Analytical reasoning and comparison are well known to human nature. They are not safe from error. Together with forgetfulness and negligence, they sway man from his purpose and divert him from his goal. Often, someone who has learned a good deal of past history remains unaware of the changes that conditions have undergone. Without a moment’s hesitation, he applies his knowledge (of the present) to historical information, and measures such information by the things he has observed whit his own eyes, although the difference between the two is great. Consequently, he falls into an abyss of error.– Ibn Khaldun, Al Muqadimah
In our proposed Islamic state, the legal system should of course be run according to the Shariah. For how else can we run it when:
It was We who revealed the law (to Moses): therein was guidance and light. By its standard have been judged the Jews, by the prophets who bowed (as in Islam) to Allah.s will, by the rabbis and the doctors of law: for to them was entrusted the protection of Allah’s book, and they were witnesses thereto: therefore fear not men, but fear me, and sell not my signs for a miserable price. If any do fail to judge by (the light of) what Allah hath revealed, they are (no better than) Unbelievers. (5:44)
The similitude of those who were charged with the (obligations of the) Mosaic Law, but who subsequently failed in those (obligations), is that of a donkey which carries huge tomes (but understands them not). Evil is the similitude of people who falsify the Signs of Allah. And Allah guides not people who do wrong. (62:5)
In the system of government proposed by this author, the legal system should be an independent arm of the constitution. It must be tied to the educational system of the country and have a meritocratic basis on the level of Islamic education one has. Thus, the governing body of the legal system should be elected with a bias towards those who have religious knowledge. For instance, in our proposed political setup, a citizen who has taken Islam as a subject and passed exams at the high school graduation 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. This voting for the legal religious governing body – that is independent of the other arms of the government – would take place parallel to the primary voting mechanism of our Medina. This voting could be less frequent, for instance every other election to give it more stability and continuity.
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 for implementing the laws passed by the legislature. The legislature should not have authority in those laws that are explicitly given to us by Allah and as described through the Nass ordinances, thus giving Islam meaningful and real primacy in the constitution. 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 should be directly subservient to the Judiciary. As such, the Judiciary may be able to fire and replace any officer of the law. Officers could 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 abound 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 thus stand as a strong, viable and independent pillar of our Islamic state. So, how do we get there?
Reforming Our Legal System
Muslims have failed time and time again today to implement and Islamic legal system based on the Shariah. Many experiments have miscarried and some people have gone about saying that the Law of Islam is not a practical proposition for implementation today. Eh? Really? Well, there obviously is a problem somewhere but I think that is taking it too far and making a ridiculous claim that – and Allah knows best – could get such commentators into the deepest pits of Hell.
Muhammad Asad in his book This Law of Ours describes in one of the central problems with the interpretation of our deen. He finds the problem routed in the interpretive outlook over accepting the laws given in the Quran and Sunnah as they are given and directly apparent. We shall call the two outlooks as Apparent Outlook and Interpretive Outlook. He calls for a reformulation of the shariah based on the nass ordnances 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 including through the political authority of the leader(s) and what is to be left to personal ijtihad. 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.
I am 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. At least, that is how the rest of this chapter started out, we have ended up making incremental improvements, that have accumulated over time. I would still recommend his authorship over mine, for the lucidity and command of Asad’s English is superior.
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 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 erudition is needed to understand the Law of Islam as erudition (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 outlook that accepts the law as what is obvious and clearly stated which is opposed to the interpretive fiqi outlook dominant today. This general outlook, in various shades 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 Apparent Outlook Does Not Mean
This outlook does not mean that every “man-in-the-street” should be able to twist Islamic Law through his own ijtihad but rather to remove every kind of ijtihad, analogical deduction, expert erudition, from the Law of Allah.
The elimination of ijtihad from shariah does not imply the elimination of ijtihad from our daily life. Allah’s gift of free will, reason and creativity must be fully utilized within the framework of the Shariah.
Apparent versus Interpretive Debate
Interpretive Outlook Argument 1:
¤ The Law defined by the Apparent 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 ijtihad.
¤ The rest of the Muslims are obliged to follow these deductions.
Apparent Outlook 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.
Interpretive Outlook 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 erudition (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).
Apparent Outlook 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 ijtihad is a matter of individual knowledge and conscience and cannot have legal force in any Shariah sense.
Interpretive Outlook 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.
Apparent Outlook 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)
Say: "What! Will ye instruct Allah about your religion? But Allah knows all that is in the heavens and on earth: He has full knowledge of all things. (49:16)
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, Al-Muhalla (Cairo, 1347 A.H.) vol. I, pp. 56 ff.
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, who never attempted to do what these “great Imams” did. These Apparent Outlook viewpoints have been a minority view since the 3rd century Hijri, when the Interpretive Outlook gained its ground.
While these views are suppressed by the “traditional ulema” who went to the extent of having Ibn Hazm imprisoned and his books destroyed (and who knows how many unknown others we will never hear about because of their censorship), this author has himself found their approach questionable long before he read Muhammad Asad. Muhammad Asad in turn found this problem independently and only later discovered Ibn Hazm and others. This author has also found the same suspicion of wrong among numerous common people, in fact, it is commonplace among Muslims to disregard what their respective ulema say. Recently, the author was surprised to find Sheikh Imran Hosein sharing similar views. Sheikh Hosein quoted:
They have taken as lords beside Allah their rabbis and their monks and the Messiah son of Mary, when they were bidden to worship only One Allah. There is no Allah save Him. Be He Glorified from all that they ascribe as partner (unto Him)! (9:31, Al-Quran)
And explained how the Prophet had explained this verse as to why and how rabbis and priests are stated to be being worshiped and explained how people who follow the ulema are falling into the same trap as the ulema are doing the same. He also quoted that 999 out of 1000 people will populate Hell and connected that hadith to this issue. The author, much shocked at finding someone with the same views as his, reiterated this point in the question and answer session, asking if we are not doing exactly the same today and Sheikh Hosein confirmed and praised the author.
Malek Bennabi also reflects this viewpoint when he writes about the early Islamic society in contrast to the juristic outlook:
“… subscription to the Islamic ideal not merely as theoretical doctrines and ruling taught by the jurists, but as a dynamic and radiating truth which shapes the individual’s actions and movements and inspires his motives and feelings.” (Bennabi, On the Origins of Human Society)
Bennabi then goes on to quote Abdullah Ibn Masud:
“We lived a long time during which we would be given eman before (the knowledge of) the Quran. (As soon as) a surah (of the Quran) is revealed to Muhammad, peace be upon him, each one of us would learn its halal and haram as well as its commands and prohibitions and the limits at which one should stop.” (Abdullah Ibn Masud, as quoted in Tabari, Jami al bayan Fi Ta’wil Ayi’l Quran vol. I, p.64)
How the Interpretive 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 ijtihad-based laws within the Interpretive 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. The various fiqhs and wide spectrum of interpretation is the primary cause of division among Muslims, who are now divided into sects and groups, each proposing their own interpretations and exactly in contravention to the Quran:
That He may make the suggestions thrown in by Satan, but a trial for those in whose hearts is a disease and who are hardened of heart: verily the wrongdoers are in a schism far (from the Truth): (22:53)
The same religion has He established for you as that which He enjoined on Noah--that 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 thou callest them. Allah chooses to Himself those whom He pleases, and guides to Himself those who turn (to Him). (42: 13)
As for those who divide their religion and break up into sects, thou hast no part in them in the least: their affair is with Allah. He will in the end tell them the truth of all that they did. (6:159)
And hold fast, all together, by the rope which Allah (stretches out for you), and be not divided among yourselves; and remember with gratitude Allah’s favour on you; for ye were enemies and He joined your hearts in love, so that by His Grace, ye became brethren; and ye were on the brink of the pit of Fire, and He saved you from it. Thus doth Allah make His Signs clear to you: That ye may be guided. (3:103)
Be not like those who are divided amongst themselves and fall into disputations after receiving Clear Signs: For them is a dreadful penalty. (3:105)
How a reasonable Muslim can ignore the above dire warnings from the Quran is beyond the grasp of this author. The Prophet (peace be upon him) explained the following verse:
They have taken as lords beside Allah their rabbis and their monks and the Messiah son of Mary, when they were bidden to worship only One Allah. There is no Allah save Him. Be He Glorified from all that they ascribe as partner (unto Him)! (9:31)
By noting that: “They didn't worship them but (the worship was in the sense) whatever they made halal for them, they considered it halal, whatever they made haram for them, they considered it haraam.”
(Tirmidhi Book of Tafseer-Surah Taubah, declared Hasan by Imam Tirmidhi, Tauheed ul Muslimeen pg. 272)
And what are all these faqih’s and “great scholars” doing? Are they not also qualifying what should be halal and haram? Are they not disagreeing about different interpretations and creating different groups thereby?
What else have the Jews and Christians done? Have they not incrementally over time added to the laws, and have they thereby not made following the deen tantamount to automating their lives?
Orthodox Judaism attempts to govern almost every tiny or large aspect of a Jew’s life, there being 613 laws they have to meet on a daily basis, of which candid Jews will tell you, are nearly impossible to follow. They cannot live but with virtually every action of theirs being governed by some law or another.
Abu Sa'id al-Khudri reported Allah's Messenger (may peace be upon him) as saying: You would tread the same path as was trodden by those before you inch by inch and step by step so much so that if they had entered into the hole of the reptile, you would follow them in this also. We said: Allah's Messenger, do you mean Jews and Christians (by your words)" those before you"? He said: Who else (than those two religious groups)? (Sahih Muslim, Kitab Al-Ilm)
And speak not, concerning that which your own tongues qualify (as clean or unclean), the falsehood: "This is lawful, and this is forbidden," so that ye invent a lie against Allah. Lo! Those who invent a lie against Allah will not succeed. A brief enjoyment (will be theirs); and theirs a painful doom. (16:116-117)
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 what is clearly apparent from the Quran and Sunnah. He writes that our present dead-end in the fiqi outlook can only increase our disgust with ourselves, create 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.
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 “ulema” 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 clear and apparent 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 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 ijtihad 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.
Muhammad Asad’s Position in Comparison to Other Positions
Sometimes the author has found that there is confusion as to what exactly Muhammad Asad is saying and how it is different from what others are saying. Below is a diagram that illustrates the difference.
The next few paragraphs explain this diagram. Tariq Ramadan does not reject the validity of the madhabs in the past but only finds that they are increasingly obsolete to the modern world. He notes that even the ulema are aware of this and try to give new rulings to stay abreast of the times but that this is not effective. He believes a new ijtihad building a new madhab using maqasid al-Shariah (by understanding the purpose of the various laws) is needed with special consideration of today’s times. He believes that the principles of the Quran and Sunnah are eternal but their application must vary with changing circumstances and he wants the legal system to take this into cognizance.
The Salafis reject the madhabs and want to go back to the pure and pristine form of Islam of the “Salaf” or early Muslims that they are aware of and others don’t know. However, some of them also claim to be Hanbali. Further confusing, Salafis are typically seen quoting scholars such as Imam Ibn Taymiyya, Shaykh Bin Baz, Shaykh Ibn Uthaymeen, and Shaykh Al Albani. None of these scholars are from the “Salaf” but their views are taken at the exclusion of other scholars. This then may be construed as a form of taqlid – accepting the position of these scholars as the correct position just the way the madhabs do their own scholars. Thus there are two faces to this rejection of taqlid and the ijtihad of the madhabs.
Now, all of the positions except Tariq Ramadam noted in the above diagram want to return to the mystical perfection of the original. Muhammad Asad’s position is focused exclusively on the legal Shariah of the state while the Salafis are taking the far harder road of a comprehensive theology. Ibn Hazm states the view of Muhammad Asad but then also passes his own independent literalist judgments to a small extent. This can be looked as an inadvertent addition in the heat of his arguments against the theologians of his era.
Ibn Khaldun notes the difference between Ibn Hazm and the original Zahirite school:
“He [Ibn Hazm] turned to the Zahirite school and became skilled in it. He gave his own independent interpretation of their stated opinions. He opposed their leader Dawud and attacked most of the Muslim religious leaders.”
This requires a bit more explanation and I shall here rely on Ibn Khaldun for this additional explanation. Ibn Khaldun holds three schools of Islam as valid – the Hanafi, the Maliki-Shaf’i-Hanbali and the Zahiri. However, he notes that the Zahiri school has died out and Ibn Hazm attempted to revive it from reading the works of the Zahiris but not properly understanding them (as noted in the quote above, Dawud ibn Khalaf Al-Zahiri being considered an authority in the Zahiri school, although earlier scholars are also quoted). He (Ibn Khaldun) considers Ibn Hazm’s interpretations misguided, a clue to which is perhaps:
“He gave his own independent interpretation of their stated opinions... opposed their leader Dawud…”
So what is the Zahiri School? We don’t know for sure because their school did not survive but what others say is that this school basically wants to restrict any erudition of scholars and thus expansion of the law of Islam, and stick to the original law given.
In sum, we want to codify that which is given clearly in the Quran and Sunnah as the law of Islam and be accepted for the legal functioning of the state. This I believe is the practical and pragmatic step for us. If you want to follow a madhab beyond this, please go ahead, if you want to interpret things literally in your life, so be your prerogative (as long as you don’t blow up on our face or start murdering the rest of us), but let us all sit and agree that what is clearly given in the Quran and widely accepted Sunnah will be the law of the land, as is clearly stated and given. Anything beyond, the state will not sponsor or promulgate, allowing unity of the people. Anything that does not have a legal application relevant to the legal institution of the state will not be given any legal rulings about. Instead, that form of ijtihad will be made the prerogative of the political authority or the individual.
Thus ijtihad is clearly delineated into three types – legal ijtihad, severely restricted, but social-political and personal ijtihad duly expanded. Thus, if there is a social element to an issue, then the right decision making body is the political system. If it is a matter of individual impact, then the individual is free to utilize his judgment as he wishes. The individual is left free to pursue his individual ijtihad and the political authority is given a free hand to interpret the Quran and Sunnah on social and political issues keeping in mind the present circumstances of the world.
Let us take a case study here. There is a hadith that we should not urinate directly into the river. The Zahiri school (supposedly, we don’t know definitively) want a literalist approach where someone can download into a cup and throw it in the river and that this is fine. Some others would make a fatwa that pissing into a cup and then throwing into the river is not acceptable according to their ijtihad and will ridicule the Zahiri madhab.
In our case, this is not an issue for a legal ruling. The Prophet (peace be upon him) did not give out any punishments for someone pissing into the river. It is a matter of personal advice and social impact. Personally, an individual may choose to interpret it as they like. However, the social and political authority must also decide to to interpret the text in light of the present circumstances. It may be for instance that the society decides that the Prophet (peace be upon him) was truly brilliant (as he was), and that today our drainage opens straight into the rivers which have created enormous ecological and health problems for the people downstream, and this is a worldwide unsustainable phenomenon.
The political authority, after carefully considering the impact and taking into consideration the amazing wisdom of our Prophet (peace be upon him), may then choose to stop using our rivers as a human and industrial waste disposal system. It may set up laws and regulations including that you cannot urinate indirectly into the river, or let your drainage directly out into the river without treatment, but never claim that these are eternal laws with pseudo-claims that they are somehow sent to us from Allah through the wisdom of some great scholar’s erudition.
With that we end the exposition of what makes reasonable sense to any Muslim who is not worshipping x, y and z but Allah alone. Who is not blindly following x, y and z because they know that x, y and z will have no authority in the Day of Judgment. Finally, any Muslim who has the sense to understand that turning the framework of our deen into an ever more detailed and restrictive legalized mockery of the original deen of Islam is exactly following the Jews, whose Rabbis did exactly that, and Orthodox Judaism remains stuck in this same issue to this day – almost every aspect of their life is now governed by the pseudo-wisdom of their Rabbis, who are in that sense the ones they worship, as is given in the Quranic verse earlier quoted.
An Additional Problem
There is however a small bit missing in Muhammad Asad’s otherwise excellent plan. He writes:
“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 historical background. In this respect, only Traditions 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.”
What does this mean? Does it mean we take Sahih Muslim and Sahih Bukhari (and perhaps some other Sahihs, or not)? Further, the Salafis have started, under Al-Albani, their own classifications to some extent of what is Sahih and what is not. Closer inspection indicates that there are disagreements over what are Sahih and what are not and that this itself is a dividing line for the Muslim community. There are also now people who reject the traditional Sahih hadiths and these people point to contradictions in the Sahihs. How do we make sense of these issues that touch upon some critical areas of our faith? Have we reached a dead end?
One simple possible solution is to take Sahih Muslim and Sahih Bukhari. Our Islamic state can set up a commission of Muslim scientists, hadith scholars and other relevant intellectuals to investigate any hadith that may appear contradictory or scientifically faulty, with criteria similar to Maurice Bucaille’s where he used a falsification test of the Quran. Another approach may be to relook at the methodology of Bukhari and Muslim. They are humans and hadith scholars have on many occasion disagreed with them. One example of many – when Bukhari took his work to the leading scholars of his time, they told him that they agreed with all but four of his hadith compilation. Hadith compilers continued their work long after Bukhari and Muslim again indicating they were not the final end-all-be-all of hadith compilation. Yet our so-called ulema continue to sell the idea to the Muslim public that Muslim and Bukhari are final and to disagree is blasphemy. It is as if that there is one Islam for hadith scholars and another for the Muslim public at large. This is manifest evil for any whose hearts can see.
Let me then expand on a re-thinking scheme.
Now, Al Shafi’i notes the criteria for Sahih in the following way:
"Each reporter should be trustworthy in his religion; he should be known to be truthful in his narrating, to understand what he narrates, to know how a different expression can alter the meaning, and report the wording of the hadith verbatim, not only its meaning. This is because if he does not know how a different expression can change the whole meaning, he will not know if he has changed what is lawful into what is prohibited.
“Hence, if he reports the hadith according to its wording, no change of meaning will be found at all. Moreover, he should be a good memorizer if he happens to report from his memory, or a good preserver of his writings if he happens to report from them. He should agree with the narrations of the huffaz (leading authorities in hadith), if he reports something which they do also. He should not be a Mudallis, who narrates from someone he met about something he did not hear, nor should he report from the Prophet (may Allah bless him and grant him peace) contrary to what reliable sources have reported from him. In addition, the one who is above him (in the isnad) should be of the same quality, [and so on,] until the hadith goes back uninterrupted to the Prophet (may Allah bless him and grant him peace) or any authority below him."
Ibn al-Salah more concisely, defines a Sahih hadith in the following manner:
"A Sahih hadith is the one which has a continuous isnad, made up of reporters of trustworthy memory from similar authorities, and which is found to be free from any irregularities (i.e. in the text) or defects (i.e. in the isnad)."
Using this broad definition, we can perhaps construct a solution for a more selective compilation of sahih as follows:
1. Accept all the hadith from the Golden Chain (Al-Shafi’i, Al-Malik, Nafi, Abdullah bin Umar)
2. Accept all the other hadith of Bukhari and Muslim based on the following criteria that at least two completely independent chains of narrations based on the criteria of Al-Bukhari / Al-Muslim going back to:
a. the Prophet (peace be upon him) or
b. The ten companions
c. The wives of the Prophet (peace be upon him)
3. Simultaneously, a critical study of hadith from a scientific point of view on the basis of Maurice Bucaille’s criteria used for his Quran analysis could help validate the actual purity of our hadith distillation.
This solution would give us a distillation of a high grade of Sahihs which is also concise and thus easily accessible to secondary / high school students and the public at large. The compilation should be made as simple and easy to read as possible, with combing variations of a hadith in a simple manner or stating one authentic variation that conveys the meaning and noting a critical variation as a last resort and only if it is truly critical or conveying a significantly different meaning. Another easy-to-read solution would be to structure the layout of the hadith similar to Sahih Al-Muslim rather than the subject-based and repeating nature of Al-Bukhari’s compilation. Yet another would be coding and indexing the isnad of each hadith in a simple and systematic way. For instance, a list of hadith narrators can be coded and indexed and then each hadith can simply have a code based isnad on top of the hadith. For example: A2-B4-C1-D5-E7.
The hadith thus coded should also be made available online and in soft copy with an emphasis to make them easily searchable and even perhaps compilable under different sets of criteria set by the software user.
The purpose is to distil the best of the hadith and to make it simple and easy for Muslims to access. The author has found in his own experience of studying hadith that the scholars that be, make it difficult and hard for you to access the hadith and try to make it look like something beyond the average mind to understand. The main stumbling blocks in understanding hadith and their compilation is not the subject but the way the subject has been presented to the people by those entrusted with this important aspect of Islam. Whether there is a vested interest in this or not I will leave the reader to decide.
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