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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Showing posts with label adultery. Show all posts
Showing posts with label adultery. Show all posts
Monday, August 18, 2008
Shari'ah: A Muslim's Declaration of Independence - Part 10
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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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.
******************
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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