During the time of the Prophet Muhammad (peace be upon him) there were occasions – and, in fact, these were not many in number -- in which rigorous penalties were applied in conjunction with the commission of certain crimes. There were a number of reasons for this – reasons which are no longer necessarily applicable to present circumstances.
First, the law of retribution was already the acknowledged and accepted way of doing things among the Arabs even before the emergence of Islam in Arabia. The revelation of the Qur’an indicated that such a law could continue to be exercised, but, at the same time, people were reminded that forgiving such transgressions would be better for the believers and pointed out, as well, that this same principle of forbearance also had been in place among the Jewish people. Thus, in the Qur’an, one finds:
“We have ordained [in the Torah] that a life [should be taken] for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and wounds [are to be punished] by qisas [exact retribution or retaliation]. But if someone remits exact retaliation by way of charity, that will be an act of atonement for that person. Whoever fails to exercise discernment in accordance with what God has revealed shall be of the unfair ones. [Qur’an, 5:45]
One of the recurrent themes of the Qur’an was to guide individuals toward constructively reforming the way in which they engaged themselves as well as one another. These reforms often were introduced over a period of time in relation to, among other things, prayer, fasting, alcohol, slavery, and the treatment of women.
The principle of retribution continued to be permitted not because such a policy was necessarily the best way of dealing with various situations but, rather, because many Arabs in those days would neither have tolerated nor understood any approach to such issues that departed very much from their usual customs in these matters. At the same time, the Qur’an sought to induce people to begin to reflect on issues like retribution by emphasizing the importance of qualities such as forgiveness, tolerance, humility, patience, love, preferring others to oneself, generosity, justice, compassion, mercy, being charitable, and so on. Thus, one finds in the Qur’an verses such as the following:
“Take to forgiveness and enjoin good and turn aside from the ignorant.” [Qur’an, 7:199]
Another factor involved with permitting certain harsh punitive measures to be applied during the lifetime of the Prophet concerned the right of individuals to ask for ‘purification through punishment’. More specifically, there were people who came to the Prophet and confessed sins with which harsh penalties were associated such as theft, fornication, and adultery, and they confessed such sins not because anyone had evidence to prove that those individuals had committed transgressions but because the individuals in question believed in the idea that if one pays for a given sin in this world, one will not be held accountable for that sin on the Day of Judgment – the slate is wiped clean in that respect, and one has been purified.
The Prophet did not encourage people to come to him and confess their sins. In fact, he indicated that people should, instead, sincerely repent before God with respect to their sins and to seek God’s forgiveness in those matters.
However, the Prophet also made it clear to the community that if people did come to him and confess their sins, then – as a Prophet who had a responsibility to maintain equitability within the community -- he would become obligated to take steps which might lead to certain punitive measures being applied to the case – measures which were associated with the commission of such transgressions. Nonetheless, some people – several of whom are talked about in the Hadith literature – did approach the Prophet with a clear understanding of what was being set in motion through their confessing of some transgression, but these individuals wished to avail themselves of the principle of ‘purification by punishment’ because they wanted the certainty that such a sin would not be held against them on the Day of Judgment.
One case which is related through the hadiths concerns a woman who came to the Prophet wishing to confess to adultery. The Prophet responded in a manner which suggested that he did not wish to hear what the woman had to say in this regard.
The woman kept insisting on confessing her sin to the Prophet in order to be able to undergo a process of purification through receiving the indicated punishment which would wipe her slate clean with respect to such a transgression. Finally, the Prophet informed her that the penalty for such a transgression was death, and she accepted this.
The Prophet said that the woman might be pregnant, and, therefore, she should permit the child to be born. He informed her that when the infant was born, she should return to him for purposes of carrying out the punishment.
After the child was born, the woman returned to the Prophet seeking to have the penalty enforced. The Prophet indicated that the woman should suckle the child and that when the period of suckling came to an end, she should return to him so that the indicated penalty might be exercised.
Several years later, the woman returned to the Prophet and indicated that the period of suckling the child was now complete. She wanted to proceed with the process of purification by punishment.
The woman was executed, and the Prophet led the funeral prayers. Someone objected to his leading of the prayers for such a woman, and the Prophet is reported to have said that the woman was innocent at the time of the prayers as she had been on the day she was born.
Notwithstanding the foregoing considerations, there is a very substantial difference between, on the other hand, enforcing a penalty because the recipient desires this out of his or her own free choice and, on the other hand, seeking to enforce such a penalty because one believes one has a God-given duty to impose such penalties on others independently of whether, or not, an individual agrees to become subject to an application of the principle of ‘purification by punishment’. Furthermore, today, there is no one among us who is a Prophet, nor is there anyone among us who necessarily has the God-given authority or the obligation [although there are many who have illegitimately arrogated to themselves such an authority and an obligation] to apply the punitive sanctions which are indicated in the Qur’an concerning certain transgressions involving acts of, for instance, theft, fornication, or adultery.
The timeframe when such measures were necessary or appropriate has passed. There are alternative ways of dealing with such transgressions – ways which are entirely consonant with other teachings of the Qur’an concerning the importance of forgiveness, compassion, mercy, patience, tolerance, love, humility, generosity, nobility, and the like.
Indeed, there is nothing in the Qur’an which stipulates that when one has a choice between two alternative ways of handling a situation, then one must necessarily choose the more rigorous or more punitive means of dealing with such a matter. In addition, there are a great many spiritual principles distributed throughout the Qur’an which strongly indicate that, where possible and practical, one should be inclined toward treating others with forgiveness, compassion, mercy, patience, tolerance, and generosity rather than through rigor or harshness.
The Prophet Muhammad (peace be upon him) encouraged people to take responsibility for pursuing their own form of striving with respect to the truth. He is reported to have said:
“Do not ask me questions as long as I leave you alone.” [Bukhari, i‘tisam, 2; Muslim, hajj, 411]
The Prophet was, in effect, telling people: if I leave you alone, then, you should leave me alone. In other words, if the Prophet did not give people some particular guidance or direction, then, people should not seek to bother the Prophet by asking questions about how to proceed in life or with respect to how to pursue Islam.
The Prophet Muhammad (peace be upon him) is also reported to have said that one should:
“Seek the guidance of your heart (istaftii qalbaka: ask for the fatwa), whatever opinion others may give.”
This process of seeking the guidance of one’s heart is not a matter of following whatever whims, passions, or desires that may arise in consciousness. Rather, the process of seeking the guidance of one’s heart is to exercise ijtihad – to strive for the truth of a matter by purifying oneself so that one might enter a condition – namely, taqwa – through which, God willing, one might be opened to the truth or to the hukm – that is, the governing authority or reality of something – so that one can act rightly.
By listening intently to one’s heart and asking for a fatwa – or guidance – one was seeking to hear the resonance of truth with the Words of God. Indeed, as the Qur’an indicates:
And who is better than Allah to make judgments for a people who are sure.” [Qur’an, 5:50]
In seeking the guidance of one’s heart, one is seeking Divine assistance. If one has taqwa, then, God willing, the guidance one seeks from one’s heart will reflect the truth or reality of a matter which God wishes one to understand.
Furthermore, in conjunction with this process of seeking the counsel or guidance or fatwa from one’s heart, one should be careful concerning the sort of things for which one seeks an answer. The Qur’an indicates:
“Do not ask Us about those things that, if they were shown [or declared to you] could bring you wrong [or trouble you]” [Qur’an, 5:101]
The Qur’an also stipulates:
“O Prophet, why do you declare illicit what God has made licit, simply to give satisfaction to your wives.” [Qur’an, 66:1]
One might ask another question which has resonance with the foregoing – namely, why should one be inclined to declare as illicit that which God has made licit – by remaining silent on a matter -- simply to give satisfaction to theologians, mullahs, religious scholars, and the like?
Some have proposed that a principle to keep in mind when approaching the guidance of the Qur’an is not to fill in the gaps and spaces which God has left in the Qur’an as degrees of freedom for human beings. Whatever is not specifically prohibited in the Qur’an is considered to be licit unless a compelling case from the Qur’an itself can be given which demonstrates why such degrees of freedom should not be permitted.
Through the use of qiyas or analogical reasoning, many religious scholars and theologians have sought to argue that, for example, because one thing is like something else, and since the latter may have been prohibited by God, then, the former must also be considered as prohibited. By approaching things in this manner, they have sought to introduce prohibitions where none actually existed in the Qur’an.
For example, some individuals have sought to argue that because the flesh of pigs has been prohibited to Muslims [as well as Jews and Christians] as a food, and because some footballs are made from pig skin or because some forms of suede shoes have been made from pig skin, then, one may not touch those balls or wear such shoes.
Yet, the Qur’an is silent about both matters. People are reading their own ideas into the guidance of the Qur’an.
In order to arrive at such conclusions, those individuals may have exercised ijtihad. However, by means of such reasoning and striving, they have not necessarily captured the hukm of a matter – that is, the principle which governs a particular aspect of reality.
In this respect, the Qur’an states:
“He granteth wisdom to whom He pleaseth; and he to whom wisdom is granted receiveth indeed a benefit overflowing; but none will grasp the message but men of understanding.” (2:269)
Not everyone who exercises ijtihad necessarily does so through a God-granted wisdom. And, truly, only those who have been graced with such wisdom will understand that this is so. Moreover:
“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]
Ijtihad is not the creation of something new in the way of guidance. Rather, ijtihad is a process of struggling toward trying to discover [according to one’s capacity to do so and the Grace which God bestows] the nature of the original hukm concerning the principles which already govern the truth or the reality of a matter and which are being expressed through the two books of revelation – the Qur’an and Nature (considered in its entirety).
A sincere mujtahid does not seek to make discernments except in accordance with, and as expression of, what Allah shows that individual through her or his exercise of ijtihad. As the Qur’an attests:
“True believers are only those who have faith in Allah and His messenger and have left doubt behind and who strive hard in Allah’s cause with their possessions and their lives. They are the ones who are sincere. (49: 15)
Supposedly, at least according to some religious scholars and theologians, the gates of ijtihad [striving, strenuousness] became closed after the 9th century A.D. Evidently, these individuals were of the opinion that what they referred to as Islamic law [but, in reality, this was nothing more than laws made by Muslims] had matured sufficiently enough that individual attempts to understand the limitless depths of the Qur’an and sunna had been exhausted.
The Qur’an states:
“And if all the trees in the earth were pens, and the sea, with seven more seas to help it were ink, the words of Allah could not be exhausted.” [Qur’an, 31:27]
The Prophet is reported to have said: “Truly, the Qur’an has an outward and an inward dimension, and the latter has its own inward dimension, and so on, up to seven dimensions.”
In light of the foregoing guidance of the Qur’an, as well as in light of the aforementioned understanding of the Prophet Muhammad (peace be upon him) concerning the depths of the Qur’an, I cannot think of anything more arrogant than for someone to try to claim that the doors to ijtihad were closed in the 9th or 10th century.
The truth of this matter is that certain individuals sought to close the door to ijtihad in order to establish a politically expedient compromise between two groups of individuals. On the one hand, there were the rulers who wanted the authority and legitimacy of what would be treated as established and unalterable law to be placed at their disposal so that they might exploit such law to do as they saw fit. The other party to the politically expedient compromise were from among the ulema who wanted a fiqh – that is, a mode of engaging the Qur’an and the sunna of the Prophet -- over which they would have control and which, in addition, would ensure that they had a position of status in the community where their “expertise” and authority would be sought out by others. Both sides to this compromise made a deal which would give the respective sides power, status, and control at the expense of doing justice to the either the community or the reality of Quranic guidance.
The aforementioned ulema reduced fiqh down to a set number of issues [some say these are 589 in number]. Each madhhab, or school of jurisprudence, developed its own theological positions relative to these set number of issues.
Furthermore, the leaders of these various schools issued pronouncements indicating that one would be able to switch from one school to another. In addition, and this is where the idea of closing the doors of ijtihad came in, no one was permitted to open up any of these codified positions to the exercise of ijtihad.
The true location of hukm [determinative authority] is with Allah, and the location of such a hukm does not rest with some given school of jurisprudence nor with the rational intellect considered in isolation from other spiritual faculties of the individual. When one does not know what the nature of the hukm or reality is with respect to some given matter, then, one must rely on Allah, and such true and sincere reliance requires that one ‘become like the corpse in the hands of the one who washes it’ -- that is, a true ‘abd or servant or bondsman of God – and one moves in whatever direction the Hands of God move one. This is the real essence of ijtihad.
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Why do human beings believe they have the authority or responsibility to hold other human beings accountable for what is, clearly, according to the Qur’an, obligations or duties of care which one has to God? God is the One Who has ordained such duties of care, and God is the One Who will judge such matters, and God is the One Who will hold people accountable for their deeds and misdeeds in this respect on the Day of Judgment, and God has not asked people – other than the Prophets – to assume responsibility for, or to take authority of, such matters. So, why do Muslim theologians, imams, muftis, mullahs, and leaders believe that it is their duty to police the Deen of others and make sure that it conforms to their own individual likes and dislikes?
According to some modern-day, self-proclaimed mujtahids, they represent the members of the community in the matter of determining what constitutes the nature of one’s spiritual duties of care to God. They believe that when the mujtahids of a certain school of law reach a consensus concerning some given facet of what the members of that school consider to be shari‘ah, then, from an epistemological perspective, such an agreement gives expression to an understanding that is just as certain as anything from the Qur’an or sunna. Furthermore, they believe they have the right to impose their views on others.
However, as indicated previously in this essay, there is not necessarily any evidence – other than self-invested claims – that such individuals actually have been appointed by God or the Prophet to either determine what the spiritual path should be for others or that such mujtahids have been granted the authority by either God or the Prophet to impose upon others whatever judgments at which they may arrive during the course of their deliberations concerning the Qur’an and sunna. Nor is there necessarily any evidence – other than the self-serving circularity of their own belief – that the agreements these so-called mujtahids reach should be considered to have the same level of authority or authenticity as either the Qur’an or sunna, and, in fact, there is not necessarily any evidence – other than the mutually reinforcing opinions of the parties to the agreement – that the participants have even arrived at a correct understanding of things.
Anyone who strives or struggles to ascertain the nature of shari‘ah is performing ijtihad and, therefore, is a mujtahid. Nonetheless, the fact that one is a mujtahid or is referred to as a mujtahid does not inherently compel others to accept the proclamations of such individuals as anything more than their understanding of a given issue, problem, or idea.
There are mujtahids who truly understand the nature of shari‘ah, and one would be well-advised to consider what they have to say about things and to reflect on such matters with due diligence. On the other hand, there also are mujtahids who truly do not understand the nature of shari‘ah, and one would be well-advised to stay as far away as possible from these latter sort of individuals.
The problem, of course, is one of knowing who is which kind of mujtahid. Everyone makes a choice concerning who they will listen to or go to for counsel with respect to spiritual matters, and much may be decided by the nature of one’s choice in this regard.
Choose correctly and one has, God willing, good spiritual counsel. Choose incorrectly and one has, may Allah have mercy on us, bad spiritual counsel.
For far too long, the Muslim world has been making a lot of bad choices with respect to the sort of spiritual counsel to which they have been willing to listen and to which they have opened themselves. We see the problematic ramifications of such choices almost everywhere in the Muslim world.
One of the problematic areas being alluded to above has been the insistence of all too many self-promoting mujtahids that sharia‘ah is a legal system which is to be imposed on a community. Shari‘ah is not a legal system, and it should not be imposed on anyone.
Shari‘ah is the spiritual journey of an individual who seeks to arrive at the truth concerning the nature of one’s relationship with God. Shari‘ah is the process of seeking to discover the nature of one’s essential identity. Shari‘ah gives expression to a person’s striving to realize, God willing, the full spiritual potential of fitra – one’s primordial spiritual capacity. Shari‘ah is a way to honor one’s duties of care to oneself, to others, to creation, and to God.
“And (as for) those who disbelieve, their deeds are like the mirage in a desert, which the thirsty man deems to be water until when he comes to it he finds it to be naught, and there he finds Allah, so He pays back to him his reckoning in full, and Allah is quick in reckoning.” [Qur’an, 24:39]
Human beings are inclined to search – through ijtihad -- for that which they believe will satisfy their spiritual thirst. One who searches is in a condition of unbelief because the truth or reality of things remains hidden from them at that point – that is, after all, why they are engaged in a process of seeking.
When, after striving and struggling, one comes to the understanding that everything for which one has been searching in order to satisfy one’s spiritual thirst is a mirage, then, this is the time when, God willing, the realization comes to the individual that Allah is the only One Who is capable of satisfying one’s need or longing or desire. Everything else is a mirage – including one’s reasoning and the various schools of jurisprudence.
The individual who, by the Grace of Allah, comes to such an understanding or realization finds Allah waiting for her or him, and God is ready to respond to that individual in accordance with the nature of the realization which has been reached. If one submits to the reality of one’s need for God, God is quick in reckoning concerning such a realization and guides the individual in their striving or ijtihad, but if one persists in turning away from God’s presence, then, too, God is quick in responding to such a spiritual condition and the individual is maintained in a state of disbelief.
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In the Qur’an, one reads:
“He it is Who has revealed the Book to you; some of the verses are decisive, they are the basis of the book, and others are allegorical; then in those whose hearts there is perversity, they follow the part of it which is allegorical, seeking to mislead and seeking to give it [their own] interpretation, but none knows the interpretation except Allah, and those who are firmly rooted in knowledge say: We believe in it, it is from our Lord; and none do mind except those having understanding. [Qur’an, 3:7]
In Surah 3, verse 7, one finds a slightly different wording of the same principles that are being expressed through the foregoing verse of the Qur’an:
“He [that is, God] it is Who hath revealed unto thee (Muhammad) the Scripture wherein are clear revelations -- They are the substance of the Book--and others (which are) allegorical. But those in whose hearts is doubt pursue, forsooth, that which is allegorical seeking (to cause) dissension by seeking to explain it. None knows its explanation save Allah. And those who are of sound instruction say: We believe therein; the whole is from our Lord; but only men of understanding really heed.”
Which are the decisive verses and which are the allegorical verses? Understanding and guidance come from Allah. They do not come from theologians and mullahs or books of fiqh that may be inclined to place their own interpretations onto the Qur’an.
Only Allah knows the correct determination of such matters, and the people of knowledge or understanding are the ones whom God has taken by the hand and guided them through the hazards of the spiritual journey. These people of knowledge accept all of the Qur’an as revelation, and they pursue shari‘ah so that they may be led to the water of knowledge and be permitted to drink according to God’s blessings and according to their present spiritual condition and ultimate spiritual capacity.
Shari‘ah is a way [that is, the struggle toward self-purification], and a result [namely, the truth made manifest to the individual]. Neither the way nor the result can be imposed from without as many advocates of this or that school of jurisprudence or madhhab would have Muslims believe to be true, but, rather, one must become engaged in a life-long process of ijtihad through which one strives for the manner of discernment which will permit one, God willing, to distinguish between, on the one hand, the substance and basis of the Qur’an, and, on the other hand, that which is allegorical in the Qur’an.
Both the substance and allegorical dimensions of the Qur’an constitute guidance. However, when, as a result of problematic facets in one’s process of ijtihad, one confuses the allegorical with the substance of the Qur’an, then, as God warns, one may be carried in the direction of misguidance, and, this, unfortunately, is what has happened across the last 1300 years, or so, in all too many instances with respect to various individuals and their respective schools of jurisprudence.
“And know that this is My path, the right one, therefore follow it, and follow not other ways, for they will lead you away from His way; this He has enjoined you with that you may guard against it.” [Qur’an, 6:153]
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