentioned in the Two Sources.
® Whatever Allah and His Prophet intended to be the Law of Islam has been clearly formulated as such in the Quran and Sunnah, which formulation, allowing for no alternative meanings we describe as nass. These are absolutely unambiguous by virtue of the wording and must be taken at face value only and no other value.
Faqih’s Argument 2:
· The nass of the Quran and Sunnah are the basis of the Law but not the whole of the Law. More laws can be derived by implication.
· Great intellect and erudiation (i.e. use of deduction and analogy) is needed to unearth the intention of the Law Giver.
· The Shariah must deal with all exigencies and problems of our life and this is the task of fiqh.
· The scholars of the first three centuries of Islam are exclusively qualified for this task of expounding the Law of Islam because of their piety, knowledge and nearness to the time of the Prophet (peace be upon him).
Zahiri Response 2:
® Nearness to the Prophet’s (peace be upon him) time is not a special qualification as they did not have any more material to work with than us; the same number of Quranic verses and ahadith exist today.
® We are more fortunate that it was only after their time that a critical study of ahadith took place.
® It is not necessary to ‘discover’ such laws and to claim our discoveries as having Shariah validity.
® It is not necessary to have such an all embracing legislation. Allah (swt) did not intend to make Muslims into a community of automata running like clock-work to the details of a most minute mechanical system covering every detail of our lives.
® Rather, a Muslim is meant to be the highest type of man – freely obedient to the Eternal Law, disciplined in his actions and thoughts, courageous in the exercise of his intellect, ever bent on finding the deeper truth of Allah’s message and on improving his social organization.
® This implies the constant use of man’s intellect. The Shariah was thus never meant to be a cage for human endeavor but a divine framework of law, aided by Man’s intellect, it would allow him to rise to the greatest heights of knowledge and achievement.
® According to the hadith of the Prophet’s conversation with Muadh b. Jabal whatever is not clearly given as Law in the Quran and Sunnah is subject to one’s independent judgment, which must follow the spirit of the Two Sources. It is clear from this and other hadith that every ijtehad is a matter of individual knowledge and conscience and cannot have legal force in any Shariah sense.
Faqih’s Argument 3:
· Such a procedure was permissible in the case of a great companion such as Muadh b. Jabal or in the case of a recognized Imam but not in the case of ordinary mortals.
Zahiri Response 3:
® There is no evidence for this claim. i.e. the Prophet (peace be upon him) did not specify that this was only for Muadh b. Jabal.
® The Faqih is evading the issue that the Law is immutable and final.
We did not neglect anything in the Book (6:38)
Today I have perfected your religion for you (5:3)
Whenever God and the Apostle have decided a matter, it is not for a faithful man or woman to follow another course of their own choice (33:36)
Quotes from Ibn Hazm
“And if (in order to justify their claims to qiyas and ta’lil) the upholders of these methods quote Traditions or Quran verses containing comparisons (i.e. analogies) between one thing and another, or declaring that God has ordained such-and-such a thing for such-and-such a reason – the answer is this: ‘All that God and His Apostle have mentioned by way of comparison or cause, is truth absolute, and none may go against it: but this, precisely, is the nass on which we rely! But all your attempts at imitating Him in matters of religious legislation and at ascribing “causes” (to Shariah ordinances) beyond what God and His Apostle have made manifest by means of nass: All this is utterly wrong – a way which God has not permitted us to go….
“All upholders of qiyas contradict each other in their deductions; and you won’t find a single problem in the law in which the qiyas of one group of scholars, claimed by them to be right, is not diametrically opposed to a qiyas evolved by another group. All of them agree that not each and every qiyas could possibly be sound, and not each and every ra’y true: but whenever we call upon them to produce an objective criterion which would enable us to discriminate between a sound qiyas, ra’y or ta’lil on the one hand, and a bad qiyas, ra’y or ta’lil on the other hand – they merely stutter in confusion. Whenever one presses them on this point, the futility of all their claims becomes manifest: for they are absolutely unable to give a sensible answer….
“And so we tell them: ‘The nass (of Quran and Sunnah) is absolute truth; but what you are aiming at – namely, at arbitrary additions to the nass-laws by means of your personal opinions – is utterly wrong….
“The Shariah in its entirety refers either to obligatory acts (fard), the omission of which constitutes a sin; or to prohibited acts (haram), the commission of which constitutes a sin; or to allowed acts (mubah), the commission or omission of which does not make man a sinner. Now, these allowed acts are of three kinds: firstly, acts which have been recommended (mandub) – meaning that there is a merit in doing them, but no sin in omitting them; secondly, acts which have been disapproved of (makruh) – meaning that there is a merit in abstaining from them, but no sin in doing them, thirdly, acts which have been left unspecified (mutlaq) – being neither meritorious nor sinful whether done or omitted. For, God has said:
‘He has created for you all that is on earth’; and He also said,
‘It has been distinctly shown to you what you are forbidden to do.’ Thus it has been made manifest that everything is lawful (halal) except what has been clearly described as forbidden (haram) in the Quran and in the Sunnah….
“…. In one of his sermons the Apostle of God said: ‘O people! God has made the hajj obligatory on you; therefore perform it.’ Thereupon somebody asked, ‘Every year, O Apostle of God?’ The Apostle remained silent; and the man repeated his question thrice. Then the Apostle of God said: ‘Had I answered Yes, it would have become incumbent on you (to perform a hajj every year): and indeed it would have been beyond your ability to do so. Do not ask me about matters which I leave unspoken; for, behold, there were (communities) before you who went to their doom because they had put too many questions to their prophets and thereupon disagreed (about their teachings). Therefore, if I order you anything, do of it as much as you are able to do; and if I forbid you anything, abstain from it.’ (Sahih Muslim).
“The above hadith circumscribes all principles of the religious law from the first to the last. It shows that whatever the Prophet has left unspoken – neither ordering nor forbidding it – is allowed (mubah), that is, neither prohibited nor obligatory. Whatever he ordered is obligatory (fard), and whatever he forbade is prohibited (haram); and whatever he ordered us to do is binding on us to the extent of our ability alone….”
Ibn Hazm’s views illustrate that these and similar views are not bida (innovation) but shared by many earlier scholars. This also includes Ibn Jarir At-Tabari who, commenting on surah 45:18, defines Shariah as all injunctions and prohibitions contained in the Quran and Sunnah including the laws of inheritance (faraid) as well as the restrictive ordinances regarding food, marriage, etc and the punishments to be inflicted on transgressors (hudud).
By argument, these views may even be extended substantively to the views of the sahabah including the Khalifa-e-Rashidun. The zahiri views have been a minority view since the 3rd century Hijri.
How the Fiqi Outlook Came About
There is a tendency to evaluate all aspects of life through religion. This tendency is in itself sound and caused some great early scholars to search beyond the nass ordinances. This was also influenced by their era which was defined by a heavy spiritual and esoteric backdrop.
These early scholars were however not aware of psychological factors which render every deduction subjective, thus only valid relatively.
This relativity and subjectivity is dependent on each generation’s intellectual development and are time bound in their nature. To assume otherwise and to claim that these early scholars found answers in any final sense amounts to assuming that the level of the Quran and Sunnah is fixed at the time and peculiarities of these “early generations”.
This would not make sense as the Two Sources are not time bound but provide answers for all times and all changing conditions. The Shariah, wisely formulated by Allah, provides a timeless framework and flexibility within that framework for changing times and circumstances.
This cannot be said of the ijtehad-based laws within the fiqi outlook.
Critical Importance to Our Future
The attempt, in multiple instances in the past, to unify the Shariah code of the major schools of Islam has failed. This has not been due to the lack of sincerity of effort.
According to Muhammad Asad, who has spent over half a century pondering over our crisis as an Ummah, there is no other way forward for us than to codify the Law of Islam on zahiri grounds. He writes that our present dead-end in the fiqi outlook can only increase our disgust with ourselves, defeatism, doubts and mutual animosity. This gradually leads to the abandonment of Islam as a practical proposition and destroys our culture. He writes:
“I cannot see any other way to our recovery. If there is some such other way, I challenge those who claim to have found it to show it to us. Simply talking about the need for a “rebirth of faith” is not much more worth than bragging about our past and extolling the greatness of our predecessors. Our faith cannot be reborn unless we understand to what practical goals it will lead us. Generalities won’t help us either. IT won’t do us the least good if, for instance, we are glibly assured that the socio-economic programme of Islam is better than Socialism, Communism, Fascism, Liberalism, and God knows what other “isms” which the West has produced for its own good – its undoing. We ought rather to be shown, in unmistakable terms, what alternative proposals the shariah makes for our social life – what its true concept of society is, what views it holds with regard to individual property and communal good, labour and production, capital and profit, employer and employee, the State and the individual; what alternative it proposes to banking (which is an Islamic society is impossible because of the obvious prohibition of riba), what its practical measures are for a prevention of man’s exploitation by man; for an abolition of ignorance and poverty ; for obtaining bread, blankets and homes for every man and woman….
“Now, I do not mean to say that these material things of life are Islam’s sole concern; certainly not: for this religion of ours would not be God’s Message to man if its foremost goal were not man’s growth towards God: but our bodies and soul are so intertwined that we cannot achieve the ultimate well-being of one without taking the other fully into consideration. Specious sermonizing about “faith” and “spirit” and “surrender to God” cannot lead to the establishment of true Islam on earth unless we are shown how to gain faith through a better insight into God’s plan, how to elevate our sprit by living a righteous life, and how to surrender to God by doing His will by ourselves and by others. And all this, as far as Islam is concerned, can be gleaned from the Shariah alone.
“And the Shariah can never become effective unless it becomes an open book for every one of us.”
The proposed revival is vital for:
1) Uniting the Ummah on common grounds.
2) Making the Law of Islam a practical proposition in our social life.
3) Making the Law of Islam accessible to every Muslim.
4) Benefit from the economic program of Islam and not in meaningless resolutions, conferences and “Islamic Banking”, the last of which has turned into a rubber stamping mockery of Islam.
Asad’s Plan of Action
The first step for a Muslim community to live according to the tenets of Islam and to implement its social and economic program is to codify the Shariah in easily comprehensible form. This can be achieved through the following plan of action:
1) A small representative panel of “ulama” is entrusted with the codification of the nass ordinances.
2) The criteria for panel members are that they are fully conversant with:
a. The Arabic language
b. The methodology and history of the Quran
c. The science of hadith
3) Work must proceed on the zahiri lines as explained before and must exclude all kinds of “interpretation” handed down from previous times. Only such ordinances are to be considered that answer the full linguistic definition of nass: statements, injunctions and statutes that are self-evident (zahir) in their wording with “a particular meaning, not admitting any other than it” where no difference of interpretation can arise.
4) Selection of nass ordinances from ahadith will require careful consideration of the riwayat against the historical background. Only traditions with the highest standards should be considered. Traditions with the slightest opening for legitimate criticism should be excluded. (This is only for constructing the Shariah code and not for the purpose of ijtehad where Traditions that are probably right should of course continue to be used).
5) Careful consideration should be taken to ensure that ordinances made that were time-bound in the time of the Prophet (peace be upon him) are sifted from those which have universal validity. These would reveal themselves by their particular wording, the explanations of the Companions or by another hadith. Otherwise, the ordinance is to be considered universally valid.
6) The entire context of a particular hadith or ayat is to be considered and not taken in isolation and in a disjointed manner. An Ayat which may not appear to have a nass ordinance may become of relevance when considered in conjunction with another ayat or hadith. Likewise, a nass ordinance may reveal itself when several traditions are placed together. The Two Sources form an integral whole.
7) The nass ordinances as described must be collected in book form and circulated among scholars nationally and internationally for suggestions and criticism, particularly on the treatment of hadith-based ordinances. Responses should then be treated on their merit.
8) A final Arabic original is to be made of the Code of the Shariah and Muslim scholars and institutions should collaborate to translate the code into any language necessary. Translations are to be closely scrutinized to remove “interpretive” translation through personal bias and arbitrary choice of words and phrases.
9) The codified nass ordinances, with the Arabic as the master copy, will then serve as the Constitutional Law of Islam.