Introduction
In order to pre-empt, to some extent, some of the concerns which might arise in conjunction with the main focus of this essay concerning Sacred Law and shari‘ah, a few things need to be said in order to try to place things in an appropriate perspective before proceeding with the commentary proper. I am a Muslim, I love Islam, and I strive -- although God knows best with what degree of success -- to wholly submit myself to God because I accept as true that God: "created humankind and jinn only to worship" [Qur'an, 51:56] God.
I bear witness that God is one and that Muhammad is the Messenger of God. I make efforts to observe my prayers on a daily basis. I participate in the fast of Ramazan. I give zakat in accordance with my circumstances. I have, by the Grace of Allah, performed the rites of Hajj. In addition, I have faith that God is one and that Muhammad is the Messenger of God. I also have faith in the reality of angels, and I have faith in all the Books of revelation which have been sent to various messengers of Allah, and I have faith in the lineage of prophets who came prior to the appearance of the Seal of the Prophets, Muhammad (peace be upon him). I also have faith that there is a Day of Judgment during which most of us will be held accountable for our deeds and misdeeds, and, as well, I have faith that God is the sole determiner of good and evil.
I believe in Sacred Law and shari‘ah, but I do not approach these issues in a manner that is consonant with many traditional modes of engaging such matters. The fact that I do not share the belief of certain others concerning the nature of Sacred Law and shari‘ah does not make me – or those with whom I have differences on this subject -- an unbeliever, but rather this merely means that I have an alternative method for engaging the themes which are entailed by Sacred Law and shari‘ah.
For approximately 35 years, by the Grace of God, I have sought to serve the Muslim community in my own way and according to whatever abilities and opportunities God has given me. What I am seeking to do in the present essay, God willing, is to continue to serve the Muslim community, although I am sure that there will be those who will choose not to see things in this light.
I am not asking others to necessarily accept the perspective which is about to be put forth. Rather, I only ask people to reflect on what is being said and to strive for the truth of whatever issues may be raised through the following considerations.
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A Brief Overview
I will begin by providing a set of brief overview statements concerning the themes that are to be explored in this essay. These are summary statements of the perspective which will be delineated, God willing, during the course of the essay which follows, but the order of appearance of these statements does not necessarily reflect the sequence in which issues will be engaged through the main body of the essay.
(1) The ways in which Sacred Law and shari‘ah are understood by many Muslims, in general, as well as by a variety of Muslim religious scholars, in particular, are often problematic, if not incorrect, in a number of respects;
(2) Sacred Law gives expression to the principles, realities, and truths [physical, spiritual, psychological, etc.] through which the Created Universe operates;
(3) Shari‘ah refers to the individual’s realization of that portion of Sacred Law which enables an individual to grasp truths, as God wishes, concerning one’s essential identity and spiritual capacity that, God willing, lead to the fulfillment of an array of rights concerning all manner of being – including those rights which are inherent in the individual himself or herself … and this is what is meant by the idea of being God’s vicegerent or khalifa on Earth;
(4) To the degree that shari‘ah is correctly understood and applied, it becomes a manifestation of Sacred Law;
(5) The journey toward shari‘ah is an individual pursuit, not a collective one – although the degree to which shari‘ah is properly realized may have ramifications for the social collective, and, as well, the manner in which the social collective is organized may have ramifications for the way in which shari‘ah is understood and/or pursued;
(6) While the Qur’an and the sunna of the Prophet Muhammad (peace be upon him) constitute the two most essential primary resources through which to engage and understand the nature of Islam, many of the customary ways of describing just what is entailed by this process are problematic, if not incorrect;
(7) Qiyas [analogical and rationalistic reasoning processes] tends to have a distorting and therefore, misleading way of construing the teachings of the Qur’an;
(8) The issue of ijma – consensus – is generally misunderstood and misapplied with respect to the issue of shari‘ah;
(9) Using naksh or abrogation as a methodology for engaging the meaning of the Qur’an is – in relation to the manner in which this concept is generally understood by many Muslim religious scholars – untenable;
(10) The idea of ijtihad – that is, striving to secure a spiritual determination or judgment in a given set of circumstances – is improperly understood as well as improperly used by many Muslim religious scholars;
(11) The five major madhhabs or schools of jurisprudence do not exhaust the ways through which one may legitimately engage Islam, and, moreover, none of these schools – or any other such school – may be used to compel people to behave in particular ways when it comes to matters of shari‘ah; moreover, no one is under any obligation to align herself or himself with any given school of jurisprudence, or, stated in another way, the various schools of Muslim jurisprudence do not necessarily have the requisite spiritual authority to impose judgments on others that are binding;
(12) One of the primary purposes underlying governance is not to enforce shari‘ah but, rather, one of the essential purposes of governance is to ensure that a community – or, more specifically, the public space or commons of that community -- is free from oppression of any kind [including religious] so that people will have an unhindered opportunity to engage the gift of choice which God has bequeathed to them -- providing such an exercise of free will does not interfere with a like gift which also has been bequeathed to others;
(13) Two of the other primary tasks of government are to establish principles of equitability and justice to help prevent the injury, exploitation, and abuse of the members of a community by forces from within or from without that community – and this includes a responsibility to ensure that spiritual abuse will not be permitted to be perpetrated through the political imposition of religious theories of jurisprudence;
(14) The specific guidance given expression in the Qur’an concerning issues like punishment, fighting, and even such matters as inheritance, are subsumable under, and capable of being modulated by, other principles of general guidance given in the Qur’an, and, in addition, such specific injunctions may not have been intended as a form of universal guidance – that is, for all peoples, all times, and all circumstances – but, instead may have been intended to guide a specific group of people during, and shortly after, the period during which the Prophet lived;
(15) None of the foregoing fourteen statements undermines, removes, or alters the basic duties of care one has to oneself, others, creation, or God that are being taught through the Qur’an and for which sharia‘ah is intended as a spiritual journey of striving to understand and apply the truth of such issues during the course of one’s life.
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The Issue of Ijtihad
Mu‘adh ibn Jabal was dispatched by the Prophet to govern Yemen. Before ibn Jabal left for Yemen, the Prophet asked him about the nature of the method through which ibn Jabal would govern. Ibn Jabal replied: ‘In accordance with God’s Book.’ Ibn Jabal was then asked by the Prophet that if the former could not find what he needed in God’s Book, how would ibn Jabal proceed. Ibn Jabal responded with: ‘Then, according to the sunna of God’s Prophet.’ The Prophet then asked what ibn Jabal would do if the latter could not find what he requires in the sunna of the Prophet. Ibn Jabal replied that he would exercise ijtihad.” The Messenger of God indicated that he was happy with the answers which ibn Jabal had given to each of the Prophet’s queries.
Some people have tried to construe the meaning of ijtihad as involving legal reasoning in some form. However, ijtihad – which comes from the same root as ‘jihad’ – refers to a process of personal striving or struggling to assert the truth of a matter.
The Qur’an says:
And strive hard in the way of Allah, such a striving as is due to Him;” [Qur’an, 22:78]
All of life requires one to exercise ijtihad. All of life requires one to strive for the truth.
Among other things, God has given each of us a capacity for seeking truth. To use such a capacity for anything other than striving for the truth is to strive in a manner which is less than what is due to God.
Reason might be one tool entailed by such an exercise. Nonetheless, there are other faculties and capabilities within the individual [e.g., heart, sirr, kafi, spirit] which also may be employed during the process of ijtihad.
Furthermore, whatever the nature of the faculties and methods which may be employed during the process of ijtihad, one is not necessarily seeking a legally enforceable solution to the question, issue, or problem at hand through such a process. This is especially so with respect to matters of shari‘ah -- which is an individual, spiritual task and not something which should be imposed collectively or through compulsion.
To govern is to oversee the regulation of public space so that that space is free of oppression, injustice, and tumult. Governance is not about the enforcement of shari‘ah, but, rather, governance is about the regulating of the ‘commons’, so to speak, so that individuals are free to pursue, or not, the issue of shari‘ah.
Presumably, if ibn Jabal was looking to the Qur’an, the sunna, and the exercise of ijtihad in order to find solutions to problems of governance, one should not necessarily assume that he was trying to discover various facets of shari‘ah which could be imposed on people. Rather, ibn Jabal may have been trying to discover those principles of justice, equitability, tolerance, truth, wisdom, and so on which will permit a community to exist in relative peace and harmony, free from oppression, so that the members of that community might individually tend to the responsibilities which revolve about and permeate the issue of free will in a manner which does not oppress others. As the Qur’an indicates:
“O ye who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people incite or seduce you to not act equitably; act equitably, that is nearer to piety (taqwa) , and be careful with respect to Allah, surely Allah is aware of what you do.” [Qur’an, 5:8]
Ibn Jabal (may Allah be pleased with him) was seeking to be “upright for Allah”. He was seeking to be one of the “bearers of witness with justice”. He was seeking to “act equitably”. He was seeking to struggle toward a condition of taqwa. He was seeking to “be careful with respect to Allah”.
Notwithstanding the foregoing considerations, and without prejudice to either the Prophet Muhammad (peace be upon him) or ibn Jabal (may Allah be pleased with him), there is a great deal of ambiguity in the interchange between the two as related in the foregoing Hadith. For example, one might ask: What does it mean to find what one needs in the Qur’an? Or, what is meant by the idea of finding what one seeks in the sunna of the Prophet? What is actually entailed by the process of exercising ijtihad?
There is no one answer which can be given to any of the foregoing questions. Much depends on the spiritual capabilities and condition of the individual doing the needing, seeking, and striving in relation to, respectively, the Qur’an, the sunna, and ijtihad. Much also depends on the nature of the problem which one is attempting to resolve or the kind of question one is trying to answer.
The truth of the matter is that many people read about the account involving the Prophet Muhammad (peace be upon him) and ibn Jabal (may Allah be pleased with him), and such individuals tend to impose their own ideas onto the exchange. For example, because ibn Jabal was being sent off to Yeman to govern, there are those who suppose that the practice of ijtihad can only be performed by someone who has been given the authority to govern. Then, again, there are others who understand the interchange between the Prophet and ibn Jabal to mean that only someone who has been given the authority to make legal pronouncements is permitted to exercise ijtihad, and, then, such commentators often proceed to put forth a list of qualifications which such a person must have in order to be permitted to exercise ‘legitimate’ ijtihad.
There is an underlying logic inherent in the perspective of those who seek to restrict ijtihad to only certain kinds of individuals with certain kinds of qualifications. The nature of that logic goes somewhat along the following lines: The Prophet Muhammad (peace be upon him) was sending ibn Jabal (may Allah be pleased with him) to govern the people of Yemen; the Prophet was only showing approval concerning the exercise of ijtihad in the case of someone whom he had authorized to fulfill a specific task of governance; therefore, the Prophet would only approve ijtihad in someone whom he had authorized to accept such a responsibility.
The foregoing kind of logic is nothing more than presumptions which are being read into the conversation in question. In point of fact, there is nothing in the interchange between the Prophet Muhammad (peace be upon him) and ibn Jabal (may Allah be pleased with him) to which one can point that authoritatively and decisively demonstrates the necessity of concluding that only people who govern or only people who promulgate laws or only those with specific qualifications have the right to exercise ijtihad.
Above and beyond the foregoing sorts of difficulties, there are two other kinds of presumption inherent in the sort of logic which seeks to place limits on those who might exercise ijtihad. On the one hand, there is a presumption that those who exercise ijtihad today -- and, therefore, those who are referred to as mujtahids -- have been authorized by the Prophet to do so, and this is, at best, a very dubious presumption. On the other hand, there is another presumption present in the foregoing sort of logic which arrogates to itself the right to forcibly impose upon others the “fruits” from someone’s exercise of ijtihad which is, once again and at best, an extremely dubious presumption.
We are each governors of our own being. We each have been given the capacity to consult the Qur’an, the sunna, and, when appropriate, to exercise ijtihad as we strive to find our way to truth, justice, essential identity, and our primordial spiritual capacity.
In fact, one might argue that every engagement of the Qur’an and sunna is an exercise of ijtihad. Each individual strives and struggles to purify herself or himself in order that one may be led, God willing, to a spiritual condition which allows one to drink in what is necessary to have ears with which to hear and eyes with which to see the true nature of what God is disclosing to us through the Qur’an and the example of the Prophet.
Having said the foregoing, one should not suppose I believe there are no differences in the quality, depth, insight, wisdom, balance, or appropriateness as one moves from one exercise of ijtihad to the next exercise of ijtihad among different individuals. The Qur’an states:
“Are they equal – those who know and those who do not know? Only those of understanding are mindful.” [Qur’an, 39:9]
In this regard, there are some mujtahids who truly do know what they are talking about with respect to matters of shari‘ah, truth, and justice, just as there are all too many mujtahids who do not know what they are talking about when it comes to matters of shari‘ah, truth, and justice. Nevertheless, whether someone who engages in ijtihad knows what he or she is doing, or whether someone who engages in ijtihad does not know what she or he is doing, neither individual has the right nor authority to forcibly impose their understanding upon others when it comes to matters of shari‘ah.
If one wishes to think of shari‘ah as Divine Law, then, as previously indicated, one should understand the idea of law in such a context as being an expression of the way the universe spiritually operates rather than as being an expression of a legal system. No one has to impose the law of gravity on anyone since most of us become aware of the existence and nature of gravity through life experience, and, as a result, we begin to factor in our understanding of this law of nature with respect to our daily lives concerning what may be practical and what may be problematic when it comes to matters which are affected or influenced by the force of gravity.
When one runs afoul of the law of gravity, one is not being punished for a legal transgression. Rather, one is suffering the consequences of failing to exercise due diligence in one’s life with respect to the law of gravity.
Similarly, when one runs afoul of the principles inherent in shari‘ah, and, then, if things begin to become problematic in one’s life as a result of such transgressions, one is not being punished. Instead, as is the case in relation to the law of gravity, by failing to exercise due diligence with respect to shari‘ah, problematic ramifications may begin to become manifest in one’s life. This is just the way the universe is set up to operate unless God intervenes and interrupts the normal sequence of events.
The truth of the matter is – and as the Qur’an has indicated in a number of verses – difficulty, problems and trials come into the lives of everyone – whether they are believers or non-believers. Thus, the Qur’an notes:
“And we test you by evil and by good by way of trial.” [21:35]
Or, again:
“Do they not see that they are tried once or twice in every year, yet they do not turn nor do they take heed.” [9:126]
And, finally:
“And surely We shall test you with some fear and hunger and loss of wealth and lives and crops;” [Qur’an, 2:155]
Pursuing shari‘ah in a sincere fashion can assist one to cope with such problems, and when one turns away from that spiritual journey, one is actually placing oneself at a disadvantage when it comes to dealing with the rain which must fall into the life of everyone, and this is another natural law of the universe. Indeed, the following Quranic ayat alludes to those who properly understand this natural laws of the universe:
“But give glad tidings to the steadfast – who say when misfortune strikes them: Surely, to Allah we belong and to Allah is our returning.” [Qur’an, 2:156]
Furthermore, just as no one has to impose a penalty beyond what happens naturally when one transgresses the due limits of the force of gravity, so, too, with certain exceptions (to be noted shortly) no one has to impose a penalty beyond what happens naturally when one transgresses the due limits of shari‘ah. If one does not say one’s prayers, or if one does not fast during the month of Ramadan, or if one is financially and physically able to do so but does not go on Hajj, or if one fails to give zakat, or if one fails to act in accordance with the reality that God exists and that the Prophet Muhammad (peace be upon him) was given a Book of Divine revelation, or if one does not seek to acquire the noble character traits [such as forgiveness, tolerance, patience, gratitude, humility, steadfastness, love, generosity, and the like] which are part of what is sought by pursuing shari‘ah, then, one will have to deal with the problematic ramifications of such negligence in one’s day-to-day life.
Only when such ramifications spill over into the lives of others and, as a result, an individual’s negligence of shari‘ah leads to that individual pursuing courses of action that abuse, exploit, injure, or oppress others does the community have a right to step in and seek to restore harmony, peace, justice, and balance within the community. Such intercession is directed toward protecting the right of people in a community to be able to have the opportunity to make choices concerning shari‘ah – either toward it or away from it -- which are free from interference by others. These corrective efforts of the community are not directed at forcing some given transgressing individual to follow shari‘ah but, rather, is directed toward honoring the rights of individuals to have the opportunity to be free of oppression from others.
After such corrective measures are taken – and these measures need not be punitive and could involve attempts to mediate and reconcile individuals as a means of restoring balance and harmony in the community – if the individual who originally had introduced oppression into the lives of other people wishes to continue to choose to live life in opposition to the principles of shari‘ah, then, the person should be free to do so as long as such a life does not transgress further against the rights of others to be free of any tendencies toward oppression that may arise out of such choices. However, just as someone who does not wish to follow shari‘ah has no right to oppress others in the community, then the following is also true: those who wish to follow shari‘ah have no right to oppress others in the community in terms of the way the former wish to pursue shari‘ah.
Oppression is not about whether someone has transgressed this or that legal injunction. Oppression occurs when someone interferes with, or seeks to undermine and diminish, the sort of right with respect to which there is virtually universal consensus [and irrespective of whether someone believes in God or does not believe in God] – the right to be free to choose the course of one’s life. The responsibility which accompanies this right is a duty of care to others in the community – a responsibility which stipulates that however one exercises one’s basic right to choose, such choices cannot spill over and adversely affect the right of others to make similar free choices in their own lives.
Legal laws do not have to be transgressed in order to know that oppression exists in a family, community, or nation. All one needs to look at is whether there are imbalances and inequities among individuals in their respective abilities to effectively exercise the most basic of rights among human beings – that of free choice.
Freedom to choose is one of the most basic natural laws of the universe. When that natural principle is transgressed against, the result is oppression, irrespective of whether, or not, any legal rules have been broken.
In fact, in all too many societies, the legal laws which exist are intended to oppress people while simultaneously sanctioning the right of certain favored individuals under the law to oppress others with impunity. Indeed, in many Muslim nations and communities where certain laws are enforced which are referred to as shari‘ah -- but, in truth, are not shari‘ah – the legal structure of those communities and nations is set up in such a way so as to give government and religious authorities the right to impose what is called shari‘ah on people and thereby oppress them and, in the process, transgress against the freedom to choose which God has given to all human beings -- whether they believe, or they do not believe, in Divinity.
Just as air, water, and food are intended for all to use irrespective of whether, or not, they are believers in God, so, too, the right to choose is a basic entitlement of all human beings. In fact, at the very heart of shari‘ah is the right to freely choose among alternatives, and when legal injunctions which are referred to as shari‘ah are imposed on people, the very essence of shari‘ah is violated.
Those who are, by the Grace of God, good at exercising ijtihad – that is, those who are spiritually insightful, truly knowledgeable [as opposed to just being filled with information], as well as wise mujtahids [i.e., practitioners of ijtihad] perform an important service for those who are seeking counsel concerning the pursuit of shari‘ah. Nonetheless, that service is limited to offering counsel and nothing more, and, furthermore, no one has the right to take such counsel and use it to justify attempts to compel other human beings to live in accord with that counsel. To do so totally misses, if not distorts, the meaning and purpose of both being a mujtahid as well as pursuing shari‘ah.
The Prophet Muhammad (peace be upon him) is reported to have said: “When the qadi judges and does ijtihad and hits the mark, he has ten rewards; and when he does ijtihad and errs, he has one or two rewards.”
The Prophet is indicating in the foregoing that the exercising of an intention to seek truth and justice is rewarded in and of itself, even if it turns out that one who is exercising such an intention pursues a path which does not give expression to either truth or justice. Moreover, the foregoing also seems to indicate fairly clearly that ijtihad is the process of struggling for the truth of a matter, while being correct or in error concerning the results of that process is quite another matter altogether.
However, one should not assume that the Prophet was indicating in the previous Hadith that making errors concerning the exercise of ijtihad is okay and without consequences or that one has the right to impose such erroneous judgments on others. This latter point is especially relevant with respect to those individuals who have not been authorized by either God or the Prophet Muhammad (peace be upon him) to exercise ijtihad on behalf of a community – as opposed to exercising ijtihad in conjunction with respect to oneself … something which we all have been given the capacity and responsibility to do.
To make judgments as a mujtahid is not a matter of imposing shari‘ah on others. Rather, to make judgments as a mujtahid is to strive toward assisting members of a community to identify those tools of truth and principles of justice which might be useful resources to apply, like salve on a wound, to help alleviate the pain and difficulties which have ensued from some manner of disturbance in the peaceful fabric of a community so that harmony and balance may be restored through a peaceful reconciliation of differences and conflicts.
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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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