A Few Comments Concerning The Issue of Regulating Public Space
There has been a great deal of confusion in the Muslim community swirling among questions about the possible relationship between, on the one hand, what may have been done in the lifetime of the Prophet -- as well as during the lifetimes of the Companions of the Prophet over the course of the reign of the first four caliphs -- in relation to the issue of regulating public space, and, on the other hand, what may be appropriate to do today in relation to the same issue involving the regulation of public space. The root of the term ‘hukumah’ [governance] refers to a process of seeking to assist an oppressor not to oppress, and such assistance includes helping those who would exercise this responsibility – that is, political and religious leaders … i.e., the government itself – to refrain from any inclination existing within such governance to oppress, exploit, or abuse those whom such governance is supposed to be protecting from these very problems.
The Qur’an says:
“And if there had not been Allah’s repelling of some people by others, certainly there would have been torn down cloisters, and churches, and synagogues, and mosques in which Allah’s name is much mentioned; and surely Allah will help the one who helps His cause; most surely Allah is Strong, Mighty. [Qur’an, 22:39-40]
Hukumah or governance is one of the means through which Allah repels the oppression of some people by others. Moreover, it is important to note that God alludes to the right of those who worship in cloisters, churches, synagogues, and mosques to all be free to remember, worship, and invoke the name of God in their own manner.
There is a Hadith which relates the story of Abu ‘l-Husayn, a companion of the Prophet, whose two sons had been converted to Christianity in Medina by two Syrian merchants and then accompanied those merchants back to Syria. When Abu ‘l-Husayn heard of this, he went to the Prophet and sought permission to go after his sons and bring them back – not only to Medina but to Islam. In answer, the Prophet recited the Qur’an: “There is no compulsion in Deen, truly the right way has become clearly distinct from error.”[Qur’an, 2:256] Upon hearing the foregoing, Abu ‘l-Husayn let his sons go their own way.
When Abu Bakr Sidiq (may Allah be pleased with him) was Caliph [died in the 13th year after hijrah and was Caliph from 632 A.D. to 634 A.D.] he sent the Muslim army into Syria. As he did so, he issued the following guidance:
“When you enter the land, kill neither old men, women, nor children. … Establish a covenant with every people and city who receive you peacefully, give them your assurances, and let them live according to their laws.”
The Prophet, as well as the first four caliphs, all made decisions concerning the regulation of the public space, but these decisions were not shari‘ah, per se. As has been pointed out repeatedly during this essay, shari‘ah is an expression of a person’s private spiritual journey in search of reality or the truth concerning human existence and the place of such existence in the scheme of things, whereas the decisions of the Prophet and the first four Caliphs were particularized applications of their understanding of, and insight into, the nature of Divine guidance which had been given to them and were intended to address the circumstances, history, conditions, problems, cultures, capabilities, and issues of those times.
As the Prophet was instructed to say:
“This is my way. I call to God– I and whoever follows me being certain.” [Qur’an, 12:108]
Just as the appropriate times for fasting, pilgrimage, and prayers are to be observed within a certain timeframe, so, too, there may be an appropriate timeframe or contingency-based set of considerations concerning the application of certain other facets of the Qur’an. However, in order to determine the truth of such matters, one needs to call upon Allah – not books of fiqh, jurisprudence, judicial precedent, or legislation.
In the Qur’an, the Jews are told that they should have judged matters in accordance with the guidance which had been given to them …
“And why do they make you – Muhammad – the judge when they have the Taurat wherein is Allah’s judgment?” [Qur’an, 5:43]
The Qur’an also indicates that Christians should be judging matters in accordance with the guidance [Injeel] which had been given to them …
“And the followers of the Injeel should have judged by what Allah revealed in it; and whoever did not judge by what Allah revealed, those are they who are transgressors.” [Qur’an, 5:47].
Moreover, the Prophet is also told in the Qur’an that if the Jews and Christians come to him for purposes of seeking judgment in a matter, then:
“… judge between them or turn aside from them, and if you turn aside from them, they will not harm you in any way; and if you should decide to serve as a judge, then judge between them with equity; surely God loves those who judge equitably.” [Qur’an, 5:42]
The choice of whether, or not, to decide issues which were brought to him by people from the Christian and/or Jewish community was up to the Prophet. He was made keeper over their affairs and, in fact, the Prophet was reminded – as noted in the foregoing commentary – that both the Christian and the Jewish peoples had been given their own means of deciding matters through the Torah of Moses and the Injeel of Jesus (peace be upon him).
The Prophet Muhammad (peace be upon him) is no longer with us in a physical form. The Companions are no longer with us in a physical form.
For the most part, we do not have access to the intentions through which the Prophet or the first four caliphs made their decisions and judgments concerning the regulation of public space. If the Prophet were with us now as a physical presence to which we had ready access, one cannot be sure that he necessarily would decide matters today concerning the regulation of public space exactly as he did more than 1400 years ago when circumstances, conditions, history, culture, and needs were very much different than they are today. Yet, there are people today who have arrogated to themselves the presumption that they know what the Prophet would do or how he would decide matters concerning the regulation of public space if he were here with us in the present set of circumstances.
It is reported that a person wanted to place a book written by Imam Malik in the Sacred Mosque. Apparently, the idea behind that individual’s desire was so that people coming to the Sacred Mosque might discover the book, read it, and, God willing, learn something from its contents. When Imam Malik heard about the person’s desire to place one of the Imam’s books in the Sacred Mosque, Imam Malik indicated that he was not in favor of such an action.
Imam Malik is reported to have said: “The companions of the Messenger of Allah disagreed about the branches and dispersed to different countries, and each one is correct.” He further commented: “The people have handed over to them positions, and they heard hadith and they examined reports, and each people takes what was handed over to them, and they yield to Allah with it. So, leave the people alone and what they choose for themselves in every country.”
The Qur’an reminds us that:
“… for every one of you did We appoint a law and a way, and if Allah had wished He would have made you a single people, but that He might try you in what He gave you, therefore strive with one another to hasten to virtuous deeds; to Allah is your return of all, so He will let you know that in which you differed;” [Qur’an, 5:48]
Prior to becoming Caliph, Hazrat Abu Bakr (may Allah be pleased with him) said:
"Listen to me, ye people. Those of you who worshipped Muhammad know that he is dead like any other mortal. But those of you who worship the God of Muhammad (peace and blessings be upon him) know that He is alive and would live forever."
Then he repeated a passage from the Qur’an:
"And Muhammad is no more than an apostle; apostles have already passed away before him; if then he dies or is killed will you turn back upon your heels? And whoever turns back upon his heels, he will by no means do harm to Allah in the least and Allah will reward the grateful.” [Qur’an, 3:144]
Public space should be governed in a way that prevents oppression, exploitation, or abuse of any kind to undermine or interfere with people’s basic right – which is granted by God – to decide the spiritual direction of their path in life. This is a right and a freedom which each human being has so long as whatever acts arise out of such choices do not spill over into the lives of other individuals and, in the process, adversely or problematically affect the latter’s ability to freely chose and act with respect to their own individual course in life.
The public space, or commons, should be governed through principles of justice, equitability, peace, tolerance, integrity, honesty, charitableness, freedom, compassion, balance, harmony, and the sort of mediated settlements which help limit, if not eliminate all together, all forms of oppression, persecution, abuse, and exploitation. A public space governed in accordance with the foregoing qualities will, if God wishes, generate the type of environment which may prove to be most conducive to the exercise of the basic right to choose between good and evil – a responsibility which belongs to each and every human being.
If one looks to the example of the Prophet, the public space of his community was regulated in accordance with all of the foregoing considerations. He did not force people to pursue shari‘ah but, rather, regulated public space in such a way as to provide people with the fullest opportunity to individually pursue shari‘ah as rigorously as the latter individuals were so inclined to do as long as that pursuit did not infringe upon the right of others to do as they were inclined to do with respect to their own individual journey of shari‘ah. Moreover, quite frequently, the Prophet made judgments concerning the regulation of public space which were in accordance with pre-Islamic, customary practices of the Arab or Jewish tribes.
The Qur’an instructed the Prophet to:
“Say: ‘This is the truth from your Lord’, then, whoever wills let him believe, and whoever wills let him disbelieve.” [Qur’an, 18:29]
At another juncture the Qur’an informs the Prophet:
“You shall remind; you are entrusted to remind. You are not a watcher over them.” [Qur’an, 88:21-22]
And, at another point, the Qur’an indicates:
“Say, ‘Obey Allah, and obey the Messenger.’ If they refuse, then, he is responsible for his obligations, and you are responsible for your obligations. If you obey him, you will be guided.” [24:54]
Moreover, the Qur’an states:
“The guiding of them is not thy duty (O Muhammad), but Allah guides whom He will.” [Qur’an 2: 272).
If, according to the Qur’an, the Prophet is not responsible for the guiding of people to God, and if the duty of the Prophet is not to watch over whether, or not, people pursue shari‘ah, and if God is making it clear that it is up to the individual as to whether he or she believes in the truth which has been sent through the Qur’an and that each person has her or his own responsibility with respect to God, then, why do Muslim religious scholars, imams, theologians, mullahs, leaders, and the like all believe they have duties and responsibilities which were not entrusted to the Prophet? And, in the light of the foregoing considerations from the Qur’an, what is the source of their authority for assuming such duties and responsibilities?
Some religious scholars, would-be leaders, and theologians point to the following Quranic ayat as a possible source for what they consider their ‘rightful’ authority over people:
“O believers! Obey Allah, obey the Rasool and those charged with authority among you. Should you have a dispute in anything, refer it to Allah and His Rasool, if you truly believe in Allah and the Last Day. This course of action will be better and more suitable.” (Qur’an 4:59)
When would-be leaders cite the foregoing verse and seek to use it as an authority for expecting, if not demanding, that others should be obedient to the former, those who approach things in this manner are not only making several questionable assumptions, but, as well, such individuals often tend to act contrary to the full text of the guidance. More specifically, an assumption is being made that the sort of ‘authority’ to which the previous Quranic verse alludes is referring to worldly authority as opposed to spiritual authority, and a further assumption is being made that such individuals have been “charged” or given responsibility by God – or the Prophet Muhammad (peace be upon him) -- to exercise authority over other individuals. Furthermore, when disputes arise in the community, then, contrary to the guidance of the Qur’an, such religious and political leaders often do not refer the matter to either Allah or the Prophet, but, instead, attempt to decide the matter according to their own theological likes and dislikes – with the assistance of imams, mullahs, and religious scholars who are loyal to those leaders -- and, then, seek to impose – forcibly, if necessary -- their decisions on others.
The Prophet had a unique position within the Muslim community. Under the Divinely-sanctioned circumstances surrounding such a standing, the public, for the most part, did not wish to place constraints on what the Prophet could and could not do. This would have been antithetical to the nature of his position and the Divine authority in which his position was rooted – something which, after all was said and done, most [but not all] people in the community acknowledged and accepted.
However, there were those who came after the Prophet [and I do not necessarily have the four ‘righteous Caliphs’ in mind here] who enjoyed something very similar to the status of the Prophet within the Muslim community. As a result, those individuals became rulers in a more or less absolute sense without necessarily having that status sanctioned by Divinity, even though, obviously, such rulers were permitted by God to do whatever they did.
The Prophet had appointed no one to succeed him with respect to the regulation of public – as opposed to spiritual – space. On the other hand, the individuals who followed the Prophet as leaders of the community often were supported through the general trust of the public with respect to the presumed character, morality, piety, and good intentions of whoever it was that became ruler.
Once someone was elected to lead the community – and this was usually by a small group of individuals rather than the community as a whole – or in those cases where a current caliph appointed a successor – and this tended to be the case quite frequently because fathers tended to appoint their sons as their successors -- the general public would be required, en masse, to take ba’yt, or an oath of allegiance, with respect to the individual who would be king or sultan. Unfortunately, such a process offered few, if any, avenues through which a person might opt out of that oath or agreement either before or after the oath of allegiance was to be given, nor did that system permit or encourage the general public to play much of a rigorous, active role in determining who would be ruler or whether, or not, there should only be a single leader for the community -- as opposed to some sort of system of self-governance in which shura or consultation was used as the means through which to address the problems which confront a given community in accordance with the Quranic guidance which says:
“And their rule is to take counsel among themselves …” [Qur’an, 42:38]
In addition, apparently, many people forgot what Hazrat Abu Bakr Siddiq (may Allah be pleased with him) said upon becoming Caliph:
“Obey me as long as I obey Allah and His Prophet. When I disobey Him and His Prophet, then obey me not.”
Hazrat Abu Bakr Siddiq (may Allah be pleased with him) was alluding to the right of people to opt out of their oath of allegiance to him – or to any leader. The determining factor was not the identity of the leader, but, rather, the determining factor was whether, or not, such a person was acting in accordance with the guidance of the Qur’an or the example of the Prophet Muhammad (peace be upon him).
The belief that there should be just one leader who was either given or assumed authority to do whatever he deemed to be appropriate became corrupted within a fairly short period of time following the passing away of the Prophet. When this sort of corruption was thoroughly entrenched and became institutionally calcified, many people apparently had considerable difficulty grasping the idea that the Qur’an actually served as, among other things, a Bill of Rights that was intended to protect people against oppression, exploitation, or abuse from their political or religious leaders. This sort of difficulty was maintained and perpetuated through the manner in which, on the one hand, the sultans and kings, and, on the other hand, various imams, qadis, muftis, and theological scholars would engage in reciprocal back-scratching among themselves with respect to mutually framing the historical situation in such a way that the majority of the community were induced to believe that both the leaders and their theological accomplices were the proper guardians and representatives of Sacred Law, despite the fact that many of these individuals might not have recognized the nature of Sacred Law or shari‘ah even if the former tripped over the latter.
The regulation of public space is one issue, and the pursuit of shari‘ah is quite another matter and completely independent of how public space is to be regulated. To seek to impose on others, through the public space, one’s own ideas about what the nature of the spiritual journey ought to involve is to engage in a form of spiritual abuse.
When anyone – imam, mufti, theologian, scholar, leader, qadi, mullah – seeks to control the spirituality of another human being, then, that the former individual has transgressed due limits and has entered into the realm of spiritual abuse or exploitation, and, therefore, oppression. As the Qur’an reminds us:
“Fight in the cause of Allah those who fight you, but do not transgress the limits, for God does not love the transgressors. [Qur’an, 2:190]
“… tumult and oppression are worse than slaughter.”[Qur’an, 2:191]
“And fight them till there is no more oppression, and Deen should only be for Allah, but if they desist, then there should be no hostility except against the oppressor.” [Qur’an, 2:193]
The foregoing is not sanctioning leaders to force Deen upon people, but, rather, the foregoing ayat is a reminder to everyone – especially leaders -- that Deen belongs to Allah and should not be interfered with or undermined by anyone. Moreover, when Deen – that is, the process of nurturing and enhancing the relationship of an individual with God, and, indeed, this is the cause of Allah -- is subject to oppression, then people have the right to resist such aggression so long as the form of that resistance does not transgress due limits of propriety, and one of the limits of propriety is that resistance should only be directed toward those who are being oppressive … no one else.
Indeed, as the Qur’an makes clear elsewhere:
“The blame is only against those who oppress human beings with wrong-doing and
insolently transgress beyond bounds through the land defying right and justice.” [Qur’an, 42:42]
The foregoing remains true even when the ones who are doing the oppressing are the very ones – in the form of religious or political leaders – who supposedly have assumed responsibility for protecting the people against such oppression.
Scholarly debates, rigorous research, discussions, informal conversations, symposia, conferences, round-table sessions, formal talks, books, articles, podcasts, television programs, documentaries, educational programs, and so on, are all legitimate venues through which to exchange views, ideas, and various considerations concerning problems, questions, and issues of spirituality. The foregoing are all legitimate venues through which people may consult with one another on such matters – provided there is no compulsion or oppression involved in these activities either with respect to the matter of attending these sort of exchanges or with respect to having to abide by what is said during those sessions.
In this respect, the Qur’an indicates:
“Call to the way of your Lord with wisdom and goodly exhortation, and have disputations with them in the best manner.” [Qur’an, 16:125]
Although the foregoing guidance was specifically addressed to the Prophet, and although the calling others to the way of God is not the responsibility of a non-Prophet, nonetheless, when one engages in discussions with others concerning various issues, problems, and questions affecting the quality of public space, one still can follow the sunna of the Prophet in such matters and, thereby, seek to do so “with wisdom and goodly exhortation, and have disputations with them in the best manner.”
“O ye who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people incite or seduce you not to act equitably; act equitably, that is nearer to piety (taqwa) , and be careful with respect to Allah, surely Allah is aware of what you do.” ‘Qur’an, 5:8]
The public space or commons should not be operated in accordance with any philosophy or theology of public policy which imposes economic, legal, political, physical, moral, intellectual, educational, or cultural agendas on the members of the community who inhabit that public space. The sole task of governance is to guard against the emergence of any kind of oppression, exploitation, or abuse which may arise within the community or which threatens such a community from an external source.
Moreover, all members of the community have a duty of care toward themselves and others to contribute to helping those who are entrusted with governance to succeed in their sole task and responsibility concerning the struggle against oppression, along with the close cousins of oppression – namely, exploitation and abuse.
God:
“… made the balance, That you may not be inordinate [exceed limits, or transgress boundaries] in respect of the measure. And keep up the balance with equity and do not make the measure deficient. [Qur’an, 55:7-9]
The balance, the measure, equity, and taqwa are all expressions of truth and justice. They are all expressions of the Sacred Law. They are all expressions of a realized shari‘ah.
Determining the hukm or realities of such truths are challenges to which, God willing, individuals must aspire. They are not challenges which can be imposed on people or with respect to which compulsion is appropriate.
On the other hand, the ones who are entrusted to exercise governance have a duty of care to assist oppressors not to oppress others -- including themselves. Indeed, the Prophet is reported to have said that one should “Assist any person who is oppressed – whether Muslim or non-Muslim.”
The primary forms of oppression, exploitation and abuse come in the form of those actions which are likely to undermine or interfere with an individual’s God-given right to pursue, or not pursue, the realities and truths of Sacred Law and shari‘ah according to the nature of that person’s capacity, circumstances, level of understanding, inclinations, and God’s Grace … so long as the exercise of such choice does not interfere with, or undermine, the right of others to address such issues in their own manner. All other expressions of oppression, exploitation, and abuse are variations on the foregoing theme.
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