Various religious scholars, theologians, and mullahs want shari‘ah to cover commercial/economic, penal, real estate, contract, tort, inheritance, family, tax, government, and international law. However, none of these considerations – however important they may be under certain circumstances -- is the purpose of shari‘ah.
Naturally, to the extent that individuals realize the purpose of shari‘ah, then, the water drunk at the end of the road that is followed during the process of observing shari‘ah – both as a spiritual means and as a goal -- will have ramifications for all of the foregoing legal considerations. This is true with respect to the modes of equitability, as well as the quality of the character traits, through which people engage one another in their respective dealings. This also is true with respect to the manner in which a person who has responsibility for helping to arbitrate and mediate conflicts within a community is able to bring spiritual wisdom or insight to bear to assist people to come to harmonious solutions to such conflicts.
Nonetheless, shari‘ah is only for the individual. It is the individual’s path to truth, to reality, to the realization of fitra and essential identity, and, as such, shari‘ah is not a group path or legal journey … although, as indicated above, the realization of truth which, God willing, takes place, during the journey of shari‘ah does have ramifications for both group/social/community and juridical issues … but not in the sense which is usually believed to be the case.
Shari ‘ah cannot be forcibly imposed on anyone, nor can compulsory measures be used to impose such matters on others. Shari‘ah cannot be legislated, and when counsel is sought with respect to shari‘ah, one is not obligated to follow that counsel unless one’s heart resonates with what is being said or unless one’s heart resonates with the one who is offering the counsel, and, therefore, one has faith in the counsel being offered and provided that the counsel being offered does not induce one to impose that counsel on others or oppress others through such counsel.
Shari‘ah cannot be used as basis for institutional government of any kind. On the other hand, the fruits of pursuing and applying shari‘ah can benefit the manner through which public space is regulated.
The Prophet and the subsequent caliphs ruled in accordance with the truth to which shari‘ah opened them up. Nonetheless, their manner of regulating public space was not shari‘ah, per se.
During those early times, people who were not Muslim were not compelled to become Muslim or to act in accordance with Muslim spiritual traditions. Moreover, this absence of compulsion with respect to non-Muslims is the clearest indication possible that shari‘ah was neither compulsory, nor was it being imposed on communities, nor was it an integral part of the regulation of public space.
Rather, a public space or commons was being established through which people would have freedom of choice, as well as freedom from oppression, together with the promise of justice so that the opportunity to pursue shari‘ah in a peaceful manner would be available to everyone. Whatever laws were constructed with respect to commercial, penal, real estate, contract, tort, inheritance, family, and international issues were intended to serve no other purpose than to help establish a public space that was relatively peaceful, harmonious, and free from oppression of any kind and through which people would each, individually, have the opportunity to pursue [or not pursue] shari‘ah according to her or his individual choices.
Consequently, none of the foregoing sorts of laws concerning the regulation of public space carry any binding authority except to the extent that these arrangements give such substantial, demonstrable expression to principles of truth and justice that the people in the community are witnesses to the obvious benefit of those laws with respect to the manner in which they serve the public interest. Moreover, the public interest is served when an environment is created that is relatively free from oppression and injustice, as well as which gives people an array of degrees of freedom through which the members of that community may become committed to a rigorous seeking of truth and justice in all matters.
In the Qur’an, one finds the following guidance:
“No soul shall have imposed on it a duty but to the extent of its capacity.” [Qur’an, 2:233]
And again:
“We do not impose on any soul a duty except to the extent of its ability.” [Qur’an, 6:152]
And, again:
“And we do not lay on any soul a burden except to the extent of its ability. [Qur’an, 23:62]
And again:
“We do not impose on any soul a duty except to the extent of its ability.” [Qur’an, 7:42]
And, finally:
“Allah does not impose upon any soul a duty but to the extent of its ability; for it is (the benefit of) what it has earned and upon it (the evil of) what it has wrought: Our Lord! do not punish us if we forget or make a mistake; Our Lord! do not lay on us a burden as Thou did lay on those before us; Our Lord do not impose upon us that which we have not the strength to bear; and pardon us and grant us protection and have mercy on us; Thou art our Patron, so help us against the unbelieving people. [Qur’an, 2:286]
On five different occasions, the Qur’an confirms that Allah does not impose any burdens, duties, or obligations on an individual which are beyond the ability or capacity of a person. God knows what the capacity or ability of any given individual is, and Divinity does not exceed the limits inherent in those capacities.
As we, God willing, acquire more knowledge and come to gain a deeper understanding concerning our relationship with Allah, then, the nature of our spiritual status changes. As a result, there is more for which we can be held accountable as a function of such growth in understanding and knowledge, but this is a Divine accountability and not a human accountability as far as matters of Deen are concerned.
When human beings seek to impose shari‘ah – however construed – on others, such individuals are arrogating to themselves the status of Lordship. They are not only seeking to usurp God’s relationship with the individual, but they also are claiming – without any evidence -- that they know what the spiritual capacity of a given individual is.
In the process, limits are being transgressed. Allah sees the spiritual condition of human beings and knows what the limits of their capacities are, but theologians, jurists, imams, rulers, or legislators do not enjoy such a privileged position, and, therefore, they lack the knowledge and insight which would permit them to possess the wisdom to know what an individual’s God-determined limits are and act accordingly.
The Prophet was said to have spoken with people according to the level of understanding of the latter. Unfortunately, for the most part, the theologians and religious scholars of today tend to speak with people according to the level of understanding of the one who is doing the speaking – that is, the theologian or religious scholar – and, as such, lack all insight into the capacities, abilities, and levels of understanding of those being addressed.
The Prophet Muhammad is reported to have said: “What I have commanded you to do, perform it to the extent that you are able and refrain from what I have forbidden you to do.” [Bukhari, i‘tisam, 6; Muslim, fada’il, 130]
Here, again, there is an indication that shari‘ah is not a function of compulsion, nor is shari‘ah a matter of one size fitting all. The Prophet is alluding to the existence of differences in abilities and circumstances of various individuals, and those who are being addressed are being encouraged to comply with what has been said in accordance with what they are able to do rather than in accordance with what someone else – say a theologian, religious scholar, or the like -- expects such people to do.
“Each one does according to his rule of conduct, and thy Lord is best aware of the one whose way is right.” [Qur’an, 17: 84]
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There is a Hadith Qudsi which says:
“I am according to the impression that My worshipper has of Me [that is, God] so let the impression of Me be Good.” [Bukhari, tawhid, 15]
Theologians, imams, muftis, and jurists often rule in accordance with their own opinions about God. As a result, they tend to be inclined to impose on others that which is in accordance with their impression of God.
Apparently, the impression which all too many Muslim theologians, jurists, muftis, and religious scholars seem to have of God is that Allah is: petty, small-minded, vindictive, unforgiving, intolerant, cruel, punitive, arbitrary, mean-spirited, lacking in wisdom, oppressive, and in desperate need of obedience. Such a poor impression seems to be the case because these sorts of qualities often are reflected in their fatwas, pronouncements, rulings, and writings concerning the illicit attempts of these sorts of individuals to impose shari‘ah on others, and one presumes that they are acting in accordance with what their impression of God indicates is expected of them by God.
The word ‘qadi’ often is translated as ‘judge’. However, such a translation really doesn’t properly reflect the actual role that a qadi should have.
A qadi – in its original sense and usage -- refers to one who helps settle or decide an affair (‘qada’). Nevertheless, this process of settling an affair is not a matter of imposing a judgment on the various parties to the affair under consideration.
A qadi is not trying to impose a perspective which is external to either the particulars of the situation being explored or the individuals who are seeking a just resolution to that situation. Rather, the task of, and challenge facing, a qadi is one of trying to assist individuals to navigate among an array of spiritual possibilities and work their collective way toward a destination which will be a harmonious solution for everyone involved – without necessarily knowing, in any predetermined manner, what the nature of such a destination will be or what that destination might look like at the beginning of the journey.
As such, a qadi is more of a resource person, facilitator, and a communicator than she or he is a judge of matters. The parties to a given conflict are helped by a qadi to explore the nature of that conflict in terms of its history, perceptions concerning that history, the nature of community and/or family, different needs of the parties to the conflict or affair, various character traits, the abilities of the individuals involved, and ideas concerning the nature of justice.
A qadi encourages the participants to address and discuss issues in such a way that the participants are the ones who learn how to struggle their way toward arriving at an understanding concerning how their affair or situation might best be resolved. The qadi guides this exploratory discussion in accordance with a principle voiced by the Prophet Muhammad (peace be upon him) – namely, “la darar wa la dirar”, which in today’s parlance might be translated as ‘do no harm’.
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In the Qur’an one finds the following ayat:
“And it does not beseem the believers that they should go forth all together; why should not then a company from every party from among them go forth they may apply themselves to obtain understanding of deen, and that they may warn their people when they come back to them that they may be cautious. [Qur’an 9:122]
Fiqh is related to the word: tafaqquh which means understanding and, in the context of the foregoing Quranic ayat, the understanding which is being sought concerns the nature of Deen.
Furthermore, such understanding is not something which is to be imposed on people. Rather, the previous Quranic ayat says that those who seek such understanding are to use the knowledge which is obtained in order to “warn their people” so that those people “may be cautious” concerning matters of Deen.
In addition, the Qur’an indicates:
“We have revealed [anzallna] to you al-zikr [The Qur’an] so that you may explain to people what has been brought down [nuzila] to them; and that they may reflect.” [Qur’an, 16:44]
Sharia‘ah is not necessarily a matter of telling people what to do – although this may be so in some instances. Instead, the Qur’an indicates that people are having things explained to them concerning the nature of revelation or remembrance, and, then, those individuals are being asked to reflect on that which is being explicated so that they may take what is being said and have it inform their own shari‘ah or journey/struggle toward the truth.
The process of understanding Deen – tafaqquh fil-din – requires one to struggle toward becoming open or receptive to the hukm of Deen – that is, its governing principle, reality, or truth – in any given set of circumstances. Hakim is one of the Divine Names and refers to the One Who determines the property of a given aspect of reality, and, therefore, the individual is seeking to become open to the nature of the truth or reality which Allah, through the agency of being Hakim, establishes as the governing authority or principle or reality of something in a given set of circumstances.
In this context, one often hears the term Usul al-fiqh. Fiqh, as already indicated, refers to the process of struggling to reach an understanding concerning the nature of the hukm or governing reality of Deen within various circumstances, and the term usul refers to the sources or principles one needs to understand in order to be in a position to be able to counsel or warn others with respect to the nature of Deen.
The principles and sources which are to be understood are all contained in the Qur’an. After all, God has “neglected nothing in the Book.” [Qur’an, 6:38]
Fiqh is the process of engaging the Qur’an for purposes of struggling toward the truth with respect to revelation or guidance. Fiqh is a search for right understanding, right belief, right character, right action, and right balance in the pursuit of doing justice to the truth or hukm of individual lived circumstances.
Each novel situation presents the practitioner of fiqh with possibilities and choices in relation to selecting that which may be right, good, just, and/or appropriate behavior to pursue with respect to that which, God willing, might be of most spiritual benefit to an individual or individuals in a given context. Fiqh is the process of seeking to come to an appropriate understanding of the hukm – or reality and governing principle or authority -- for a given set of circumstances, and, then, using that understanding to establish what are appropriate ways for proceeding through or conducting oneself in such circumstances.
A qadi seeks to induce the parties to a conflict to engage in the process of fiqh concerning the affair or conflict or issue which brought the various parties. Collectively, those individuals seek to struggle, with the assistance of the qadi, toward arriving at an understanding of the hukm – that is, the governing principle or reality – which has authority in the matter at hand.
For many, there is a sense in which life takes on the appearance of a judicial proceeding. For example, Muslims believe there is to be a Day of Judgment. We are further informed that what we do, and do not do, will be used as evidence -- both in support of, as well as being counted against, us -- and that our hands, feet, and other bodily members will give testimony concerning various matters on the Day of Judgment. Muslims also believe that punishments and rewards are associated with the manner in which evidence and judgment intersect with one another. Muslims further believe that a record of everything one does in life is being maintained and that each of us will carry such a record in either our right hand in front of us or our left hand behind us on the Day of Judgment.
Given considerations like the foregoing, when shari‘ah and Sacred Law are mentioned together, many people are inclined to jump to the conclusion that Sacred Law and shari‘ah must be matters which give expression to legal injunctions. Nevertheless, one can stipulate to the truth of ideas involving: the Day of Judgment, evidence, testimony, a real-time record, punishment, or reward, and, yet, still maintain that the Sacred Law and shari‘ah are not, ultimately, about judicial proceedings but, rather, are about truth, knowledge, understanding, spiritual realization, essential identity, and the process of purification which is necessary to, God willing, put a person in the position of being receptive to whatever God may wish to disclose to that individual concerning the nature of Sacred Law and the process of shari‘ah.
Life consists of a series of opportunities through which to purify ourselves. For example, the Qur’an says:
That person prospers who purifies oneself, invokes the name of one’s Lord, and prays.”
[Qur’an, 87: 14].
And, again:
But those will prosper who purify (tazakka) themselves and glorify the Name of their Guardian Lord and lift their hearts in prayer. [Qur’an, 87: 14-15]
And, again:
“Those who spend their wealth for increase in self-purification and Have in their minds no favor from anyone for which a reward is expected in return, but only the desire to seek for the Countenance of their Lord Most High.” [Qur’an, 92:18-20].
This last ayat in particular indicates that the purpose of purification is linked only to a “desire to seek for the Countenace of their Lord Most high” – without any thought of reward. This theme is echoed in another verse of the Qur’an:
“Say: Surely, my prayer and my service of sacrifice, my life and death are all for Allah, the Lord of the worlds. [Qur’an, 6:162]
Or consider the following verses from Surah Shams [The Sun]:
In the Name of Allah, the Beneficent, the Merciful.
I swear by the sun and its brilliance,
And the moon when it follows the sun,
And the day when it shows it,
And the night when it draws a veil over it,
And the heaven and Him Who made it,
And the earth and Him Who extended it,
And the soul and Him Who made it perfect,
Then He inspired it to understand what is right and wrong for it;
He will indeed be successful who purifies it,
And he will indeed fail who corrupts it. [Qur’an, 91:1-10]
According to my shaykh, the rhetorical style of the Qur’an is such that whenever God wishes to draw attention to the importance of some given point, theme, or issue, oaths are used to introduce such a point, theme, or issue. The more oaths there are which occur prior the matter in question, the more important is the issue to which our attention is being directed.
Nowhere else in the Qur’an does one find as many oaths piled upon oaths as one does with respect to the opening verses of Surah Shams. To what is our attention being drawn and what is so important? – the process of purification.
What does purification lead to if God wishes? Purification leads to taqwa.
And, why is taqwa important? Because the one who is in a condition of taqwa is the one who, God willing, shall be taught knowledge and discernment by God.
“Be Godfearing [have taqwa], and God will teach you [Qur’an, 2:282]
In other words, be careful with respect to one’s relationship with Allah. Understand that such a relationship is rooted in the hallowed, sacred ground of Being and that one must seek to gain insight into that ground, and if one exercises due diligence in these respects, then, God willing, one will be taught knowledge by God.
“If you are godfearing (have taqwa), He will give you discernment [furqanan].” [Qur’an, 8:29]
The process of developing an appropriate awareness and respect for the sacredness of Divine presence is a work or ‘amal . This struggle is a form of remembrance or zikr.
With respect to what is one to be given discernment or about what is one to be taught? One is to be taught about, and given discrimination concerning, the nature of Sacred Law and the process of shari‘ah.
One of the prayers of the Qur’an is”
“O my Lord, increase me in knowledge.” [Qur’an, 20: 114]
One is seeking knowledge of the truth concerning the nature of the Sacred Laws governing the Created Universe and one’s place in it. One is seeking knowledge about the nature of shari‘ah and how that process both leads to, as well as is an expression of, the Sacred Law. One is striving toward an understanding of the hukm which governs, and has authority over, this or that aspect of being – including one’s own essential identity and spiritual capacity.
The five pillars and zikr [both in their role as basic, fundamental expressions of shari‘ah that are intended to be accessible to all, as well as in conjunction with their role as supererogatory extensions of those basic fundamentals] are ways, God willing, of striving toward taqwa. The five pillars and zikr are processes of purification which, God willing, helps rid one of everything which can serve as a source of distraction, distortion, bias, and corruption concerning our achieving a state of receptivity – that is, taqwa – with respect to the real teachings of spirituality involving the Sacred Laws of the Created Universe.
The five pillars are not the end of matters, but are, rather, the beginning of a process that is intended to lead one to the place of drinking the water or knowledge which, God willing, renders one receptive to the hukm of God’s Word or revelation. Nonetheless, there are many gradations of knowledge and understanding concerning such matters.
The five pillars and zikr which are practiced by a Muslim are engaged through a different understanding than are the five pillars and zikr which are observed by a Momin or Mohsin. The five pillars and zikr of the one who is a condition of taqwa is different from those who are not in such a spiritual condition. The five pillars and zikr of an ‘abd of Allah is different from the five pillars and zikr of someone who is not an ‘abd of Allah.
“Whoever submits one’s whole self to Allah and is a doer of good has indeed grasped the most trustworthy handhold.” [Qur’an, 31:22]
And, as well:
“O Humankind! Surely you are toiling towards the Lord, painfully toiling, but you shall meet Him … you shall surely travel from stage to stage.” [Qur’an, 84: 6, 9]
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Today, and for many centuries now, all too many Muslim religious scholars, theologians, imams, mullahs, and so on have sought to make the process of coming to a proper understanding of the nature of Sacred Law and shari‘ah an unnecessarily complex, convoluted, and a most difficult and contentious journey. According to such individuals, one must become familiar with some 1400 years worth of various people’s religious fatwas and theological meanderings, and/or one must become an apprentice with respect to some given madhhab or school of jurisprudence, and/or one must undertake to learn so many thousands of hadiths, and so on, before one can be said to be in a position to properly understand the nature of Sacred Law and shari‘ah.
However, the Qur’an says:
Allah does not desire to put on you any difficulty, but He wishes to purify you and that He may complete His favor on you, so that you may be grateful [Qur’an 5:6] -- ma yaridu Allahu li-ajala alaykum min haraj.
Shari‘ah is not a matter of intellectualized, rationalistic, or politicized engagements of the Qur’an. Shari‘ah is a process of purification entailing activities such as prayer, fasting, charitableness, pilgrimage, remembrance, service, worship, and the acquisition of character traits such as: gratitude, repentance, tolerance, perseverance, integrity, honesty, humility, nobility, forgiveness, patience, compassion, love, generosity, kindness, and so on – all of which will assist one to pursue shari’ah’s journey toward taqwa and, in turn -- if God wishes –to real, essential knowledge concerning both the nature of shari‘ah and the Sacred Law governing Created existence.
One pursues these activities as best one’s circumstances permit and according to one’s capacity to do so. To demand that more than this be done or to demand that people pursue this in accordance with someone’s theological interpretation of matters is to impose an oppressive difficulty on people, and, yet, this is precisely what all too many Muslim theologians, mullahs, and religious scholars would do when they claim that people must be made to act in accordance with those people’s arbitrary ideas concerning the nature of shari‘ah and the Sacred Law.
“And God wishes for you that which is easy, not what is difficult.” [Qur’an, 2:185]
That which is easy is not necessarily that which is without struggle. Rather, that which is easy is that which falls within one’s capacity to accomplish if one makes efforts in this regard and if God supports such efforts.
Through the process of purification, God is seeking to assist us to simplify our lives. In other words, God is wishing for us to have ease – at least as much as this is possible in this life – rather than difficulty.
When everything we do is distorted, filtered, framed, and corrupted by our biases, delusions, and false understandings, life becomes very difficult – much more difficult than it has to be. However, through the process of purification – that is, through the journey of shari‘ah -- one begins, God willing, to not only shed all the unnecessary conceptual and emotional baggage which we impose upon ourselves through our biases and false understanding concerning the nature of reality and ourselves, but, as well, one is brought to a station of taqwa where one is taught the kind of knowledge and discrimination by God which helps ease us through the ups and downs of lived existence.
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