Some General Issues Surrounding Shari‘ah and Fiqh
As far as I have been able to determine, the Qur’an mentions the term shari‘ah just once.
In Surah 45, verse 18 one finds:
“O Prophet, We have put you on the Right Way (Shari‘ah) concerning the religion, so follow it, and do not yield to the desires of ignorant people;”
In Arabic, the noun shari‘ah refers to a place where animals would come for purposes of being able to drink water. The related verb shar’a involves the act of ‘taking a drink’. By extension, both the noun and the verb forms allude to a path, road or way which leads to the place where one may take a drink.
There is another word, shari’, which is derived from the same root as the two previous words. This word refers to a lawgiver, legislator, or one who determines the law, but it also can refer to a street, path, or way.
If one combines the foregoing possibilities, one arrives at something along the following lines. Shari‘ah is a way, path, or road which leads to a place at which one may drink that which has come from the One who has established the principles governing the individual, the way, the journey along the way, the process of drinking, and what awaits the individual at journey’s end.
A lawgiver need not be one who passes legal injunctions. A lawgiver might be the one who organizes a situation so that it operates according to the possibilities which have been built into a given situation. As such, a lawgiver is one who establishes the degrees of freedom within which such a set of circumstances may unfold over time.
Gravity, electromagnetism, the weak force, and the strong force establish the degrees of freedom which appear to be involved in the way the physical world is manifested under a variety of circumstances. The regularities to which these four physical forces give expression are described in terms of laws, but these are laws concerning the nature of the ordered character of the physical realm … they are not legal injunctions.
One needs to take such regularities into consideration when seeking to pursue various possibilities, but each of the forces contains degrees of freedom which permit people to engage them in various ways. Scientists probe what is possible in this sense, and new technologies often emerge from such exploration – technologies which seek to take advantage of the properties and qualities of such regularities – hopefully, for purposes that are to the benefit of all humankind.
The same is true in the realm of spirituality. There are a variety of non-physical forces which act on, and through, human beings. These forces give expression to an array of regularities and degrees of freedom which permeate and envelop lived, spiritual existence.
Shari‘ah is a process of probing what is possible within the spiritual realm in order to be able to discover that which may assist an individual to come to an understanding of the properties and qualities to which the realm of spirituality gives expression and which might be utilized for human benefit. Just as scientific explorations of the physical world may, God willing, lead to many ways -- within certain limits -- for engaging physical regularities, so, too, a rigorous exploration of the spiritual world may lead to many ways – within certain limits – for engaging spiritual regularities and from which, God willing, human beings may derive benefit.
Some individuals distinguish two realms when it comes to the order of the created universe. On the one hand, there is that which is encompassed by what is referred to as: amr takwini -- which alludes to the manner in which truth or reality is given expression through the realm of existent things. In this realm, the truth and reality of what is cannot be other than what it is.
When God says:
“I have not created human beings nor jinn except that they may worship Me.” [Qur’an, 51:56-57],
this is an expression of the truth and reality of one of the dimensions of existence to which amr takwini gives expression. As such, this truth remains a reality irrespective of whether, or not, human beings and jinn seek to realize their God-given potential to worship Divinity.
Another expression of the truth or reality of amr takwini is alluded to in the following ayat of the Qur’an. “The seven heavens and the earth and all that is therein praise God and there is nothing that does not glorify God in praise, but you do not understand its manner of praise.” [Qur’an, 17:44]
All of created reality glorifies God, and this remains so irrespective of whether, or not, we are aware of this or understand that such is the case.
In fact, the whole of the Qur’an is an expression of amr takwini. Indeed, “Allah speaks the truth and guides to the way.” [Qur’an, 33:4], and the way to which Allah guides those who are fortunate enough to be open to this process is that which leads to realizing the truth which is manifested through the Words which God has spoken in the form of Divine books of revelation, such as the Qur’an, or in the form of the essential realities of created existence.
The realm of amr takwini cannot be other than it is. “The Words of God do not change [la tabdila fi kalimati Llah]” [Qur’an, 10:64]
In contrast to amr takwini, there is another Arabic term which is used by some commentators, and this is known as amr taklifi. This involves the normative realm of things, and, in fact, this realm gives expression to the manner in which people choose to acknowledge or accept the truth and realities of amr takwini, or that realm gives expression to the manner in which people choose to reject – in part or whole -- the truths and realities of amr takwini.
Shari‘ah is an expression of amr takwini which has the capacity, God willing, to guide individuals in relation to the problems of spiritual navigation which characterize the realm of amr taklifi. However, having said this, one should not suppose that shari‘ah is incumbent on anyone or that anyone can be compelled to submit to shari‘ah.
There is no path to the truth except through truth. As such, shari‘ah is a methodological set of truths which are capable, if God wishes, of leading an individual to the realization of the larger Truth of which shari‘ah – in its sense as a path or way -- is but one expression.
The aforementioned set of truths cannot be reduced down to any one way of approaching the truth. At the same time, the degrees of freedom which are inherent in the nature of shari‘ah are all in compliance with the Quranic guidance which stipulates:
“Go into the houses by their doors and be careful with respect to Allah, that you may be successful.” [Qur’an, 2:189]
To whatever extent an individual is able, by the Grace of Allah, to discover, adhere to, and apply the realities inherent in shari‘ah, then, to that extent is such an individual able to struggle toward realizing the truths of amr takwini. To whatever extent an individual chooses to reject and/or not apply the realities inherent in shari‘ah, then, to that extent will the person be kept distant, if God so wishes, from the truths and realities of amr takwini.
Some people tend to confuse the unalterable nature of the truths inherent in the methodology of shari‘ah with the realm in which choices are made and proceed to try to argue that one is under compulsion to follow a given path of shari‘ah. When this sort of confusion occurs, people are conflating the unalterable character of shari‘ah – which is an expression of amr takwini -- with the spiritual tasks and challenges of the normative realm – which is an expression of amr taklifi – and, thereby, such people are seeking to claim that normative issues are of an unalterable and mandatory nature, as well – which is why they seek to make shari‘ah compulsory.
The compulsory force which is being read into the imperative mood in certain ayats of the Qur’an often are confusing the metaphysical realities which are being alluded to through such ayats with the issue of normative choice with which God has endowed to all human beings. In other words, the Divine ordering or determining of the Created universe gives expression to the ontological order of things and cannot be other than it is [it has been ordained as such … it is the truth of things], and this remains so irrespective of what human beings do or say. Nevertheless, human beings are entirely free to acknowledge, or to not acknowledge, such truths and realities.
When God says that the nature of some aspect of Created existence is such and such, then, human beings are being told something about the nature of amr takwini which is entirely independent of our understanding concerning such things. When God encourages or warns or urges or seeks to persuade human beings to pay attention to such realities, this is not an order, but, rather, this gives expression to guidance concerning a path which, if God wishes, may carry one to understanding the way things are.
There is a difference between a Divine decree or determination or order which gives expression to the truth of reality – i.e., what reality is irrespective of what humans say or do – and a Divine encouragement/urging to do that which is in one’s best interests but which can still be resisted by a human being. The latter is a normative issue, and, therefore, it is not compulsory [i.e., it is a matter of choice], whereas the former is metaphysical and sufficient no matter what human beings may think, say, or do about the way reality is.
A person does not have to believe in gravity in order for gravity to govern what that person can and cannot do. This will remain so irrespective of whether, or not, the individual likes this aspect of the way things are and irrespective of whether, or not, the individual accepts the idea of gravity as being an expression of the truth of things.
Recognizing that shari‘ah is the way to truth because it is an expression of the truth is one thing. Claiming that, therefore, people can and should be compelled to obey shari‘ah is an entirely different matter and, as indicated previously, confuses the ontological realm with the normative realm.
All sin is a dysfunctional expression of the normative realm – that is, the choices we make -- concerning our engagement of the ontological realm – that is, the way things are. Sin interferes with the process of working toward, or realizing, or coming to an understanding of the reality of things. Sin is problematic because of the manner in which it distorts, biases, and camouflages the nature of truth, and the path to truth, and our grasp of the truth.
“Evil is the likeness of the people who reject Our communications and are unjust to their own souls.” [Qur’an 7:177]
The communications being referred to in the foregoing ayat are not just the Divine revelations which have been sent to humankind. The communications being referred to allude to whatever words of God that may be issued through the command of “Kun” – that is, be or become – to which the Created universe gives expression.
Sin is a transgression against the Sacred Order of the Created universe in a manner which is similar to instances in which violations of the law of gravity constitute transgressions against the Sacred Order of the Created Universe. There are boundaries of transgression which have been set up as the natural order of things, and if one crosses those boundaries, then, there are problematic ramifications arising out of such transgressions.
When one fails to observe the boundaries of transgression associated with gravity, then, problematic ramifications of a physical nature arise. When one fails to observe the boundaries of transgression associated with human potential and identity, then, problematic ramifications of a moral, spiritual, and epistemological nature arise as we become deaf, dumb and blind to the truth of things.
Sin is whatever gets in the way of our understanding the true reality of Being. Sin is whatever gets in the way of our ability to access certain dimensions of truth. Sin is whatever gets in the way of our doing justice to creation (including ourselves), and sin is whatever gets in the way of our doing proper service to the purpose of Creation.
Sin leaves its imprint and influence upon us, just as ignoring the law of gravity can leave its imprint and influence upon us. Ignoring these physical and spiritual principles can lead to deadly consequences.
Sin affects our capacity to understand truth or to realize our spiritual potential and our essential identity, or to develop the stations of character which all serve as supports to the basic struggle and striving to grasp the truth of things … to grasp the sacred order and principles of the Universe. This is the Sacred Law toward which the Qur’an is seeking to draw our attention.
Only about 500 [600 according to some scholars] of the 6,219 verses of the Qur’an have what is said to be a ‘legal’ element to them. Most of these 500-600 verses involve various aspects of different rituals of worship -- involving wuzu, prayer and times of prayer, zakat, Hajj, fasting, and dietary restrictions. When one subtracts these ayats involving guidance concerning rituals of worship from the aforementioned set of 500-600 verses, one is left with approximately 80 verses which involve other issues such as: contracts, marriage, divorce, inheritance, the giving of testimony, adultery, fornication, the use of alcohol, and forms of punishment.
If we leave aside the vast majority of the aforementioned 500-600 Quranic verses that concern rituals of worship and just focus on the 80, or so, verses which involve matters other than the basic pillars of Islam, one needs to ask several fundamental questions. For example, what evidence is there in the Qur’an which demonstrates that the 80 verses in question must take priority over the many other forms of spiritual guidance which are given in the Qur’an? Or, approached from a slightly different direction, what evidence is there in the Qur’an that any of these 80 verses cannot be modulated in various ways as a function of applying the many verses of the Qur’an – which are far more than 80 in number -- that deal with matters of: love, forgiveness, patience, humility, nobility, kindness, generosity, compassion, tolerance, sincerity, respect for others, peace, harmony, wisdom, reconciliation, gratitude, and the like? Or, approached from a still different juncture, what evidence is there in the Qur’an which demonstrates that many of the specific indications being expressed through the 80 verses in question were necessarily intended for all people, in all circumstances, across all times rather than constituting specific guidance for the people who lived in the time of the Prophet?
When God addresses people in the Qur’an with phrases such as: “O ye who believe”, how do we know what the referent of “ye” is? Does it refer to just the believers in the times of the Prophet, or does it refer to all believers in all times and circumstances, and how does one know which is the case?
Moreover, given the physical absence of the Prophet Muhammad (peace be upon him) in today’s world, even if one were to know which of the foregoing possibilities is true, does anyone today really have the spiritual authority to impose such directives on other human beings? How does one go about demonstrating the grounds of such alleged authority?
The spiritual authority of the Prophet in such matters is one thing. The spiritual authority of non-Prophets in such matters may be quite another issue – in fact, with respect to the latter sort of scenario, such authority may be non-existent.
Or, let’s ask another question. If one wishes to treat the aforementioned 80 verses as legal injunctions which are to be forcibly imposed on human beings, then, why should one not treat as legal injunctions -- which also should be forcibly imposed upon people -- all of the Quranic directives concerning patience, love, forgiveness, tolerance, gratitude, humility, and so on? In other words, even if, for purposes of discussion, one were to entertain the idea that there might be aspects of Deen which people are to be forcibly compelled to obey – something which I believe the Qur’an clearly prohibits – why are only certain dimensions of Quranic guidance to be compulsory?
The Qur’an gives great emphasis to the importance of developing qualities of character. In fact, the Qur’an gives far more attention to the issue of character than it directs toward matters of theft, adultery, and drunkenness.
So, should one be every bit as punitive with respect to people’s failure to display qualities of, for example, kindness, love, gratitude, humility, forgiveness, and tolerance in the same manner as many aspects of the Muslim community wish to do with respect to moral failings which lead to drunkenness, adultery, or theft? And, if not, then, why not -- given that the entire Qur’an gives expression to guidance?
Unfortunately, I suspect there are all too many individuals in all too many Muslim communities who might find such an approach to things very enticing so that not only would one, for instance, be able to beat men if they don’t have a beard – even though nowhere in the Qur’an is such guidance given – but such a perspective might also lead to punishing people, in some way, for not pursuing Islam in accordance with the manner in which such self-appointed experts believed that others should behave.
If someone is not kind enough, then beat them. If someone is not tolerant enough, then give them 50 lashes. If someone is not forgiving enough, then stone them.
Of course, one may want to be careful about that for which one wishes. After all, if one pursued the foregoing form of logic, then, one might have to beat the beaters because they were not being sufficiently kind. One might also have to consider giving 50 lashes to the ones administering the lashes because they were not sufficiently tolerant toward the ones they were lashing. Moreover, one might have to think about stoning the stoners because they were not being sufficiently forgiving of the ones whom they were stoning.
If someone wears fingernail polish or lipstick, or if someone does not wear hijab, then, many theologian, religious scholars, and mullahs want to punish such people. Yet, nowhere in the Qur’an does one find any authority or justification – other than that which is invented and, then, imposed onto a Qur’an which is silent concerning these matters -- to punish people in such a fashion with respect to these kinds of issues.
One should not construe the questions being raised in the foregoing as being tantamount to advocating some form of libertine approach to society in which people are to be free, with impunity, to be able to do whatever they like. Rather, the questions which are being raised have to do with the very complex problem of what are the permissible ways, or degrees of freedom, through which one might engage the guidance of the Qur’an.
What degrees of freedom does the Qur’an permit? Who gets to decide this, and what is the justification for doing things in one way rather than another?
What is entailed by the issue of Deen and what is entailed by the regulation of public space or the commons? Are the two necessarily the same? Is shari‘ah primarily a matter of Deen, or is shari‘ah intended to regulate public space so that everyone must go about the pursuit of shari‘ah in precisely the same way?
Do matters such as theft, adultery, and abuse of alcohol carry problematic ramifications for society? Yes, they do.
Does the Qur’an specify what may be done in conjunction with such behavior? Yes, in the case of theft and adultery but not in the case of alcohol consumption.
Is one obligated to follow the specific punishments which are indicated in the Qur’an for theft and adultery? Not necessarily, since there may be other approaches to such issues which could be developed using principles of guidance that not only are communicated through the Qur’an but which tend to permeate the vast majority of Quranic teachings.
During his lifetime, the Prophet observed certain principles and made certain kinds of judgment in relation to the guidance communicated through the Qur’an. However, do we necessarily know that if the Prophet were physically amongst us today that he would continue to do things in precisely the same way as was done more than 1400 years ago, or would the Prophet – due to changes in circumstances, conditions, capacities, peoples, and times – choose to give expression to the guidance of the Qur’an through different ways of seeking to resolve issues?
The Prophet was given authority by God to judge various occurrences and events which took place in the surrounding community if he were called upon to do so.
“Surely we have revealed the Book to you with the truth that you might discern between people by means of that which Allah has taught you [or has you see] and be not an advocate on behalf of the treacherous.” [Qur’an, 4:105]
However, one is making a rather substantial inferential jump to suppose that such authority has been delegated to anyone in the Muslim communities of today.
Furthermore, people may be confusing two different issues. On the one hand, the Prophet has a role which, among other things, involved communicating and explicating the nature of shari‘ah. On the other hand, the Prophet had a role which involved certain responsibilities – including the authorization of punishment -- concerning the regulation of public space in a particular set of historical circumstances.
The latter responsibilities – that is, the regulation of public space -- do not necessarily have anything to do with the former responsibilities – that is, the delineation of shari‘ah. Yet, many people assume that the regulation of public space and the pursuit of shari‘ah are one and the same or that the regulation of public space is but a subset of, or entailed by, shari‘ah.
I do not believe the regulation of public space is an expression of shari‘ah. I do not believe that the regulation of public space is a subset of shari‘ah.
By pursuing shari‘ah in a sincere fashion, one may, if God wishes, develop the sort of character traits – such as honesty, patience, forbearance, kindness, integrity, compassion, and so on – as well as spiritual understandings which may enhance the quality of what transpires in public space and could constructively shape what occurs in that public space or commons. However, the regulation of public space is tied to Divine guidance in a totally different way than the manner in which shari‘ah is tied to Divine guidance [and there will be more said on this issue in the last section of this essay.]
One should not infer from the foregoing that what is being proposed here is that nothing should be done when problems and conflicts arise in the public space. Instead, what is being suggested is that there are serious questions surrounding the claim of any person in today’s world which indicates that he or she has been delegated the authority – either by God or the Prophet – with respect to the imposition of certain kinds of punishments in relation to various kinds of problematic behavior.
Why roughly 80 Quranic verses have come to totally dominate, color, and orient the understanding of so many Muslims with respect to how one should engage and approach the totality of Quranic guidance concerning the regulation of public space is an interesting question. There are likely to be many forces – historical, cultural, social, gender-related, philosophical, theological, and political – that are at work and which have helped to bring about the present state of affairs.
Unfortunately, the bottom line in all of this is that shari‘ah has been made into a public issue when, in fact, it is a private matter. Spirituality has all too frequently been subordinated to systems of theology, power struggles, and what can only be described as a pathological desire to control and, thereby, oppress, the lives of other human beings. With only a few exceptions -- limited mostly to the Prophets and, possibly, a few others -- there ought not to be any system of leadership which seeks to have influence over, or to make impositions upon, the spiritual lives of human beings.
In fact, the prophets, themselves, did not seek to control the spiritual lives of anyone. Instead, they gave the good news, and they conveyed the warnings:
“And We do not send emissaries but as announcers of good news and givers of warning, then whoever believes and acts aright, they shall have no fear, nor shall they grieve.” [Qur’an, 6:48]
Guidance is not a set of legal injunctions which must be obeyed. Guidance is not a demand for obedience but is an attempt to draw one’s attention to a path which travels through, toward, and by means of truth, justice, identity and purpose.
Spirituality has become legalized in the sense that it has been reduced to being a function of legal dogmas and rules which tend to oppress spirituality rather than serve as a means of realizing and unleashing the rich potential of spirituality. Spirituality has been made a matter of obedience when, in truth, spirituality is entirely at the opposite end of the spectrum from matters of obedience.
Spirituality is about honoring – through realizing and fulfilling – the amana or trust which has been bequeathed to human beings. Spirituality is not intended to be a process through which one cedes one’s moral or intellectual authority to others.
Spirituality is about coming to understand what it means to be a servant of God. Spirituality is about becoming one who creatively serves the responsibilities of being God’s Khalifa on earth and, by doing so, gives expression to worship in everything one does.
It is not possible to realize the amana or trust through obedience to authority. Doing things in accordance with obedience to authority removes the active and dynamic element of personal responsibility, commitment, and on-going intellectual and moral choice which is necessary for the struggle entailed by spirituality.
The intention with which one pursues spirituality should not be to satisfy authority, qua authority, but should be directed toward seeking, according to one’s capacity to do so, the truth concerning oneself and one’s relationship with Being and to do justice in accordance with that truth. The inclination to obedience, qua obedience, is an expression of a person’s desire to get out from underneath the burden of having to constantly be engaged in the spiritual journey in which one travels, God willing, from: what is less true and less just, to: what is more true and more just.
Sincere spirituality requires one to stand alone before God and strive to affirm [through understanding and action] the nature of one’s relationship with God – ‘Am I not your Lord?’ – in every facet of life. This affirmation is not done out of, or through, obedience but is, rather, an expression of one’s understanding concerning the way things are with respect to the natural order of the Created universe and one’s place in that universe.
In the Qur’an, one finds the following:
“No soul can believe except by the Will of Allah, and He will place doubt/obscurity on those who will not understand. (Qur’an, 10:100)
According to one sense of the foregoing Quranic ayat, those who choose to not believe in the truth will have doubt or obscurity placed upon them. This is one of the possible consequences which may follow from such a choice … but God knows best.
However, one might also want to give some consideration to another possible sense which may resonate with the foregoing verse of the Qur’an. More specifically, if one fails to understand that “no soul can believe except by the Will of Allah” and, as a result, one seeks to compel people to believe in, and conform to, a certain theological or religious perspective, then, one runs the risk that doubt and obscurity about many matters concerning spirituality may be placed on the one who insists on compelling the obedience of others concerning matters of Deen.
Understanding shari‘ah is rooted in direct knowledge. Understanding is not rooted in the imposition of external directives.
As the saying goes – ‘to those who understand, no explanation is necessary, and for those without understanding, no explanation will suffice.’ One can allude to the nature of shari‘ah, but the only proper way to understand this sacred realm is through direct experience … to have God take one by the hand and lead one to the place where one may drink, God willing, from the waters of Truth.
“So, they found one of our abds [abdan min ibadina] on whom We had bestowed a Mercy from Us, and We taught him knowledge from Our presence [ladunna]” [Qur’an, [18:65]
The hukm – that is, the governing authority and principles or reality – of shari‘ah is with Allah. The hukm of shari‘ah does not reside with aql or intellect or the manner in which the public sphere is regulated.
In fact, the way in which the public space is regulated could be totally corrupt or oppressive or embroiled in turmoil. Nevertheless, none of what goes on in the public space can prevent an individual, God willing, from pursuing and, if God wishes, even realizing the truth of shari‘ah – although, certainly, what takes place in the public space can place difficulties and obstacles in the way of the person who wishes to seek the hukm of shari‘ah.
What goes on in the realm of public space can problematically or constructively affect an individual’s pursuit of shari‘ah, and, in addition, the extent to which an individual sincerely pursues shari‘ah can constructively or problematically affect what goes on in the public space. However, the pursuit of shari‘ah entails activities which are entirely independent of the sort of activities which are entailed by the regulation of public space.
Divine guidance provides insights concerning both the activities of shari‘ah as well as the activities of regulating public space. Moreover, there are degrees of freedom inherent in the Divine guidance which permit both shari‘ah and the regulating of public space to be approached and engaged in a variety of ways even as certain principles are kept constant.
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