This Law of Ours - Muhammad Asad

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This Law of Ours

Let us suppose the case of an intelligent non- Muslim of our time who, for some reason or other, has studied the Arabic language and has become ally proficient therein. One day he takes up the Qur'an and is impressed by the beauty of its diction and the spiritual depth of its ideas. He reads on and on and gradually the immortal truth of this look unfolds itself before him; and when he is at 1st convinced that it is the truth, he embraces Islam.

should like to stress the point that so far our friend has not come into contact with the so-called Muslim world; all that he knows about Islam is, ,t this stage, derived from the Qur'an alone. In the freshness of his enthusiasm he tries to find out, from this very Book, what is incumbent on a Muslim. Belief in the Oneness of God-indivisible n His Existence, unattainable by human thought, all-embracing in His Wisdom and Power-and, then, in the Apostleship of Muhammad, Last of the prophets, Mercy to all the worlds: this our convert Las already accepted in form as well as in spirit. ~d when he looks into the Qur'an for guidance as to how a Muslim should live, he finds in it a series of injunctions relating to ethics, personal

1

behaviour and social life-some of these injunctions ~ing clear-cut and obvious by virtue of their ordering, others not so self-conclusive. But this inconclusiveness is only apparent and not real: Ir very soon our friend comes upon Qur'anic lusions to the guidance of the Prophet, to whom every problem should be referred whenever the faithful are in doubt as to what is the Right Way: ld so the convert realises that the Qur'an was :ver meant to be used without the Prophet's lidance-which is the ultimate reason why the reed of Islam is composed of two propositions: rhere is no deity save God, and Muhammad is God's Apostle." The Muslim's obligation to accept e Prophet's guidance is laid down in many verses, r example: .

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Whatever the Apostle commands you, accept, and whatever he forbids you, avoid" (surah 59 : 7).

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He does not speak out of his own desire" (surah , : 3)-in other words, whatever he ordains is a

~ult of Divine inspiration.

Now where is this apostolic guidance to be had? Obviously-so reasons our convert-in ~ authentic documents, caIled ahadith, which reveal us the Prophet's Sunnah, or his way of life. And

so he turns to the study of badill1. and to the critical sciences relating thereto: for he knows by now that not every badill1. purporting to narrate the Prophet's sayings and doings is really authentic, and that extreme care is required to sift the enor-

mous material handed down to us. After having convinced himself that the labours of the great mubaddill1.iin (as the scholars devoted to the critical ! study of badill1. are called) have indeed made it possible to discern, with as perfect an accuracy as

is given to human intellect, between what is historically sound and what is weak (or even intentionally fabricated)-after having convinced himself of all .. this, our friend takes up the abiidill1. proven as authentic and looks in them for laws which would

! complement the Qur'anic laws: both those whichhe has already grasped and those which as yet elude his full comprehension. And thereupon he finds in the abadlll1. new series of laws. Some of them are explanations of the Qur'anic laws; others are evidently meant to amplify the latter and to show their application to concerte cases; and, finally, there are in the Prophet's Sunnah laws concerning problems not specifically mentioned in the Qur"!:n. Taken together, the ordinances of aI Qur'an and Sunnah represent the Law of Islam,

I called shari' ah, of which God has said in the HolyBook,

"We have made a religious law and an open road for every one of you" (surah 5 : 48).

"For every one of you. ..": and so our friend, who has learnt to regard the injunctions of Qur'an and Sunnah as addressed directly to himself (for God, in His infinite Wisdom, must have anticipated his being and his conversion to Islam in exactly the same way as He has anticipated every other thing in His Creation), realises that the Law-Giver has such wise constituted that Law that it can be understood and followed. by every human being blessed with normal intelligence: that is to say, the clauses of the Law-whether contained in the Qur'an or in the Prophet's Sunnah-are so devised as to require no specialised erudition for their understanding. For, erudition is not within every- body's ability; and

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"God does not impose upon any soul a duty beyond its ability" (surah 2 : 286). On the other hand, every sane Muslim is obliged to know the Law of Islam. Following this trend of thought, the new convert-who has never heard of fiqh in its conventional sense, and is guided only by his inborn intelligence and his reading of Qur'-a:n and Sunnah-says to himself: "I accept as binding on myself every command and prohibition expressed a$ such in Qur'an and Sunnah. Whatever the Two Sources,

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This Law of Ours

or one of them, order me to do, I will do ; and whatever they forbid me, I shall refrain from." In other words, he decides to follow the nay-.\' of Qur'an and Sunnah, firmly believing that this is the sum total of the Law. From his study of the

!c Qur'an and the abadi11! he knows of course that the

:: Law, by itself, is not the whole of Islam-for it t refers only to the outward (zahir) aspect of man's

," life, namely, to his actions and behaviour-thus r being only a means to an end: while the innermost r end and purpose of Islam is man's growth in spiri-

tual perception, his coming-nearer to an under- standing of God's Will, and his conscious integra-

I tion with the plan emanating from that creative Will. But, while not being an end in itself, the Law demarcates the way-the only way-through which, according to Qur'an and Sunnah, that glorious goal can be reached. And so, with the ~ari'ah and the spiritual teachings of the Two Sources before him, our friend realises that he has been given a most definite, clearly outlined frame- work for all his worldly activities and spiritual endeavours; and he decides that henceforth he would adapt his life to this framework, confiding in his knowledge of the Law (which to him is synonymous with the sum of the nass ordinances contained in the Two Sources) and his individual understanding-guided by the Prophet's example in word and deed-of the spiritual teachings of Islam.

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This Law of Ours

An Imaginary Conversation

Is our friend right in resolving upon such a course? Common-sense, as well as the practice of the Companions-of which he has plenty evi- dence in the Traditions-tell him. "Yes, you have found the Right Way." But suddenly a faqih (that is a scholar who has "specialised" in the study of fiqh) gets up and says in a pained voice, "You are not right, dear brother, and my heart bleeds to see you on the way to perdition. What you, together with that obnoxious Muhammad Asad, regard as the 'sum total' of the ~ari'ah is very far from being the sum total. You should know that the great, learned Imam So-and-So conceived the Law in much wider terms, and has given us, apart from the nass ordinances of Qur'an and Sunnah, many more laws derived from the

I Two Sources by means of most penetrating deduc- tions; and Imam Such-and-Such has given us a still wider, more ramified exposition of the Law on the basis of equally penetrating deductions. Those Imams, and some others with them, having spent their whole lives in deducing laws, were intimately acquainted with the principles and methods offiqh, while you, poor fellow, are obvious- ly not. What you know is only the raw material of the Law-or, at the best, its bare bones not yet clothed with flesh. Now this flesh is the ijtihad of the great Ima:ms who-as everybody knows-were

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This Law of Ours

risolely qualified to dicide what ai'e the true precepts 1- of the Law. Unless you accept as binding the legal

deductions of those infallible scholars, your accep-

i tance of Islam is defective and you are most surely

I. on the way to perdition."

Our convert friend is astonished and considera- bly worried, for he does not want to go to perdition: he wants the Pleasure of God. And so, confronted with the obvious disapproval of one who seems to

be "in the know", he stammers." But... I have.

nowhere read of such an obligation to follow another man's or other men's dedutions. ..at least, the Qur'an and all the' authentic abadilll are silent about it...And, to be honest with you, I have never found in either of the Two Sources any mention of those great Imams and scholars; and whatever I know of Islam I have taken from these Two Sources alone, believing that they tell us everything that could or should be known about Islam. As to jiqh, I was always of the opinion that in the Arabic language this word means 'understanding': and so I have tried, in all humility and with great long- ing, to understand what God and His Apostle have ordered me to do or to refrain from, and have endeavoured to behave accordingly. Besides, my reason tells me that whatever God and the Prophet intended to be law, has been clearly formulated as such in Qur'an or Sunnah: which formulation,

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allowing of no alterhative meanings, we describe "~ as na,l',I'. How can it be, then, that by following those clearly formulated laws to the best of one's conscience is not deemed enough for a Muslim? " ~

~ The friendly faqih shrugs his shoulders: "The na,l'oY of Qur'an and Sunnah is, of course, the basis of all Law; but it is not the whole of the Law. Apart from what has been laid down in na,l',I', the Book of God and the Sunnah of our Prophet con- tain, by implication, many more laws. You will admit that it requires very great erudition to unear- then those implied laws, to weigh all pros and cons, to decide what mayor may not have been the Law-Giver's intention with regard to a parti- cular problem-in short, to establish the ~ari'ah in such a way that it could regulate all exigencies and problems of our life: and this is the task of fiqh. Such a discovery of ~ar'i laws by means of fiqh is open only to the penetrating intellect of a very great scholar: and who could doubt that the scholars of the first three centuries of Islam were, by virtue of their comparative nearness to the time of the Prophet, supremely-nay, exclusively- quali- fied to expound the Law of Islam? You simply have to follow their deductions; otherwise you are bound to fall into error and will find yourself on the road to perdition."

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~"Well," replies the new convert, "so far as those great scholars' nearness ~o the time ~f the Prophet is concerned, I do not think that this constItutes a special qualification. They may have been, because of that nearness, more pious than we are: but had

they any more material to work upon than we have? Had they more verses of the Qur'an or more Traditions of the Prophet at their disposal? As regards this last-named point, I believe that we of the later generations are even more fortunate than those

early scholars were-for, on the whole, it was after their time that a critical study of hadith. has set in. .. With all the results of that protracted study before us, we are now in a position to draw upon a greatfield of hadith in the certain knowledge that whatever perspicacity, whatever critical acumen men's minds are capable of, has been expended on establishing

: a method by which a weak hadith could be discerned from a sound one. Why, then, should we ~' believe that those old (and undeniably great) scholars were the only qualified ones to 'discover' laws !; supposedly implied in Qur'an and Sunnah besides

 the nass laws? And-is it really necessary to 'discover' such laws and to claim that our discoveries have ~ar'l validity?"

The faqih permits himself a smile: "If you do not attempt to discover the laws which are implied in Qur'an and Sunnah and restrict yourself to the

This Law of Ours

nass ordinances alone, how can you expect to have a system of law which would cover all exigencies of life ?"

"But is it necessary to have such an all-embracing legislation?" asks the convert. "Did the Law-Giver really intend to let every movement of our hands, every turn of our heads, every step that we make, be regulated and rigidly fixed by law? Did he really intend to make the Muslims into a community of automata running like a clock-work to the dictates of a most minute, mechanical system of law covering every detail of our lives? Did he not, rather, aim at making a Muslim the highest type of man-freely obedient to the Eternal Law, disciplined in his thoughts and actions, courageous in the exercise of his intellect, ever bent on finding deeper truths in God's Message, and on improving his social organisation? Does not all this imply man's constant use of his intellect? Does it not imply that the ~ariah was never meant to be a cage for human endeavour but, rather, a Divine framework of law on the basis of which man, aided by his unceasing ijtihad, could rise to the greatest heights of knowledge and achievement?"

And here the convert reminds his interlocutor of that famous hadith of the Prophet's conversation with Muadh b. Jabal, and says, "Don't you see that,

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This Law of Ours

according to the Prophet himself, whatever is not clearly given as law in Qur'an and Sunnah is subject to one's independent judgment-which must, of course, follow the spirit of the Two Sources? Is it not clear from the whole context of this and

i.. other Traditions that every such ijtihad is a matter of individual knowledge and conscience and cannot, therefore, have any legal force in the ~ar'i sense 1"

To this, the well-meaning faqih has only an indulgent smile: "Yes-such a procedure was, of course,permissible in the case of a great Companion like Mu'adh b. Jabal, or it:!. the case of a recognized Imam. But we ordinary mortals are obliged to regard the ijtihad of the early generations as part and parcel of the §!1ari'ah. Otherwise we are bound to go astray: that is, to perdition."

Our friend is now-he must confess it to his shame-a little bit angered at so much threatening with perdition. Somehow, the other's argumentation does not seem convincing to him; it rather seems to evade the issue which the new convert has tried to stress from the very beginning-namely,

, that the Law as such, the immutable, to him con- 1 vincing. The same applies to the ijma' of learned

men, which is nothing but group-ijtihad.

In matters affecting our social actions and our communal legislation, on the other hand, "personal

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This Law of Ours

conscience" ceases to be a decisive factor of acceptance. For, it is quite possible to conceive cases where a group-decision-for instance, a legal decision arrived at by the community's chosen representatives becomes binding on every member of the community irrespective of whether he whole-heartedly approves of it or not; simply because the unity of communal decision and action is a paramount demand of Islam. But even then, such a lif!~" decision can be binding only in the sense of a tem- ~i :;

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poral (and therefore amendable) law, and not In ~~:

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any shar't sense. The shar'i factor enters into our ~lo. ,~i

acceptance of communal decisions only in so far as we are obliged, by command of God and His

, Apostle, to respect the will of the cornmunity- provided, of course, it does not go against the Law

!! or spirit of Islam.

II On no account must we obliterate the demarcation between shar'i (that is, nass) laws on the: one

hand, and ijtihadi conclusions-whether individual or communal-on the other. As to the shari'ah

itself, it cannot and need not be submitted to ijtihad, for it consists exclusively of ordinances which, ..! being absolutely unambiguous by virtue of their i wording, can be taken at their face value only, and

at no other value.

Codification of Islamic Law

For any Muslim community that is resolved to

" live according to the tenets of Islam and to translate ,

This Law of Ours

its social and economic programme into action, the first step to be adopted must be a condification of the shari'ah in an easily comprehensible form. The procedure should be, I believe, somewhat on these lines:

, (I) The Muslim community elects a small, : representative panel of 'ulama', fully conversant , with the Arabic language, the methodology and

;,- history of the Qur'an, and the science of hadith, and entrusts this panel with a codification of the nass ordinances of Qur'an and Sunnah. It should be understood from the very outset that the work must proceed on the ?ohiri lines explained above,

and must exclude all kind of "interpretation" handed down from previous times. Only such ordinances of Qur'an and Sunnah are to be consi- dered in this context as answer fully to the linguistic definition of nass : that is to say, statements, injunctions and statutes which are self-evident (?ohir) in their wording, having "a particular meaning, not admitting any other than it" : in short, where no difference of interpretation can possibly arise.

(2) While a selection of nass ordinances from the Holy Qur'an is comparatively easy-because , one text only is to be considered-the application of this principle to hadith will necessitate a thorough examination of the various riwoyot against their

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i This Law of Ours

:' historical background. In this respect, only Tradi- tions which come up to the highest standards laid down by the great Sunni mubaddithiin need to be considered. Traditions which leave the slightest opening for legitimate criticism regarding their authenticity should be a priori excluded. (This

j, does not mean, of course, that Traditions which are probably authentic should not be occasionally used for purposes of ijtihad,. what I wish to stress

\ ' here .i~ merely the. inadmissibility -of using su~h TradItIons as materIal for. the sh~r" code). SpecI~1 ,: care must be taken to dIfferentIate between ordI-

: nances designed by the Prophet to have universal I,: validity for all times and circumstances, and ordi- nances which were obviously meant to meet the

needs of a particular occasion or time. This latter I ~roup of ordina~ces usually reveals itself as su~h i m the very wordIng adopted by the Prophet, or m j the explanatory remarks of the Companion respon- :i sible for the badith in question; and occasionally II the time-bound quality of an ordinance contained :; in one Tradition becomes evident through other It Traditions. Wherever no indication to the contrary If is available, the ordinance under consideration

I must be regarded as having universal validity.

Ii

(3}\ It goes wIthout saying that, in order to establish the shar'i code, we must not merely pick : out disjointed verses of the Qur'an or individual

This Law of o~rs .I~~~I~

Traditions. In each and every case the entire context of the Two Sources must be fully taken into consideration. It often happens that a Qur"in-verse which, by itself, does not seem to have the quality of a nass ordinance, at once assumes this .quality if it is read in conjunction with another verse or with an authentic Tradition. Similarly, a nass ordinance ensuing from the Holy Prophet may occasionally reveal itself as such only if we place several Traditions side by side, or read the relevant Tradition in conjunction with a corresponding. Qur'-a:n-verse. It must never be forgotten that the Two Sources form one integral whole, elucidating and amplifying each other: and so the shar't code must contain cross-references ranging over the entire field of Qur"in and Sunnah.

(4) The nass ordinances of Qur'an and Sunnah established as such should be collected in book- form (in the original Arabic) and circulated among competent 'ulama' in this country and abroad for suggestions and ciriticism, especially with regard to the method by which badill1.-ordinances have been treated. Stress should be laid on the fact that it is not intended to reduce the Two Sources as such to the extent of the no;\'$ ordinances con- tained in them; it should be made clear that the above codification merely aims at establishing the true shar'i ordinances which-because of their

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This Law of Ours

-;iihir quality-are not liable to be variously inter- preted and can, therefore, supply a most clearly formulated basis of agreement between all schools of thought in SunnI Islam. The criticisms and suggestions received from the 'ulamii' shall be consi- dered on their merit and utilised in the final revi-

sion of the collection, whereupon the original, Arabic text of- the Code of the Shar'iah shall be published.

(5) The body of 'ulamii' mentioned in para. (I), in collaboration with other prominent Muslim scholars and institutions, shall appoint committees for the purpose of translating the Code of the Shar'iah into any language that may be deemed necessary. Each translation shall be closely scrutinised by the scholars assembled in committee with a view to eliminating any "interpretative"

translation-that is, an incorporation of the tran- slator's personal views in his work by means of an arbitrary choice of words or phrases. After having passed this test, each translation shall be published as the Authorised Version in the language con- cerned. (It must be remembered, however, that even the most faithful translation can never be entirely free from subjective, "interpretative" ele- ments. But as there will be always the Arabic original at our disposal, each translation could, in case of divergencies which later might crop up,

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be amended and corrected in accordance with the original. )

(6) The Arabic original of the Code of the Shari'ah, accompanied by its translations into the principal Muslim languages, should thereupon be submitted to the Muslim community as a whole, and a plebiscite arranged for having it accepted as the Constitutional Law of Islam.

And Our Future

That the need for a codification of the shar'iah

is very keenly felt in the modern world of Islam is .

evident, for instance, from reports current one or two years ago in the Egyptian and Syrian press that the 'ulama' of Palestine had decided to codify the teachings of the based on an untenable claim... How could God have demanded of us that we should resort to deductions by analogy-and have omitted to show us wherein to apply analogy, and how to apply it, and what should be its standards? Such a demand is inconceivable.. .for,

.I

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'God does not impose on any soul a duty beyond

its ability.'

" And if (in order to justify their claims to qiyas and ta' hi) the upholders of these methods quote Traditions or Qur'an-verses containing comparisons (i.e. analogies) between one thing and another, or

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This Law of Ours

~;, de.claring 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 men- tioned by way of comparison or cause is truth absolute, and none may go against it : but this, precisely, is the na~~ on which we rely! But all your attempts at imitating Him in matters of reli- gious legislation and at ascribing "causes" (to shar'l ordinances) beyond what God and His Apostle have made manifest by means of na~~ : 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 of law in which the qiyas of one group of

scholars, claimed by them to be right, is not diamet- ricaIly opposed to a qiyas evolved by another group. AIl of them agree that not each and every qiyiis could possibly be sound, and not each and every ra'y true: but whenever we calI upon them to produce an objective criterion which would enable us to discriminate between a sound qiyiis, ra'y or ta'lil on the one hand, and a bad qiyiis, ra'y or ta'li! 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. ...

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'And so we tell them: 'The nass (of Qur'an 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 t "The sharif ah in its entirety refers either to obli-

gatory acts (far (i), the omission of which constitutes ; a sin; or to prohibited acts (bariim), the commission t of which constitutes a sin; or to allowed acts ~ (mubob), the commi~sion 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 (makrah)-meaning that there is merit in abstai- ning from them, but no sin in doing them; thirdly, acts which have been left unspecified (mu!laq)- being neither meritorious nor sinful whether done or

.omitted. For, God has said,

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'He has created for you all that is on earth' ; and He

also said,

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'It has been distinctly shown to you what you are forbidden to do.' Thus it has been made manifest

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this Law of Ours

that everything is lawful (balal) except what has been clearly described as forbidden (baram) in the

Qur"In and in the Sunnah ". ...In one of his sermons the Apostle of God said g '0 people! God has made the hajj obligatory on you; therefore perform it.' Thereupon some- body asked, 'Every year, 0 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 incum- bent 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 (com- munities) before you who went to their doom be- cause they had put too many questiQns 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.' (..s'abib Muslim).

"The above badiJl1 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 (mubab), that is, neither prohibited nor obligatory. Whatever he ordered is obligatory (fartj), and whatever he forbade is prohibited (bariim) : and

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whatever he ordered us to do is binding on us to

the extent of our ability alone. .1"

Islamic Law and Muslim Law

The above lengthy quotation from Ibn l;:Iazm's work has not been given with a view to produce an

t "authority" for the conceptions expounded in this and the preceding issues of Arafat : for I do not

., believe that we need any authority beyond that of

the Two Sources for the purpose of establishing

the principles and the scope of the shari'ah. My intention was merely to show that views like mine. were actually held in the early centuries of Islam:

in other words, that they are not an "innovation"

in the religiously reprehensible sense of this word. True, they were always (that is, after the 3rd cen- tury A. H.) the views of a minority-a fact for which Ibn l;:Iazm himself had bitterly to pay in

.suffering and humiliation; but nobody who has

I deeply thought about the present situation of the :,Muslim world can escape the conviction that it is

in such views alone that our community can find its religious and cultural redemption.

If we are to survive as a religious community in more than just a name; if we are ever to be able

---

I Ibn Hazro, AI-Mu(lalla (Cairo, 1347 A.H.) vol. I, pp. 56 fr. That the views of Ibn l;1azm were those of many great scholars who preceded him is evident, for example, from Ibn Jarir at- Tabari's commentary on siirah 45 : 18, where he defines as sharl'ah all injunctions and prohibitions contained in Quran and Sunnah, including the laws of inheritance(!ara'id), as well as the restrictive ordinances regarding food, marriages. etc., and the punishments to be infllcted on tsansgressors «(ludUd).

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to make the Law of Islam a practical proposition for our social life; if we are really, and not just

Iin words and hollow resolutions, to benefit by the economic programme of Islam-which, in our

:i opinion, is alone able to resolve the present-day I: chaos into order, equity and happiness for the

greatest possible number of human beings-: if all this is to come true, we must make the shari'ah once again accessible to every Muslim. This does not

..

mean that every "man-m-the-street" should be enabled to make his own ijthiid, to twist the injunc-

" tions of Islamic Law in accordance with his own 'I". liking and his (potential) ignorance: it means, on i[ the contrary, that we should remove, once and for ;; all, every kind of ijtihad, every "deduction"-in

'I

ii! short, every element of subjective thought-from

, .,

i what we regard as the Law of God. It would be , ~.I quite erroneous to presume that such an elimi- \' n~ti~n of ijti~a~ from the sh~ri'ah implies an

, ehmmaton of l}tlhiid from our lIfe as such and r must, consequently, lead to social rigidity, cultural ~ sterility, and the abandonment of all progress. )i Nothing could be farther from truth. The gift of ijtihad-in other words, the gift of logical, creative thought-is God's greatest boon to mankind:

and the Muslims must avail themselves of this :.' boon to its fullest extent if they wish to remain Muslims. I shall very soon return to this problem

and show that this double demand-the elimina-

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tion of subjective thought from the realm of the shari'ah (which must forever remain the unchangeable basis of Muslim life) and, at the same time, the elevation of ijtihad to its utmost, creative freedom- is not a paradoxical demand at all : it is, on the contrary, a fundamental demeand of Islam. But before I can demonstrate its practicability I must be permitted to conclude my remarks regarding the scope of the shari'ah.

By reducing the shari'ah to its true scope, namely, to the nass ordinances of Qur'an and Sunnah, laid .

down in unmistakable, self-evident (~ahir) expre- ~ ssions, we claim that nothing can be regarded as a

shr'i law that has not been specified as law by God and His Apostle. We must not allow our minds to be confused by the fact that some of the greatest Muslim scholars in past centuries were of opinion that, in order to arrive at the full extent of the shari' ah, the nay$ of the Two Sources must be ampli- fied by rulings obtained through ijtihad. The reason for this opinion of theirs was the conviction that the shari' ah was meant to give precise directives not only for the cases clearly mentioned in the Two Sources but, by analogy, to all cases and all situations which might arise at any time. And

i herein lies the fundamental difference between the fiqhi outlook conventionalised throughout the Mus- lim world in the past millenium on the one hand,

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and the ?ohiri outlook advocated by men like Ibn I;Iazm, on the other. The tendency to evaluate all human actions and situations under the aspect of religion is a funda- mental characteristic of Islam. It was this tendency, thoroughly sound in itself, which caused those great, old scholars to search, beyond the na;\';\' injunctions of the Two Sources, after further laws

which could be derived through deduction. There is a passage in the Qur'an saying,

.c "'. '-' l;:.(J I 9 w., 9 L.

u , (jo4. u .)

"We did not neglect anything in the Book" (siirah 6 : 38). In accordance with the spirit of a time which was largely governed by esoteric conceptjons, many Muslim scholars read into this passage a hint that the Book-in conjunction, of course, with the Prophet's Sunnah-contains definite laws for

each and every situation; and that it is possible to elicit, by means of deducation and analogy, those "implied" laws in as final and unequivocal a form as the na;\';\' ordinances proper. Thjs, actually, they endeavoured to do; but they seem to have been unaware of the psychological factors whjch render every deducation (as every other mental process) unavoidably subjective and, therefore, valid only in

a relative sense.

Now, no believing Muslim doubts that the Two Sources really do provide, in addition to the shan'ah

24

This Law of Ours

proper, answers to all exigencies of life: but these answers are commensurate with each generation's intellectual development and the real needs of the time: and so they are not necessarily quite the same for people of different times and different intellectual environments. To presume the con- trary and to believe that our early scholars had found all those answers in a final sense would amount to fixing the level of Qur'an and Sunnah to the level of knowledge prevailing at the time o~ the "early generations"-that is, to a time-condi- tioned level: and this, I am sure, no thinking Muslim is prepared to do. Being a direct out- come of Divine inspiration, the Two Sources are far too great, far too majestic to be confined to a "final" interpretation by any human being that came after the Prophet.

To my mind, the Qur'anic passage quoted above does not allude to the existence of "hidden laws" (in the shar'i context), but rather to the Eternal Decrees which rule all Creation: and this view is supported by most of the classical commentators of the Qur'an. One could go even further and say, on the basis of this very ayah, that everything which God intended to be law, is clearly specified as such in the plain text of the Two Sources.

If we accept the ;iihiri viewpoint, which considers as shar'i laws only such passages and expressions in

25

This Law of Ours

Qur'an and Sunnah as have been clearly formulated as laws, in terms of command or prohibition, in the ;ahir-that is, self-evident-structure of their

[: language: if we accept this viewpoint we are ['j forced to the conclusion that the shari'ah cannot fJ have been intended to regulate all phases of our ,1 life in each and every detail, at all times, under

'""

L! all conditions. Had this been the case, the Law- Giver would h~ve condemned Muslim society to utter rigidity, and would have placed progress out of bounds. It is, however, obvious from the entire context of the Two Sources that progress and evolu- tion have been fully anticipated by the Law-Giver- and this side by side with the stipulation that the shari'ah, being a Divine Law, must remain valid, in spirit as well as in letter, for all times and for all the changing conditions created by scientific and technological progress. Therefore, the provisions of the shari'ah must be of such a kind as to permit their eternal application without depriving Musljm society of the element of evolution which is every human being's and every society's birth right. And this two-sided demand can be fulfilled only if we strip ourselves of the conventional notion that

the shari'ah could ever be anything more than - what the Law-Giver meant it to be : the Constitu-

tional Law of Islam.

In other words, the shari' ah meant to provide a framework-no more and no less-for Muslim life

26

This Law of Ours :

by enunciating (a) certain principles of belief, morals and behaviour, and (b) certain clearly for-

umlated commands and prohibitions, some of them detailed and others in general terms. And because they are an outcome of Divine Wisdom, all the laws laid down in the nass of the Two Sources-whether detailed or general-are suchwise constituted and formulated that they actually do correspond to the true nature of man and his true needs at all times, in all phases of cultural development, and under " all conditions :-which certainly cannot be said of laws derived through human ijtihad; .

Thus restored to its proper scope and extent, the shari'ah at once resumes that compactness and I conciseness in which it appreared to the Companions of the Prophet; and, being compact and t ~ unambiguous in caharacter and strictly limited '

in number, the laws of the shari'ah can easily be codified-which the laws derived through fiqh ~

definitely cannot-and thus made accessible to 'j

~ evry Muslim of average intelligence. If it is impo- ssible-unless one is a specialised scholar-to gain adequate insight into the enormous structure of conventional fiqh-it is certainly within the ability of a normally intelligent person to find his or her way, without any special schooling, though an unambiguous and comparatively small code of laws.

Undoubtedly, Islam does not content itself with the "framework" provided by the shari'ah propers,

27

This Law of Ours

but insists on the application of Islamic principles. to every one of our actions and situations: and this application, by means of ijtihad, is the "plus" which man's spirit and will are expected to add to the minimum laid down in the shan'ah. Thus, the obligation of "Islamising" all phases of our life remains unaffected by our restricting the shari'ah to its original scope and extent. Ijtihad is not only possible but necessary: but all conclusions obtai- ned by this m~thod can be only additional to, and can never become part of, the shari'ah proper. Such conclusions can be morally binding only upon their author, or upon such other people as freely choose to make that particular 'a[im's con- clusions their own.

In questions of belief, the ijtihadi "plus" to the shar'l Law must be regarded as a matter of personal conscience. In other words, while a Muslim must -if he wishes to be a Muslim in more than just in name-accept as binding the nass of Qur'an and Sunnah, he may-if he is able to do it-supple- ment this fundamental minimum by conclusions and deductions of his own, or follow another man's deductions in so far as they appear eternal shari'ah

Idoes not require any interpretation or ijtihad at all,

being obvious and clear-cut in every single instance; and that, consequently, ijtihad can refer only to something which is outside the shari'ah itself: that is to say, to the evolution of a temporal,

28

This Law of Ours  Muslim Law side by side with, and subordinated I...lto, the Islamic Law known as shari'ah : a temporal

law which must in every instance be submitted for the community's acceptance or rejection (and is therefore, amendable), and must on no account be confused with the sharl'ah. For, the latter, being God-given, can never be changed: and what else but a changing of the Law is a person's endeavor to extend its range by means of an arbitrary dis- . covery of supposedly "implied" laws, or by , "deducing" further laws by means of ijtihad? As long as we are conscious of the fact that our ijtihad can produce only a temporal, changeable legislation in addition to the constitutional, unchangeable Law ! of Islam (the sharl'ah), our ende~vour is not only legitimate but strongly recommended by God and

His Apostle. But the moment we begin to believe that the results of our ijtihad could become shar'I laws together with the nass of Qur'an and Sunnah we offend against that fundamental statement in the Holy Book.

",S::::'d ~ ",s:::l ..::..1 S-f i -'.) 1

"Today I have perfected for you your religious law"

(surah 5 : 3)-for this statement shows that whatever was meant to be shar'i law has been made per fectly obvious as such in the Qur'an and the life-

example of the Holy Prophet.

29

This Law of Ours

Now the point which I have endeavoured to make clear in the above, imaginary conversation is this: the nass ordinances of Qur'an and Sunnah, in their aggregate, give us the entire context of the shari'ah,

'I The Qur'an says.,

.= .

~I 1y.41 AI.J.".--, ~I ("S..;:.i I~I .~.. '1-, u-4 .".~J ~5-' L. J

r"~ y.4 r u-4 0" .J:~J I ("'-&1 ~ .".~

"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 "(siirah 33:36), In other words, whatever is laid down as law in either of the Two Sources is absolutely

Ibinding on a Muslim, and is not open to individual discretion, This "not being open to individual

discretion" is an essential characteristic of the very concept of the shari'ah.. therefore, whatever is open to discretion cannot be regarded as a shay'; law, From the preceding discussion of our pro- blem we have seen that every "opinion" arrived at through deduction or inference resolves itself ulti- mately into the question of individual discretion: therefore, no legal opinion resulting from ijtihad- however great and learned its author-can ever have shar'; value, Nowhere in the Qur'an or in the authentic Traditions do we find the slightest indi- cation that anything which is not plainly (that is,

30

This Law of Ours

in terms of a positive. statement, command or prohibition) ordained in either of the Two Sources could nevertheless be transformed into shar'i legisla-

tion by means of deductive reasoning.

A Voice of Nine Hundred Years Ago

The reader should not suppose that the views propounded in this and the foregoing issues of Arafat are an unheard-of innovation in Muslim legal thought. As a matter of fact, they have been held by the Prophet's Companions and their immediate successors; and, after them, by some of the' greatest scholars of Islam-and particularly by the .. man who is justly regarded as one of the three or four most brilliant minds which the Muslim world has eve'r produced: Abu Muhammad' Ali b. I:Iazm of Cordova (384-456 A.H.). To the world at large he is known as the founder of the science of Com- parative Religion, which he expounded in his funda- mental work called Kitab al-Fa~1 fi'I-Milal wa'l- Ahwa wa'n-Nibal ("On the Discrimination Between Religious Groups, Trends and Beliefs") : a work that ushered in a new era in the study of religious thought. But here we are concerned with another aspect of his creative intellect, namely, with his numerous writings on fiqh and sharc'ah in which he

attacked the conventional ideas prevailing at the time and endeavoured to free the concept of the Divine Law from he subjective elements that had ~31

intruded into it, so that it might be restored to the " purity and compactness which it had possessed at the time of the Companions. Nothing could be more illustrative with regard to the problem we are discussing than the following passages from the Introduction to his great work, AI-Muballa :

"It is not permissible, in matters of reiligious law (dm), to resort to deductions by analogy (qiyas) or to personal opinions (ra'y)-for there is no doubt that God has commanded us to refer all problems to His Book and His Apostle whenever a disagree- ment arises (allusion to surah 4 : 59) ; and whoso refers such a problem to qiyas or ta'lil' or ra'y,

violates God's or~er. ...God h.as s~id, ~

s:.\..S":': .j.o yl:..(J \ r..I l:.1..), L. ~1

'We did not omit anything in the Book' ; and He

said, ~ :I

s:. \..S'::' Js::I U ~ ;;

'(so that it might be) a clear evidence for every- '

thing'; and He said,. ..

: J ("1"'::J I J jJ l.. (.)'" l:.lJ tJ::~J'

'so that thou (0 Muhammad) mayst make clear

.

~ to mankind what has been revealed for them' ; and He said,

, ~~ r"~J ~lSr t.J::31

32

This Law of Ours

'Today I have perfected for you your religious law;' and all this implies an utter rejection of qiyas and raCy. For, even the upholders of qiyas and ra'y do not deny that it is not permissible to resort to these two methods in cases where there exists a nass injunction. On the other hand, God Himself has testified that nothing has been omitted in the

na;$$ ; further, that the Apostle of God has clearly. ,

shown to men what has been made binding on them; and, finaly, that the religious law has indeed been completed (in the Prophet's time): and thus it is established that the nass ordinances comprise the religious law in its entirety. If this is so, there is no need for anybody to resort to deductions by analogy or to personal opinions, be they his own or somebody else's.

"And now let us ask those who favour qiyas (in shar'i matters) : 'Do you maintain that each and every deduction arrived at by means of qiyas is correct-or are there correct as well as wrong deduc- tions l' It is obviously impossible to answer, 'Each and every qiyas is correct'- for we know that those who resort to qiyiis frequently contradict and refute each other: and it is impossible that in a question of bariim and i:za[ii[ a Yes and a No could be equally valid. ..But if the answer is, 'No, some of the qiyas deductions are correct and some of them wrong,' I should like them to let us know by what criterion a sound qiyas could be discerned from an

33

This Law of Ours

unsound one: but they have nothing to show by way of such a criterion. Now, if there is no crite- rion whereby it could be once and for all established what sort of qiyas should be regarded as sound and what as unsound, the whole of this method stands self-condemned as being existing four SunnI ma- If/jahib and to revise them "in the light of modern thought and modern conditions of life". It appears to me, however, that the field of reference chosen for this move will not only defeat its purpose but might even lead to most disastrous developments as regards the Muslims' attitude towards the pro- blem of the shari' ah.

Firstly, a co-ordination of the four schools of fiqh-however desirable on the surface-cannot possibly result in a code that would be more acce- ssible to the "layman" than the present concept of the shari'ah is : for it would be only a co-ordination of the innumerable, labyrinthine ways into which conventional fiqh has brought us : a co-ordination involving a good deal of new hair-splitting, and therefore, bound to result in further complications.

Secondly, such a co-ordination would only perpetutate the confusion existing in the Muslim mind between what has been ordained by God and His Apostle (in other words, what the Law-Giver has stipulated as law in the na~~ of the Two Sources) on the one hand, and what generations of Muslim

34

This Law of Ours

scholars have thought about the problems of Islam, on the other hand. Thus, the Law of Islam would again be chained to the ways of thought prevailing at a particular period of our history- that is, to human, time-conditioned thought.

Thirdly, the aim to revise the shari'ah "in the light of modern conditions" is bound to destroy the last vestige of permanency and stability which a Muslim associates-and quite rightly-with the

concept of Divine Law. For, if revision is necessary .

now, it will certainly becvme again necessary a few ..

years or decades hence, when "modern conditions" will again have changed: and so on and on, until the Law of Islam will be entirely revised away. If this were justified, what right had we to claim that the Law-Giver has conceived the Law of Islam as an eternal proposition? Would it not be, rather, much more appropriate to say that this Law, instead of creating conditions, is' subservient to them- and that, therefore, it cannot have been a Divine Law? And this is precisely what we are not pre-

pared to do.

It appears to me that the steps proposed by the 'ulama' of Palestine cannot but defeat their own

purpose-namely, to make the shari'ah a living'

issue for our present and our future. They will further increase the Muslims' doubts (already consi- derable among the intelligentsia) as to the Divine

"

35 l,

origin of Islamic Law and, thus, as to its eternal validity; they will further obscure the ideology of Islam and thus make it more and more impossible to think of a future on truly Islamic lines; they will make Muslim confusion worse confounded by "officially' opening all doors to an arbitrary, un. ceasing re-interpretation of the aims of Islam iD the light of whatever conditions may happen tc prevail in the world tomorrow or the day after. IJ the Muslims ever agree to these proposals they wi] only play into the hands of those who contend tha' Islam and its laws were but the man-made produc of a particular time and environment. There i no going-away from this conclusion. Nevertheless

it is not difficult to understand why such proposal are being entertained. The 'ulamii' of many Mus lim countries' are well aware that their one-tim influence is slipping from their hands. They se that more and more Muslims are being attracte by Western ideas and social forms and pay less an less heed to the demands of Islam-or whateve has been regarded as the demands of Islam inor decadent past: and those 'ulamii', instead of real sing that it was their own deficiency, their ow lack of perception which has created this deplorab situation, try now to "catch up with the times" aD to prove that they too are enlightened and progr ssive : that is, that they too are not impervious 1

36. -~

f This Law or Ours:: ~

r the defeatism which now threatens to encompass~1~"'1~'i~'~:~~~~iiiil "

the religious world of Islam... ~!!

Our confusion cannot be resolved by a defeatist 8.-l .attitude: in other words, by our giving in on the ' .,

point of the eternal validity and the unchangeable quality of the Divine Law. On the other hand, we cannot maintain this validity and this quality unless we separate, boldly and with an utter disregard of our conventional "attachments", God's true sha- n'ah from all man-made, deductive laws. It is this

way alone that will enable us to define, once and for

.

all, the shafI'ah as the eternal Islamic Law, and to

..

refer all ijtihildi legisl~tion-necessary at all times and under all conditions-to its rightful domain: namely, to a changeable, flexible, Muslim Law.

The reduction of Islamic Law to its origiDal scope and extent-the plain, unequivocal ordinances of Qur'an and Sunnah-is the only way for the Muslims to regain possession of Islam's ideology, to overcome their cultural stagnation and decay, to shed that pernicious automatism hitherto pre- valent in religious thought, and to make the Law a living proposition. If its ordinances are codified within the limits suggested above, the shari'ah will emerge as a comparatively small code of laws; and because of the clearness and conciseness of their language those laws will not require for their understanding any extraneous guidance: so that

37

, This Law of Ours

every Muslim, scholar or "common man", will be in a position to consult the Code of the Shari'ah and to decide for himself, on the basis of this supreme source, what the Law of Islam says about this or that problem. Freed from the many layers of fallible human thought which hitherto have obscured its luminous quality, the shari'ah will assume its rightful position as the unchangeable, eternal constitution of Islam-he bedrock on which to build our existence. And in spite of the unchan- geable character of its regulations, the shari'iih will not be conductive to rigidity in our social and intellectual life: for it is truly only a framework of belief and behaviour, leaving the greatest possible space to the unfolding of man's genius.

The shari'ah is eternal and unchangeable because it is the Divine Law expressed in the na~~ of Qur'an and Sunnah: but our interpretation of, and our legal deductions from, the non-shar'i material of the Two Sources are time-bound and, therefore, chan- geable : in other words, God and His Apostle anticipated through them the variable elements of time and knowledge. Thus, the call for ijtihad will always remain in force; but it must be differently

, handled than before. From now on our out-look , must be : the shari'ah (which is Divine, self-evident,

and, therefore, unchangeable) plus a Muslim Law (based on human ijtihad, and, therefore, changeable):

38

i This Law of Ours

and this, in fact, was the outlook of the Prophet's Companions. If we wish to survive, we must retun to this outlook.

So long as there was no apparent division bet- , ween the laws laid down in unequivocal terms by

t ; God and His A postle and the laws derived from the

Two Sources by means of fiqh- so long, that is, .

as the nass ordinances and the ijtihadi conclusions ..

as to what should be law were (unjustifiably) lumped together in the conventional concept of the shari'ah -many learned men were suspicious of popular ijtihad : naturally so, because it would have enabled any "common man" to twist the regulations of the Law, through erroneous or inadequate reasoning, into whatever shape he liked: and such a "freedom"

would inevitably have spelt ultimat~ destruction of the Law. In future, however, this danger could be removed: for if we codify the shari'ah on the lines suggested above, it will for ever remain splendid in its clearness, self-contained and self-evident- everyone of its statutes conveying a precise mea- ning which admits of no "interpretation": and every Muslim will know that, being a Muslim, he is bound to accept the unchangeable quality of the shar'i laws. Consequently, ijtihad will have to apply only to matters which are not fixed by regula- tions of the Divine Law-that is to say, to Muslim Law: but we must remember that the field thus

39

This Law of Ours

left to the exercise of our reasoning is immensely big, for the sharC'ah was never intended to cover every possible constellation of life, being only a framework within which we are expected to unfold our creative powers, and in the light of which we have to regulate .our daily affair~. Thus, ijtihad will become fully legitimate for a great number of intelligent people as soon as they have acquiainted themselves with the small, concise-and therefore easily understandable-Code of the Shari'ah and have submitted to its guidance. If, in addition to your acquaintance with the Code of the Shari'ah, you are able to exercise your ijtihad by means of qiyas, istidlal, istil)san, talil, isti.ylab, and so forth, and are thus able to reach further conclusions -which must, of course, agree with the spirit of the Two Sources-you will be rightly described as a mujtahid. But even if you are not a mujtahid (and are, therefore, obliged, in the mattes of further conclusions, to. follow another man's teachings) you will be always in a position to say, "I know the Law of Islam as such" : which will mean that you know the ideology of Islam.

If the knowledge of the Law becomes accessible to every Muslim man and woman,. Muslim religious

thought will be freed from blind taqlid and will )

once more become the source of the community's moral and inteJlectual progress. No doubt, there

40

f This Law of Ours

;

will always be differences between the various results of Individual ijtihad. But what of it? No intellec- tual development, no progress in the true sense of the word is possible without such differences.

Once the shari'ah, the Eternal Law of Islam, IS estab-

t, l~shed as the unc~angeable const~t~tion. of MuslIm. .,

f lIfe, to all our dIfferences of opInion In non-sharI matters-and to all the changes in the temporal, Muslim Law-wjll apply that immortal sayjng attributed on very good grounds to the Holy Pro- phet : "The differences of opinion withjn my com- munity (or, accordjng to another version: among the learned men of my community) are a sign of a God's grace."

Is There Another W oy ?

As things stand at present, nobody in his senses can clahn to discern an evidence of "God's grace' in the dissensions and differences of opinion which have converted the modern world of Islam into a formless, chaotic, unproductive mass of humanity. Lacking fundamental agreement as to what the shari'ah really implies and what its aims are with regard to Muslim development, these dissensions and differences of opinion do not increase our creative powers: they rather increase our despon- dency, our defeatism, our doubts, our disgust with ourselves. And things are bound to go on in this way-which leads to a gradual abandonment of

" 41

Islam as a practical proposition and so to the ultimate dissolution of our culture-unless and until we rouse ourselves to the long-neglected task of codifying the shari'ah and making it a clearly under- standable basis for our life and our endeavours. So long as thIs IS left undone, the Muslims are bound to hold widely divergent-and therefore futile-views as to the paths on which we should progress: until, in the end, all our ideas of progress will be entirely diyorced from Islamt and Islam itself will receive the humiliating stamp of futility and wil] really be reduced to the status of "spiritual music'~ jingling away somewhere in the background of ow habits. .:

~

I

I cannot see any other way to our recovery' If there is some such other way, I challenge thosc who claim to have found it to show it to us. Simpl~ talking about the need for a "rebirth of faith" i: not much more worth than bragging about ou past and extolling the greatness of our predecessors Our faith cannot be reborn unless we understand t4 what practical goats it will lead us. Generalitie won't help us either. It won't do us the least goo! if, for instance, we are glibly assured that the socic economic programme of Islam is better than Soci~ lism, Communism, Fascism, Liberalism, and Go knows what other "isms" which the West has pr( duced for its own good-or its undoing. We ougl

42 ~

This Law of Ours

rather to be shown, in unmistakabie terms, what alternative proposals the shari'ah makes for our socIal life-what its true concept of socjety 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 in 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 souls are so intertwined that we cannot achieve the ultimate well-being of one without taking the other fully into consideration. Specious sermonising about "faith" and "spirit" and "surrender to God" cannot lead Ito the establishment of true Islam on earth unless we are shown how to gain fajth through a better insight into God's plan, how to elevate our spirit by living a righteous life, and how to surren- der 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 shari'ah alone.

43

This Law of Ours

And the shart'ah can never become eflective unless it becomes an open book for every one of us.

It goes without saying that a re-definition of the shari'ah ,its reduction to the nass of the Two Sources, will be a painful process for many of us. It will imply a radical break with the thought-habits of centuries; the giving-up of our complacent conviction that the ways and by-ways of Muslim life have been authoritatively-that is, finally-laid down in this or that book of fiqh : and all this will mean a setting-forth towards horizons as yet unchartered.

!! And because such a prospect is painful and frightening to the more conservative among us, any

endeavour directed to this end will undoubtedly provoke a most lively opposition: especially from people who have made a sort of "vested interest" out of their unquestioning reliance on old authorities) and a sort of virtue out of their intellectual timidity. Rut this opposition should not deter us so long as We are conscious of desiring the triumph of Islam, and nothing but Islam.

And here, for the time being ends out inquiry into the principles of This Law of Ours.

Be a Fan